Power Reactor Security Requirements

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 50, 72, and 73

RIN 3150-AG63

Power Reactor Security Requirements

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Proposed rule.

SUMMARY:

The Nuclear Regulatory Commission (NRC) is proposing to amend the current security regulations and add new security requirements pertaining to nuclear power reactors. Additionally, this rulemaking includes new security requirements for Category I strategic special nuclear material (SSNM) facilities for access to enhanced weapons and firearms background checks. The proposed rulemaking would: Make generically applicable security requirements imposed by Commission orders issued after the terrorist attacks of September 11, 2001, based upon experience and insights gained by the Commission during implementation; fulfill certain provisions of the Energy Policy Act of 2005; add several new requirements that resulted from insights from implementation of the security orders, review of site security plans, and implementation of the enhanced baseline inspection program and force-on-force exercises; update the regulatory framework in preparation for receiving license applications for new reactors; and impose requirements to assess and manage site activities that can adversely affect safety and security. The proposed safety and security requirements would address, in part, a petition for rulemaking (PRM 50-80) that requests the establishment of regulations governing proposed changes to facilities which could adversely affect the protection against radiological sabotage.

DATES:

Submit comments by January 9, 2007. Submit comments specific to the information collection aspects of this rule by November 27, 2006. Comments received after the above dates will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after these dates.

ADDRESSES:

You may submit comments by any one of the following methods. Please include the following number “RIN 3150-AG63” in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed.

Mail comments to:

Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.

E-mail comments to: SECY@nrc.gov.

If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at (301) 415-1966. You may also submit comments via the NRC's rulemaking Web site at

http://ruleforum.llnl.gov.

Address questions about our rulemaking Web site to Carol Gallagher (301) 415-5905; E-mail

CAG@nrc.gov.

Comments can also be submitted via the Federal e-Rulemaking Portal

http://www.regulations.gov.

Hand deliver comments to:

11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays (telephone (301) 415-1966).

Fax comments to:

Secretary, U.S. Nuclear Regulatory Commission at (301) 415-1101.

You may submit comments on the information collections by the methods indicated in the Paperwork Reduction Act Statement.

Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at

http://ruleforum.llnl.gov.

Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at

http://www.nrc.gov/reading-rm/adams.html.

From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (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

PDR@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Richard Rasmussen, Office of Nuclear Security and Incident Response, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone (301) 415-0610; e-mail:

RAR@nrc.gov

or Mr. Timothy Reed, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone (301) 415-1462; e-mail:

TAR@nrc.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Rulemaking Initiation

III. Proposed Regulations

IV. Section-by-Section Analysis

V. Guidance

VI. Criminal Penalties

VII. Compatibility of Agreement State Regulations

VIII. Availability of Documents

IX. Plain Language

X. Voluntary Consensus Standards

XI. Finding of No Significant Environmental Impact

XII. Paperwork Reduction Act Statement

XIII. Public Protection Notification

XIV. Regulatory Analysis

XV. Regulatory Flexibility Certification

XVI. Backfit Analysis

I. Background

Following the terrorist attacks on September 11, 2001, the NRC conducted a thorough review of security to ensure that nuclear power plants and other licensed facilities continued to have effective security measures in place given the changing threat environment. Through a series of orders, the Commission specified a supplement to the Design Basis Threat (DBT), as well as requirements for specific training enhancements, access authorization enhancements, security officer work hours, and enhancements to defensive strategies, mitigative measures, and integrated response. Additionally, in generic communications, the Commission specified expectations for enhanced notifications to the NRC for certain security events or suspicious activities.

Most of the requirements in this proposed rulemaking are derived directly from, or through implementation of, the following four security orders:

• EA-02-026, “Interim Compensatory Measures (ICM) Order,” dated February 25, 2002 (March 4, 2002; 67 FR 9792).

• EA-02-261, “Access Authorization Order,” dated January 7, 2003 (January 13, 2003; 68 FR 1643).

• EA-03-039, “Security Personnel Training and Qualification Requirements (Training) Order,” dated April 29, 2003 (May 7, 2003; 68 FR 24514), and

• EA-03-086, “Revised Design Basis Threat Order,” dated April 29, 2003 (May 7, 2003; 68 FR 24517).

Nuclear power plant licensees revised their security plans, training and qualification plans, and safeguards contingency plans in response to these orders. The NRC completed its review and approval of all of the revised security plans, training and qualification plans, and safeguards contingency plans on October 29, 2004. These plans incorporated the enhancements instituted through the orders. While the specifics of these changes are Safeguards Information, in general, the changes resulted in enhancements such as increased patrols, augmented security forces and capabilities, additional security posts, additional physical barriers, vehicle checks at greater standoff distances, enhanced coordination with law enforcement and military authorities, augmented security and emergency response training, equipment, and communication, and more restrictive site access controls for personnel, including expanded, expedited, and more thorough employee background checks.

The Energy Policy Act of 2005 (EPAct 2005), signed into law on August 8, 2005, is another source of some of the proposed requirements reflected in this rulemaking. Section 653, for instance, allows the NRC to authorize licensees to use, as part of their protective strategies, an expanded arsenal of weapons, including machine guns and semi-automatic assault weapons. Section 653 also requires that all security personnel with access to any weapons undergo a background check that would include fingerprinting and a check against the Federal Bureau of Investigation's (FBI) National Instant Criminal Background Check System (NICS) database. These provisions of EPAct 2005 would be reflected in the newly proposed §§ 73.18 and 73.19, and the proposed NRC Form 754. Though this rulemaking primarily affects power reactor security requirements, to implement the EPAct 2005 provisions efficiently, the NRC expanded the rulemaking's scope in newly proposed §§ 73.18 and 73.19 to include facilities authorized to possess formula quantities or greater of strategic special nuclear material, i.e., Category I SSNM facilities. Such facilities would include production facilities, spent fuel reprocessing facilities, fuel processing facilities, and uranium enrichment facilities. Additionally, Section 651 of the EPAct 2005 requires the NRC to conduct security evaluations at selected licensed facilities, including periodic force-on-force exercises. That provision also requires the NRC to mitigate any potential conflict of interest that could influence the results of force-on-force exercises. These provisions would be reflected in proposed § 73.55.

Through implementing the security orders, reviewing the revised site security plans across the fleet of reactors, conducting the enhanced baseline inspection program, and evaluating force-on-force exercises, the NRC has identified some additional security measures that would provide additional assurance of a licensee's capability to protect against the DBT.

Finally, a petition for rulemaking submitted by the Union of Concerned Scientists and San Luis Obispo Mothers for Peace (PRM 50-80), requested the establishment of regulations governing proposed changes to facilities which could adversely affect their protection against radiological sabotage. This petition was partially granted on November 17, 2005 (70 FR 69690). The proposed new § 73.58 contains requirements to address the remaining issues.

The proposed amendments to the security requirements for power reactors, and for enhanced weapons requirements for power reactor and Category I SSNM facilities, would result in changes to the following existing sections and appendices in 10 CFR part 73:

• 10 CFR 73.2, Definitions.

• 10 CFR 73.55, Requirements for physical protection of licensed activities in nuclear power reactors against radiological sabotage.

• 10 CFR 73.56, Personnel access authorization requirements for nuclear power plants.

• 10 CFR 73.71, Reporting of safeguards events.

• 10 CFR 73, Appendix B, General criteria for security personnel.

• 10 CFR 73, Appendix C, Licensee safeguards contingency plans.

• 10 CFR 73, Appendix G, Reportable safeguards events.

The proposed amendments would also add three new sections to part 73:

• Proposed § 73.18, Firearms background checks for armed security personnel.

• Proposed § 73.19, Authorization for use of enhanced weapons.

• Proposed § 73.58, Safety/security interface requirements for nuclear power reactors.

The proposed rule would also add a new NRC Form 754 under the newly proposed § 73.18.

EPAct 2005 Weapons Guidelines

In order to accomplish Sec. 161A. of the Atomic Energy Act of 1954, as amended (AEA), concerning the transfer, receipt, possession, transport, import, and use of enhanced weapons and the requirements for firearms background checks, the NRC has engaged with representatives from the U.S. Department of Justice (DOJ), the FBI, and the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), to develop guidelines required by Sec. 161A.d of the AEA. The provisions of Sec.161A. of the AEA take effect upon the issuance of these guidelines by the Commission, with the approval of the Attorney General. The Commission will publish a separate

Federal Register

notice on the issuance of these guidelines. This proposed rule would not rescind the authority of certain NRC licensees, currently possessing automatic weapons through alternate processes, to possess such enhanced weapons; however, these licensees would be subject to the new firearms background check requirements of Sec. 161A. of the AEA. Information on new provisions (§§ 73.18 and 73.19) that would implement Sec. 161A. may be found in Section III.

Conforming and Corrective Changes

Conforming changes to the requirements listed below are proposed in order to ensure that cross-referencing between the various security regulations in part 73 is preserved, and to avoid revising requirements for licensees who are not within the scope of this proposed rule. The following requirements contain conforming changes:

• Section 50.34, “Contents of applications; technical information” would be revised to align the application requirements with the proposed revisions to appendix C to 10 CFR part 73.

• Section 50.54, “Conditions of licenses” would be revised to conform with the proposed revisions to sections in appendix C to 10 CFR part 73.

• Section 50.72, “Immediate notification requirements for operating nuclear power reactors” would be revised to state (in footnote 1) that immediate notification to the NRC may be required (per the proposed § 73.71 requirements) prior to the notification requirements under the current § 50.72.

• Section 72.212, “Conditions of general license issued under § 72.210” would be revised to reference the appropriate revised paragraph designations in proposed § 73.55.

• Section 73.8, “Information collection requirements: OMB approval” would be revised to add the newly proposed requirements (§§ 73.18, 73.19, 73.58, and NRC Form 754) to the list of sections and forms with Office of Management and Budget (OMB)

information collection requirements. A corrective revision to § 73.8 would also be made to reflect OMB approval of existing information collection requirements for NRC Form 366 under existing § 73.71.

• Section 73.70, “Records” would be revised to reference the appropriate revised paragraph designations in proposed § 73.55 regarding the need to retain a record of the registry of visitors.

Additionally, § 73.81, “Criminal penalties” which sets forth the sections within part 73 that are not subject to criminal sanctions under the AEA, would remain unchanged since willful violations of the newly proposed §§ 73.18, 73.19, and 73.58 may be subject to criminal sanctions.

Appendix B and appendix C to part 73 require special treatment in this rulemaking to preserve, with a minimum of conforming changes, the current requirements for licensees and applicants to whom this proposed rule would not apply. Accordingly, sections I through V of appendix B would remain unchanged, and the proposed new language for power reactors would be added as section VI. Appendix C would be divided into two sections, with Section I maintaining all current requirements, and Section II containing all proposed requirements related to power reactors.

II. Rulemaking Initiation

On July 19, 2004, NRC staff issued a memorandum entitled “Status of Security-Related Rulemaking” (accession number ML041180532) to inform the Commission of plans to close former security-related actions and replace them with a comprehensive rulemaking plan to modify physical protection requirements for power reactors. This memorandum described rulemaking efforts that were suspended by the terrorist activities of September 11, 2001, and summarized the security-related actions taken following the attack. In response to this memorandum, the Commission directed the staff in an August 23, 2004, Staff Requirements Memorandum (SRM) (COMSECY-04-0047, accession number ML042360548) to forego the development of a rulemaking plan, and provide a schedule for the completion of security-related rulemakings. The staff provided this schedule to the Commission by memorandum dated November 16, 2004 (accession number ML043060572). Subsequently, the staff revised its plans to amend the part 73 security requirements to include a requirement for licensees to assess and manage site activities that could compromise either safety or security (

i.e.

, the safety/security interface requirements). This revision is discussed in a memorandum dated July 29, 2005 (accession number ML051800350). Finally, by memorandum dated September 29, 2005 (COMSECY-05-0046, accession number ML052710167), the staff discussed its plans to incorporate select provisions of the EPAct 2005 into the power reactor security requirements rulemaking. In COMSECY-05-0046, dated November 1, 2005 (accession number ML053050439), the Commission approved the staff's approach in incorporating the select provisions of EPAct 2005.

III. Proposed Regulations

This section describes significant provisions of this rulemaking:

1.

EPAct 2005 weapons requirements.

The new §§ 73.18 and 73.19 would contain requirements to implement provisions of section 161A of the Atomic Energy Act of 1954, as amended (AEA). Section 653 of the EPAct amended the AEA by adding section 161A, “Use of Firearms by Security Personnel.” Section 161A provides new authority to the Commission to enhance security at certain NRC licensee and certificate holder facilities by authorizing the security personnel of those licensees or certificate holders to transfer, receive, possess, transport, import, and use an expanded arsenal of weapons, to include: Short-barreled shotguns, short-barreled rifles, and machine guns. In addition, section 161A also provides that NRC-designated licensees and certificate holders may apply to the NRC for authority to preempt local, State, or certain Federal firearms laws (including regulations) that prohibits the transfer, receipt, possession, transportation, importation, or use of handguns, rifles, shotguns, short-barreled shotguns, short-barreled rifles, machine guns, semiautomatic assault weapons, ammunition for such guns or weapons, and large capacity ammunition feeding devices. Prior to granting either authority, however, the Commission must determine that the proposed use of this authority is necessary in the discharge of official duties by security personnel engaged in protecting: (1) Facilities owned or operated by an NRC licensee or certificate holder and designated by the Commission, or (2) radioactive material or other property that is owned or possessed by an NRC licensee or certificate holder, or that is being transported to or from an NRC-regulated facility, if the Commission has determined the radioactive material or other property to be of significance to the common defense and security or public health and safety. Licensees and certificate holders must receive preemption authority before receiving NRC approval for enhanced weapons authority. Finally, the NRC may consider making preemption authority or enhanced-weapons authority available to other types of licensees or certificate holders in future rulemakings.

Under the provisions of section 161A.d, section 161A takes effect on the date that implementing guidelines are issued by the Commission after being approved by the U.S. Attorney General. Following enactment of the EPAct 2005, NRC staff began discussions with staffs from the U.S. Department of Justice (DOJ) and its subordinate agencies the Federal Bureau of Investigation (FBI) and the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to develop these guidelines. Issuance of these guidelines is a prerequisite for the issuance of a final rule on §§ 73.18 and 73.19, and the conforming changes in § 73.2. The proposed language for §§ 73.18 and 73.19, and the conforming changes in § 73.2, set forth in this proposed rule is consistent, to the extent possible, with the discussions between NRC and DOJ. However, because NRC and DOJ staffs continue to work to resolve the remaining issues, the guidelines have not been finalized as of the issuance of this notice. Once the final guidelines are issued, the Commission will, if necessary, take the appropriate actions to ensure that the language of proposed §§ 73.18, 73.19, and 73.2, conforms with the guidelines. The Commission is utilizing this parallel approach to provide the most expeditious process for promulgating the necessary regulations implementing section 161A; thereby enhancing the security (i.e., weapons) capabilities of NRC-licensed facilities, while being mindful of our obligations to provide stakeholders an opportunity to comment on proposed regulations.

2.

Safety/Security interface requirements.

These requirements are located in proposed § 73.58. The safety/security requirements are intended to explicitly require licensee coordination of potential adverse interactions between security activities and other plant activities that could compromise either plant security or plant safety. The proposed requirements would direct licensees to assess and manage these interactions so that neither safety nor security is compromised. These proposed requirements address, in part, a Petition for Rulemaking (PRM 50-80) that requested the establishment of regulations governing proposed changes

to the facilities which could adversely affect the protection against radiological sabotage.

3.

EPAct 2005 additional requirements.

The EPAct 2005 requirements that would be implemented by this proposed rulemaking, in addition to the weapons-related additions described previously, consist of new requirements to perform force-on-force exercises, and to mitigate potential conflicts of interest that could influence the results of NRC-conducted force-on-force exercises. These proposed new requirements would be included in proposed § 73.55 and appendix C to part 73.

4.

Accelerated notification and revised four-hour reporting requirements.

This proposed rule contains accelerated security notification requirements (i.e., within 15 minutes) in proposed § 73.71 and appendix G to part 73 for attacks and imminent threats to power reactors. The proposed accelerated notification requirements are similar to what was provided to the industry in NRC Bulletin 2005-02, “Emergency Preparedness and Response Actions for Security-Based Events,” dated July 18, 2005. The proposed rule also contains two new four-hour reporting requirements. The proposed rule would direct licensees to report to the NRC information pertaining to suspicious activities as described in the proposed requirement. The proposed rule would also include a new four-hour reporting requirement for tampering events that do not meet the current threshold for one-hour reporting.

5.

Mixed-oxide (MOX) fuel requirements.

These requirements would be incorporated into proposed § 73.55 for licensees who propose to use MOX fuel in their reactor(s). These proposed requirements are in lieu of unnecessarily rigorous part 73 requirements (e.g., §§ 73.45 and 73.46), which would otherwise apply because of the MOX fuel's low plutonium content and the weight and size of the MOX fuel assemblies. The proposed MOX fuel security requirements are intended to be consistent with the approach implemented at Catawba Nuclear Station through the MOX lead test assembly effort.

6.

Cyber-security requirements.

This proposed rule would contain more detailed programmatic requirements for addressing cyber security at power reactors, which build on the requirements imposed by the February 2002 order. The proposed cyber-security requirements are designed to be consistent with ongoing industry cyber-security efforts.

7.

Mitigating strategies.

The proposed rule would require licensees to develop specific guidance and strategies to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities using existing or readily available resources (equipment and personnel) that can be effectively implemented under the circumstances associated with the loss of large areas of the plant due to explosions or fire. These proposed requirements would be incorporated into the proposed appendix C to part 73.

8.

Access authorization enhancements.

The proposed changes would improve the integration of the access authorization requirements, fitness-for-duty requirements, and security program requirements. The proposed rule would include an increase in the rigor for some elements of the access authorization program including requirements for the conduct of psychological assessments, requirements for individuals to report arrests to the reviewing official, and requirements to clarify the responsibility for the acceptance of shared information. The proposed rule would also add requirements to allow NRC inspection of licensee information sharing records and requirements that subject additional individuals, such as those who have electronic access via computer systems or those who administer the access authorization program, to the access authorization requirements.

9.

Training and qualification enhancements.

The proposed rule includes modifications to the training and qualification requirements that are based on insights from implementation of the security orders, review of site security plans, and implementation of the enhanced baseline inspection program and force-on-force exercises. These new requirements would include additional physical requirements for unarmed security personnel to assure that 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 on-the-job training.

10.

Security Program Implementation insights.

The proposed rule would impose new enhancements identified from implementation of the security orders, review of site security plans, and implementation of the enhanced baseline inspection program and force-on-force exercises. These new requirements would include changes to specifically require that the central alarm station (CAS) and secondary alarm station (SAS) have functionally equivalent capabilities such that no single act can disable the key functions of both CAS and SAS. The proposed additions would also include requirements for new reactor licensees to position the SAS within the protected area, add bullet resistance and limit the visibility into SAS. Proposed additions also require uninterruptible backup power supplies for detection and assessment equipment, “video-capture” capability, and qualification requirements for drill and exercise controllers.

11.

Miscellaneous.

The proposed rule would eliminate some requirements that the staff found to be unnecessary, while still providing high assurance that activities involving special nuclear material are not inimical to the common defense and security and do not constitute an unreasonable risk to the public health and safety. One such requirement to be eliminated provides for guards to escort operators of motor vehicles within the protected area if the operators are cleared for unescorted access. The proposed rule would also add new requirements, including predefined provisions for the suspension of safeguards measures for severe weather conditions that could result in life-threatening situations for security personnel (e.g., tornadoes, floods, and hurricanes), and reduced overly-prescriptive requirements through the inclusion of performance-based language to allow flexibility in the methods used to accomplish requirements.

IV. Section-by-Section Analysis

IV.1. New Weapons Requirements

This proposed rulemaking would implement new weapons requirements that stem from the EPAct 2005. This is the only portion of this proposed rulemaking that involves facilities other than nuclear power reactors. The newly proposed weapons requirements would apply to power reactors and facilities authorized to possess a formula quantity or greater of strategic special nuclear material whose security plans are governed by §§ 73.20, 73.45, and 73.46. The new requirements would be in three different sections and would include the utilization of an NRC Form:

• Revised proposed § 73.2, “Definitions”.

• Proposed § 73.18, “Firearms background checks for armed security personnel”.

• Proposed § 73.19, “Authorization for use of enhanced weapons”.

• Proposed NRC Form 754, “Armed Security Personnel Background Check”.

Under proposed § 73.18, after the NRC approves the licensee's or certificate holder's application, all security personnel must have a satisfactorily completed firearms background check to have access to covered weapons. Licensees and certificate holders would be required under proposed § 73.19 to notify the NRC that they have satisfactorily completed a sufficient number of firearms background checks to staff their security organization. The firearms background checks required by proposed § 73.18 would be intended to verify that armed security personnel are not prohibited from receiving, possessing, transporting, or using firearms under Federal or State law. A firearms background check would consist of two parts, a check of an individual's fingerprints against the FBI's fingerprint system and a check of the individual's identity against the FBI's National Instant Criminal Background Check System (NICS). The NRC would propose a new NRC Form 754 for licensee or certificate holder security personnel to submit the necessary information to the NRC for forwarding to the FBI to perform the NICS portion of the firearms background check. The requirement to satisfactorily complete a firearms background check would apply to security personnel either directly employed by the licensee or certificate holder or employed by a security contractor to the licensee or certificate holder and whose official duties require access to covered weapons (i.e., armed security personnel) [see also new definitions for

covered weapons

,

enhanced weapons

, and

standard weapons

in § 73.2]. Additionally, the requirement for licensees or certificate holders to ensure that their security personnel have satisfactorily completed a firearms background check would apply to licensees and certificate holders who have applied for and received NRC approval of preemption authority or enhanced-weapons authority. In order to simplify the rule language, § 73.18 would only refer to applications for preemption authority because preemption authority would always be a necessary prerequisite for the receipt of enhanced weapons authority.

The NRC would propose that a licensee or certificate holder may begin firearms background checks on armed security personnel after the licensee or certificate holder has applied to the NRC for the preemption authority section 161A of the AEA. Because the NRC has not previously had the authority to require its licensees or certificate holders to complete firearms background checks on security personnel, in most instances these requirements would be new to licensees and uncertainties exist over the amount of time to complete these checks. Thus delays in completing the checks (e.g., the time necessary to resolve any errors of fact in the FBI's NICS databases) could reduce the number of available security officers and create fatigue or minimum staffing level issues. Therefore, the NRC envisions working with licensees and certificate holders on a case-by-case basis to establish the date for NRC approval of an application for preemption authority; and thereby ensure that the licensee's or certificate holder's security organizations can continue to adequately protect the facility when the approval is issued.

The Commission has not yet determined whether licensees and certificate holders may apply for preemption authority alone or combined preemption and enhanced-weapons authority prior to issuance of a final rule. In anticipation that the Commission does permit applications for section 161A authority prior to promulgation of a final rule, the proposed rule would include language to support a transition to these regulations from requirements imposed by Commission orders granting section 161A authority. The proposed rule would not, however, require a licensee or certificate holder to repeat a firearms background check for security personnel who previously satisfactorily completed a firearms background check that was required under Commission order. Consequently, this approach would provide both the Commission and industry with the maximum flexibility to expeditiously implement the security enhancements authorized by section 161A. The exception to this requirement would be for security personnel who have had a break in employment with the licensee or certificate holder or their security contractor, or who have transferred from another licensee or certificate holder (who previously completed a firearms background check on them). In either case these security personnel would be treated as new security personnel and they would be subject to a new firearms background check.

The proposed rule would also provide direction on how security personnel who have received an adverse firearms background check (i.e., a “denied” or “delayed” NICS response) may: (1) Obtain further information from the FBI on the reason for the adverse response, (2) appeal a “denied” response, or (3) provide additional information to resolve a “delayed” response. Security personnel would be required to apply directly to the FBI for these actions (i.e., the licensee or certificate holder may not appeal to the FBI on behalf of the security personnel). Only after such personnel have successfully appealed their “denied” response, and have subsequently received a “proceed” NICS response, would they be permitted access to covered weapons.

Security personnel who receive a “denied” NICS response are presumed by ATF to be prohibited from possessing or receiving a firearm under federal law (see 18 U.S.C. 922) and may not have access to covered weapons unless they have successfully appealed the “denied” NICS response and received a “proceed” NICS response. Because of the structure of section 161A, the proposed rule would not require licensees or certificate holders to remove personnel with a “denied” response until after the NRC has approved the licensee's or certificate holder's application for preemption authority (i.e., licensee's and certificate holders would not be subject to the requirements of § 73.18 until after the NRC's approval of their application for preemption authority is issued). However, the NRC's expectation is that current licensees or certificate holders who receive a “denied” response for current security personnel would remove those personnel from any security duties requiring possession of firearms to comport with applicable Federal law and ATF regulations.

The NRC would propose to charge the same fee for fingerprints submitted for a firearms background check as is currently imposed for fingerprints submitted for other NRC-required criminal history checks including fingerprints (i.e., an NRC administrative fee plus the FBI's processing fee). In addition, the NRC would charge an administrative fee for processing the NICS check information; however, no FBI fee would be charged for the NICS check.

The proposed § 73.19 would only apply to power reactor licensees and Category I special nuclear material licensees; therefore, only these two classes of licensees would be subject to the firearms background check provisions of § 73.18. The NRC may, however, consider making stand-alone preemption authority or combined enhanced-weapons authority and preemption authority available to other

types of licensees or certificate holders in future rulemakings.

In § 73.19, the NRC would propose requirements for a licensee or certificate holder to apply for stand-alone preemption authority or to apply for combined enhanced-weapons authority and preemption authority. Licensees and certificate holders who apply for enhanced-weapons authority, must also apply for and receive NRC approval of preemption authority as a necessary prerequisite to receiving enhanced-weapons authority. The NRC would propose limiting either authority to power reactor licensees and Category I SSNM licensees at this time. The NRC may consider applying this authority to other types of licensees, certificate holders, radioactive material, or other property (as authorized under section 161A) in future rulemakings. Obtaining enhanced-weapons authority from the NRC would be a necessary prerequisite for a licensee or certificate holder to apply under ATF's regulations for a Federal firearms license for these weapons. The NRC would propose that licensees and certificate holders who want to apply for enhanced-weapons authority must provide the NRC, for prior review and approval, a new or revised security plan, training and qualification plan, and safeguards contingency plan to reflect the use of these specific new weapons the licensee or certificate holder intends to employ and to provide a safety assessment of the onsite and offsite impact of these specific enhanced weapons.

The proposed rule would also provide direction on acceptable training standards for training and qualification on enhanced weapons. The NRC would require licensees and certificate holders to complete training and qualification of security personnel on any enhanced weapons, before these personnel employ those weapons to protect the facility. The NRC would also require Commission licensees and certificate holders to notify the NRC of any adverse ATF findings associated with ATF's inspections, audits, or reviews of their Federal firearms license (FFL) (i.e., an FFL held by an NRC licensee or certificate holder).

Finally, the NRC would propose to treat enhanced weapons the same as existing weapons for the purpose of “use” of these weapons; and therefore § 73.19 would cross reference to existing regulation in §§ 73.55 and 73.46 on the use of weapons by reactor licensees and by Category I SSNM licensees ( i.e., the NRC is not proposing separate requirements on enhanced weapons versus standard weapons; rather, requirements on the use of any weaponry possessed by the licensee or certificate holder should be appropriate for the facility).

To implement the new weapons provisions, three new terms would be added to § 73.2:

covered weapon, enhanced weapon,

and

standard weapon.

The proposed new weapons requirements and supporting discussion for the proposed language are set forth in more detail (including the proposed new definitions) in Table 1.

IV.2. Section 73.55, “Requirements for Physical Protection of Licensed Activities in Nuclear Power Reactors Against Radiological Sabotage”

Proposed § 73.55 contains security program requirements for power reactor licensees. The security program requirements in § 73.55 would apply to all nuclear power plant licensees that hold a 10 CFR part 50 license and to applicants who are applying for either a part 50 license or a part 52 combined license. Paragraph (a) of § 73.55 would identify the licensees and applicants for which the requirements apply, and the need for submitting to NRC (for review and approval) a “Physical Security Plan,” a “Training and Qualification Plan,” and a “Safeguards Contingency Plan.” Paragraph (b) of § 73.55 would set forth the performance objectives that govern power reactor security programs. The remaining paragraphs of § 73.55 would implement the detailed requirements for each of the security plans, as well as for the various features of physical security.

This section would be extensively revised in an effort to make generically applicable security requirements imposed by Commission orders issued after the terrorist attacks of September 11, 2001, based upon experience and insights gained by the Commission during implementation, fulfill certain provisions of the EPAct of 2005, and add several new requirements that resulted from evaluation insights from implementation of the security orders, review of site security plans, and implementation of the enhanced baseline inspection program and force-on-force exercises. The proposed regulations would require an integrated security plan that begins at the owner controlled area boundary and would implement defense-in-depth concepts and protective strategies based on protecting target sets from the various attributes of the design basis threat. Notable additions to the proposed § 73.55 are summarized below.

Cyber Security Requirements

The current security regulations do not contain requirements related to cyber security. Subsequent to the events of September 11, 2001, the NRC issued orders to require power reactor licensees to implement measures to enhance cyber security. These security measures required an assessment of cyber systems and the implementation of corrective measures sufficient to provide protection against the cyber threats at the time the orders were issued.

The proposed requirements maintain the intent of the security orders by establishing the requirement for a cyber security program to protect any system that, if compromised, can adversely impact safety, security, or emergency preparedness.

Requirements for CAS and SAS To Have Functionally Equivalent Capabilities Such That No Single Act Can Disable the Function of CAS and SAS

Current regulatory requirements ensure that both CAS and SAS have equivalent alarm annunciation and communication capabilities, but do not explicitly require equivalent assessment, monitoring, observation, and surveillance capabilities. Further, the current requirement of § 73.55(e)(1) states “All alarms required pursuant to this part must annunciate in a continuously manned central alarm station located within the protected area and in at least one other continuously manned station not necessarily onsite, so that a single act cannot remove the capability of calling for assistance or otherwise responding to an alarm.” The Commission orders added enhanced detection and assessment capabilities, but did not require equivalent capabilities for both CAS and SAS. The security plans approved by the Commission on October 29, 2004, varied, due to the performance-based nature of the requirements, with respect to how the individual licensees implemented these requirements, but all sites were required to provide a CAS and SAS with functionally equivalent capabilities to support the implementation of the site protective strategy.

The proposed rule would extend the requirement for no single act to remove capabilities to the key functions of the alarm stations and would require licensees to implement protective measures such that a single act would not disable the intrusion detection, assessment, and communications capabilities of both the CAS and SAS. This proposed requirement would ensure continuity of response

operations during a security event by ensuring that the detection, assessment, and communications functions required to effectively implement the licensee's protective strategy are maintained despite the loss of one or the other alarm station. For the purposes of assessing the regulatory burden of this proposed rule, the NRC assumed that all licensees would require assessments and approximately one third of the licensees would choose to implement hardware modifications.

The NRC has concluded that protecting the alarm stations such that a single act does not disable the key functions would provide an enhanced level of assurance that a licensee can maintain detection, assessment and communications capabilities required to protect the facility against the design basis threat of radiological sabotage. For new reactor licensees, licensed after the publication of this rule, the Commission would require CAS and SAS to be designed, constructed, and equipped with equivalent standards.

Uninterruptible Power for Intrusion Detection and Assessment Systems

Current regulatory requirements require back-up power for alarm annunciation and non-portable communication equipment, but do not require this back-up power to be uninterruptible. Although not specifically required, many licensees have installed uninterruptible power to their security systems for added reliability of these electronic systems. However, the Commission had not required uninterruptible power for assessment systems. For the purposes of assessing the regulatory burden of this proposed rule, the NRC assumed that only a small number of licensees would require hardware modifications to meet this proposed requirement.

Through implementation of the Commission-approved security plans, baseline inspections, and force-on-force testing, the NRC has concluded that uninterruptible back-up power would provide an enhanced level of assurance that a licensee can maintain detection, assessment and communication capabilities required to protect the facility against the design basis threat of radiological sabotage. This new requirement would reduce the risk of losing detection, assessment, and communication capabilities during a loss of the normal power supply.

“Video-Capture” Capability

Current regulatory requirements address the use of closed circuit television systems, but do not explicitly require them. Although not specifically required, all licensees have adopted the use of video surveillance in their site security plans. Many of the licensees have adopted advanced video surveillance technology to provide real-time and play-back/recorded video images to assist security personnel in determining the cause of an alarm annunciation. For the purposes of assessing the regulatory burden of this proposed rule, the NRC assumed that a small percentage of licensees would require hardware modifications to comply with this proposed requirement for advanced video surveillance technology.

Through implementation of the Commission-approved security plans, baseline inspections, and force-on-force testing, the NRC has concluded that advanced video technology would provide an enhanced level of assurance that a licensee can assess the cause of an alarm annunciation and initiate a timely response capable of defending the facility against the threat up to and including the design basis threat of radiological sabotage. Therefore the proposed rule would require advanced video surveillance technology.

Implementation of § 73.55 is linked principally to the application of appendix B to part 73, “General criteria for security personnel,” and appendix C to part 73, “Licensee safeguards contingency plans,” both of which would be revised in this proposed rulemaking. Proposed changes to these appendices are discussed in Sections IV.6 and IV.7 of this document.

Table 2 sets forth the proposed § 73.55 language as compared to the current language, and provides the supporting discussion for the proposed language including new definitions for security officer and target set that would be added to § 73.2. Because § 73.55 would be restructured extensively, Table 9 (See Section VIII) provides a cross reference to locate individual requirements of the current regulation within the proposed regulation.

The Commission is interested in obtaining specific stakeholder input on the impacts and burdens for certain areas of proposed changes to § 73.55. Due to the accelerated rulemaking schedule, the NRC staff's assessments of impacts to individual licensees as a result of the proposed new requirements have not been informed by stakeholder insights on potential implementation issues. Consequently, the Commission recognizes that its views on the feasability, costs, and time necessary to fully implement certain portions of this proposed rule (e.g., alarm station, supporting systems, video systems, and cyber security issues) by selected licensees may not be fully informed. Accordingly, the Commission is requesting persons commenting on this proposed rule to address the following questions:

1. What insights and estimates can stakeholders provide on the feasability, costs, and time necessary to implement the proposed rule's changes to existing alarm stations, supporting systems, video systems, and cyber security?

2. Are there any actions that should be considered, such as authorizing alternative measures, exemptions, extended implementation schedules, etc., that would allow the NRC to mitigate any unnecessary regulatory burden created by these requirements?

IV.3. Section 73.56, “Personnel Access Authorization Requirements for Nuclear Power Plants”

This section would continue to apply to all current part 50 licensees and to all applicants who are applying for a new reactor license under parts 50 or 52, but would be extensively revised. Proposed § 73.56 would retain the requirement for a licensee to determine that an individual is trustworthy and reliable before permitting the individual to have unescorted access to nuclear power plant protected areas and vital areas. The majority of the revisions in proposed § 73.56 reflect several fundamental changes to the NRC's approach to access authorization requirements since the terrorist attacks of September 11, 2001, and the NRC's concern with the threat of an active or passive insider who may collude with adversaries to commit radiological sabotage. These changes would include: (1) An increase in the rigor of some elements of the access authorization program to provide increased assurance that individuals who have unescorted access authorization are trustworthy and reliable; (2) an elimination of temporary unescorted access provisions [prior to the completion of the full background check]; (3) an elimination of the provisions that permit relaxation of the program when a reactor is in cold shutdown; and (4) the addition of a new category of individuals who would be subject to § 73.56.

Proposed § 73.56(b)(ii) would require licensees' access authorization programs to cover individuals whose job duties and responsibilities permit them to access or use digital computer systems that may affect licensees' operational safety and security systems, and emergency response capabilities. Historically digital computer systems have played a limited role in the operation of nuclear power plants. However, the role of computer systems

at nuclear power plants is increasing, as licensees take advantage of computer technology to maximize plant productivity. In general, licensees currently exclude from their access authorization programs, individuals who may electronically access equipment in the protected areas of nuclear power plants to perform their job functions, if their duties and responsibilities do not require physical unescorted access to the equipment located within protected or vital areas. However, because these individuals manage and maintain the networks that connect to equipment located within protected or vital areas and are responsible for permitting authorized and/or trusted personnel to gain electronic access to equipment and systems, they are often granted greater electronic privileges than the trusted and authorized personnel. With advancements in electronic technology and telecommunications, differences in the potential adverse impacts of a saboteur's actions through physical access and electronic access are lessening. Thus, the proposed rule would require those individuals who have authority to electronically access equipment that, if compromised, can adversely impact operational safety, security or emergency preparedness of the nuclear power plants, to be determined to be trustworthy and reliable.

The proposed revisions to § 73.56 would also address changes in the nuclear industry's structure and business practices since this rule was originally promulgated. At the time the current § 73.56 was developed, personnel transfers between licensees (i.e., leaving the employment of one licensee to work for another licensee) with interruptions in unescorted access authorization were less common. Most licensees operated plants at a single site and maintained an access authorization program that applied only to that site. When an individual left employment at one site and began working for another licensee, the individual was subject to a different access authorization program that often had different requirements. Because some licensees were reluctant to share information about previous employees with the new employer, licensees often did not have access to the information the previous licensee had gathered about the individual and so were required to gather the necessary information again. The additional effort to collect information that another licensee held created a burden on both licensees and applicants for unescorted access authorization. But, because few individuals transferred, the burden was not excessive.

However, since 1991, the industry has undergone significant consolidation and developed new business practices to use its workforce more efficiently. Industry efforts to better use staffing resources have resulted in the development of a transient workforce that travels from site to site as needed, such as roving outage crews. Although the industry has always relied on contractors and vendors (C/V) for special expertise and staff for outages, the number of transient personnel who work solely in the nuclear industry has increased and the length of time they are on site has decreased. Because the current regulations were written on the basis that the majority of nuclear personnel would remain at one site for years, and that licensees would maintain independent, site-specific access authorization programs and share limited information, the current regulations do not adequately address the transfer of personnel between sites.

In light of the NRC's increased concern with an insider threat since September 11, 2001, the increasingly mobile nuclear industry workforce has heightened the need for information sharing among licensee access authorization programs, including C/V authorization programs upon which licensees rely, to ensure that licensees have information that is as complete as possible about an individual when making an unescorted access authorization decision. To address this need, the access authorization orders issued by the NRC to nuclear power plant licensees on January 7, 2003, mandated increased sharing of information. In addition, proposed § 73.56 would require licensees and C/V to collect and share greater amounts of information than under the current rule, subject to the protections of individuals' privacy that would be specified in proposed § 73.56(m) [Protection of information]. As a result, individuals who are subject to this section would establish a detailed “track record” within the industry that would potentially cover their activities over long periods of time and would follow them if they change jobs and move to a new position that requires them to be granted unescorted access authorization by another licensee. The proposed requirement acknowledges the industry initiative to develop and utilize a database to ensure accurate information sharing between sites. This increased information sharing is necessary to provide high assurance that individuals who are granted and maintain unescorted access authorization are trustworthy and reliable when individuals move between access authorization programs. In addition, the increased information sharing would reduce regulatory burden on licensees when processing individuals who have had only short breaks between periods of unescorted access authorization.

Another change in the NRC's proposed approach to access authorization requirements is the result of a series of public meetings that were held with stakeholders during 2001-2004 to discuss potential revisions to 10 CFR part, 26, “Fitness-for-Duty Programs.” Part 26 establishes additional steps that the licensees who are subject to § 73.56 must take as part of the process of determining whether to grant unescorted access authorization to an individual or permit an individual to maintain unescorted access authorization. These additional requirements focus on aspects of an individual's behavior, character, and reputation related to substance abuse. They require the licensee and other entities who are subject to part 26 to conduct drug and alcohol testing of individuals and an inquiry into the individual's past behavior with respect to illegal drug use or consumption of alcohol to excess, as part of determining whether the individual may be granted unescorted access authorization. However, historically there have been some inconsistencies and redundancies between the § 73.56 access authorization requirements and the related requirements in part 26. These inconsistencies have led to implementation questions from licensees, as well as inconsistencies in how licensees have implemented the requirements. The redundancies have, in other cases, imposed an unnecessary regulatory burden on licensees.

During public meetings held to discuss potential changes to part 26, the stakeholders pointed out ambiguities in the terms used in both part 26 and § 73.56, apparent inconsistencies and redundancies in the related requirements, and reported many experiences in which the ambiguities and lack of specificity and clarity in current § 73.56 had resulted in unintended consequences. Although these meetings did not focus on § 73.56, many of the stakeholders' comments directly resulted in some of the proposed changes to § 73.56. (Summaries of these meetings, and any comments provided through the Web site, are available at

http://ruleforum.llnl.gov/cgi-bin/rulemake?source=Part26_risk&st=risk.

) In response to stakeholder requests, the

NRC has proposed language changes to improve the clarity and specificity of the requirements in proposed § 73.56 and substantially reorganized the section to present the requirements generally in the order in which they would apply to licensees' access authorization processes. The proposed changes are expected to result in more uniform implementation of the requirements, and, consequently, greater consistency in achieving the goals of § 73.56. Table 3 sets forth the proposed § 73.56 language as compared to the current language, and discusses the proposed language.

The Commission is interested in obtaining specific stakeholder input on the following two issues:

1. The Commission requests public comment specific to the appropriateness of the framework for the Insider Mitigation Program as specified by the proposed 10 CFR 73.55(b)(7)(i) and 73.55(b)(7)(ii). The proposed rule specifies that the Insider Mitigation Program include elements of the access authorization program, fitness-for-duty program, behavioral observation program, and various physical security measures for the purpose of providing assurance that insider activities would be detected before adverse affects could be realized.

2. The Commission requests public comment on the feasibility of adding a requirement to the proposed rule to require a modified escorted visitor access provision which would allow site visits by members of the public to limited areas of the facility for the purpose of enhancing public education and awareness through informational briefings and tours at the facility.

IV.4. Section 73.58 “Safety/Security Interface Requirements for Nuclear Power Reactors”

The NRC is proposing to add a new requirement to part 73 addressing the safety/security interface for nuclear power reactor licensees. The need for the proposed new requirement is based upon the NRC's experience in reviewing licensees' implementation of a significant number of new security requirements since the terrorist attacks of September 11, 2001. Licensees have always been required to ensure that any changes to safety functions, systems, programs, and activities do not have unintended consequences on other facility safety functions, systems, programs, and activities. Likewise, licensees have been required to ensure that any changes to security functions, systems, programs, and activities do not have unintended consequences on other facility security functions, systems, programs, and activities. However, the Commission has concluded that the pace, number, and complexity of these security changes warrant the establishment of a more formal program to ensure licensees properly assess the safety/security interface in implementing these changes.

On April 28, 2003, the Union of Concerned Scientists and the San Luis Obispo Mothers for Peace submitted a petition for rulemaking (PRM-50-80) requesting that, in part, the NRC's regulations establishing conditions of licenses and requirements for evaluating proposed changes, tests, and experiments for nuclear power plants be amended to require licensee evaluation of whether the proposed changes, tests, and experiments cause protection against radiological sabotage to be decreased and, if so, that the changes, tests, and experiments only be conducted with prior NRC approval. In SECY-05-0048, dated March 28, 2005, the NRC staff recommended that the Commission approve rulemaking for the requested action, but did not necessarily endorse the specific amendments suggested by the petition. In SECY-05-0048, dated June 28, 2005, the Commission directed the staff to develop the technical basis for such a rule and to incorporate its provisions within the ongoing power reactor security requirements rulemaking. This proposed rule addresses, in part, the petitioner's request by incorporating proposed § 73.58 within this rulemaking.

The Commission has determined that the proposed safety/security interface rule requirements are necessary because the current regulations do not specifically require evaluation of the effects of plant changes on security or the effects of security changes on plant safety. Further, current regulations do not require communication about the implementation and timing of changes, which would promote awareness of the effects of changing facility conditions and result in appropriate assessment and response.

The NRC is aware of a number of occurrences of adverse safety/security interactions at nuclear power plants over the years to justify consideration of a new rule. Examples of adverse interactions include: (1) Inadvertent security barrier breaches while performing maintenance activities (e.g., cutting of pipes that provided uncontrolled access to vital areas, removing ventilation fans or other equipment from vital area boundary walls without taking compensatory measures to prevent uncontrolled access into vital areas); (2) Blockage of bullet resisting enclosure's (or other defensive firing position's) fields of fire; (3) Erection of scaffolding and other equipment without due consideration of its impact on the site's applicable physical protection strategy; and (4) Staging of temporary equipment within security isolation zones.

Security could also adversely affect operations because of inadequate staffing of security force personnel on backshifts, weekends, and holidays, to support operations during emergencies (e.g., opening and securing vital area access doors to allow operations personnel timely access to safety-related equipment). Also, security structures, such as vehicle barriers, delay barriers, rerouted isolation zones, or defensive shields could adversely affect plant equipment such as valve pits, fire stations, other prepositioned emergency equipment, blowout panels, or otherwise interfere with operators responding to plant events.

The NRC considered many factors in developing this proposed new requirement. One of the factors considered is that existing change processes are focused on specific areas of plant activities, and that implementation of these processes is generally well understood by licensees. An example is found in § 50.54(p), which provides that a reactor licensee may make changes to its safeguards contingency plans without Commission approval provided that the changes do not decrease the safeguards effectiveness of the plan. Similarly, § 50.65(a)(4) provides that a reactor licensee shall assess and manage the increase in risk that may result from proposed maintenance activities. However, neither §§ 50.54(p) (security) nor 50.65(a)(4) (safety) require that an assessment for potential adverse impacts on safety/security interface be made before the proposed changes are implemented. The proposed § 73.58 would address this gap by requiring that, before implementing allowed changes, licensees must assess the changes with respect to the safety/security interface and, if potential adverse interactions are identified, take appropriate compensatory and/or mitigative action before making the changes.

The proposed rule reflects a performance-based approach and language which is sufficiently broad that, in addition to operating power reactors, it could be applied to other classes of licensees in separate rulemaking(s), if conditions warrant. In addition to the requirements in proposed § 73.58, a new definition for

safety/security interface would be added to § 73.2.

Table 4 sets forth the proposed § 73.58 language and provides the supporting discussion for the proposed language, including a new definition for safety/security interface that would be added to § 73.2.

IV.5. Section 73.71 “Reporting of Safeguards Events”

The events of September 11, 2001, emphasized the need for the capability to respond to coordinated attacks that could pose an imminent threat to national infrastructure such as nuclear power reactor sites. Prompt licensee notification to the NRC of a security event involving an actual or imminent threat would initiate the NRC's alerting mechanism for other nuclear facilities in recognition that an attack or threat against a single facility may be the prelude to attacks or threats against multiple facilities. In either case, timely communication of this event to the NRC, and the NRC's communication of the threat or attack to other licensees could reduce the adversaries' ability to engage in coordinated attacks and would strengthen the licensees' response posture. NRC would also initiate notifications to the Homeland Security/Federal response networks for an “Incident of National Significance,” as defined by the National Response Plan (NRP).

Currently, § 73.71(b)(1) requires power reactor licensees to notify the NRC within one hour of discovery, as described in Paragraph I of appendix G to 10 CFR part 73, “Reportable safeguards events.” In addition, § 50.72 establishes reporting requirements for events requiring an emergency declaration in accordance with a licensee's emergency plan. Licensee notification under § 50.72(a)(3) is required only after the threat is assessed, an “Emergency Class” is declared, and initial notification of appropriate State and local agencies are completed first (i.e., not upon discovery). The current timing of requirements of this notification would not allow the NRC to warn other licensees of a potential threat to their facilities in a prompt manner to allow other licensees to change their security posture in advance of a threat or potential attack. The Commission has previously advised licensees of the need to expedite their initial notification to the NRC. The proposed accelerated notification requirements are similar to those provided to licensees in NRC Bulletin 2005-02, “Emergency Preparedness and Response Actions for Security-Based Events,” dated July 18, 2005.

The proposed amendments to § 73.71 would add a new expedited notification requirement for licensees subject to the provisions of § 73.55 to notify the NRC Operations Center as soon as possible after the discovery of an imminent or actual threat against the facility as described in appendix G to part 73, but not later than 15 minutes after discovery. The proposed amendments to § 73.71 and appendix G to part 73 would also add two additional four-hour notification requirements for suspicious events and tampering events not otherwise covered under appendix G to part 73. The proposed § 73.71 would retain the requirement for the licensee to maintain a continuous communications channel for one-hour notifications upon request of the NRC. The proposed rule would not require a continuous communications channel for four-hour notifications, because of the lesser degree of urgency of these events. For 15-minute notifications, the NRC may request the licensee establish a continuous communications channel after the licensee has made any emergency notifications to State officials or local law enforcement and if the licensee has taken action to stabilize the plant following any transient [associated with the 15-minute notification]. In NRC Bulletin 2005-02, “Emergency Preparedness and Response Actions for Security-Based Events,” dated July 18, 2005, the NRC had indicated a continuous communications channel was not necessary for the new 15-minute notifications. However, in developing this proposed rule the Commission has evaluated the need to promptly obtain information of an unfolding event versus imposing an unreasonable burden on licensees in the midst of a rapidly unfolding event and possible plant transient. The Commission considers that the proposed regulation would provide a reasonable balance between these two objectives. Table 5 sets forth the proposed amendments to § 73.71 language as compared to the current language, and provides the supporting discussion for the proposed language. Table 8 sets forth the proposed amendments to the appendix G to part 73 language as compared to the current language, and provides the supporting discussion for the proposed language.

The Commission is interested in obtaining specific stakeholder input on the proposed changes to § 73.71 and appendix G to part 73 . Accordingly, the Commission is requesting persons commenting on this proposed rule to address the following question:

1. For the types of events covered by the proposed four-hour notification requirements in § 73.71 and appendix G to part 73, should the notification time interval of all or some of these notifications be different (e.g., a 1-hour, 2-hour, 8-hour, 24-hour notification)? If so, what notification time interval is appropriate? “Notification time interval” is meant to be the time from when a licensee recognizes that an event has occurred or is occurring to the time that the licensee reports the event to the NRC.

IV.6. Appendix B to Part 73, “General Criteria for Security Personnel”

Appendix B to part 73 provides requirements for the training and qualification of security personnel to ensure that security personnel can execute their duties. Following the events of September 11, 2001, the Commission determined that tactical proficiency and physical fitness requirements governing licensees' armed security force personnel needed to be enhanced. The proposed amendments to appendix B to part 73 make generically applicable security requirements imposed by Commission orders issued after the terrorist attacks of September 11, 2001, based upon experience and insights gained by the Commission during implementation and add several new requirements that resulted from evaluation insights from force-on-force exercises.

Notable additions to the proposed appendix B to part 73 requirements are summarized as follows:

Additional Physical Requirements and Minimum Age Requirements for Unarmed Members of the Security Organization

Unarmed security personnel perform duties similar to armed security personnel, such as detection, assessment, vehicle and personnel escort, and vital area controls. The current requirements for unarmed members of the security organization state, in part, that these individuals shall have no physical weaknesses or abnormalities that would affect their performance of assigned duties. However, the current rule does not require unarmed personnel to pass a physical examination to verify that they meet standards for vision, hearing, or some portions of psychological qualifications. The proposed rule would include a requirement to assure that unarmed security personnel are physically capable of performing their assigned duties.

Additionally, the current rule specifies a minimum age of 21 years old

for armed security personnel, but does not specify a minimum age requirement for unarmed security personnel. The proposed rule would require that unarmed members attain the age of 18 prior to assignment to establish a minimum age requirement for unarmed members of the security organization at a power reactor facility.

These proposed additional requirements would assure that personnel performing security functions, whether armed or unarmed, meet appropriate age, vision, hearing and psychological requirements commensurate with their assigned security duties.

Qualification Scores for Program Elements Required by the Training and Qualification Plan

The current rule includes daylight qualification scores of 70 percent for handguns, 80 percent for semiautomatic rifles, 50 percent for shotguns and a requirement for night fire familiarization with assigned weapons. The April 29, 2003, Training Order imposed new requirements for the firearms training and qualification programs at power reactor licensees. The Training Order retained the current daylight qualification scores of 70 percent for handguns, 80 percent for semiautomatic rifles and superceded the daylight qualification score of 50 percent for the shotgun. The order did not specify a qualification score for the daylight course of fire for the shotgun, only an acceptable level of proficiency. The order superceded the current rule for night fire familiarization and added courses of fire for night fire and tactical training with assigned weapons.

The proposed rule would retain the qualification scores of the existing regulations and add specific qualification scores for the daylight course of fire for the shotgun and/or enhanced weapons, the night fire qualification for shotguns, handguns, semiautomatic rifles and/or enhanced weapons and the tactical course of fire for all assigned weapons to remain consistent with the qualification scoring methodology contained in the current rule. The scoring methodology for the current rule and the proposed rule is consistent with the scoring methodology used for firearms programs at the local, State and Federal levels and is consistent with approved courses of fire from the law enforcement community and recognized national entities.

The proposed rule would also include a requirement for a qualification score of 80 percent for the annual written exam. The current rule does not provide a requirement for an annual written exam score. Likewise, the April 29, 2003, Training Order that required licensees to develop and implement an annual written exam also did not specify a qualification score. The Commission has determined that a score of 80 percent demonstrates a minimum level of understanding and familiarity of the material necessary to adequately perform security-related tasks. The 80-percent score would be consistent with minimum scores commonly utilized throughout the nuclear industry.

Qualification Requirements for Security Trainers, Personnel Assessing Psychological Qualifications and Armorer Certifications

The current rule and the security orders do not specifically address the qualification or certification of instructors, or other personnel that have assigned duties and responsibilities for implementation of training and qualification programs of power reactor licensees.

The proposed rule includes specific references to personnel that have assigned duties and responsibilities for implementation of training and qualification programs to ensure these persons are qualified and/or certified to make determinations of security personnel suitability, working condition of security equipment, and overall determinations that security personnel are trained and qualified to execute their assigned duties.

On-the-Job Training

The current rule states in part that each individual who requires training to perform assigned security duties shall, prior to assignment, be trained to perform these tasks and duties. Each individual shall demonstrate the required knowledge, skill and ability in accordance with specific standards of each task.

The proposed rule would specify the new requirement that the licensee include on-the-job training as part of the training and qualification program prior to assigning an individual to an unsupervised security position. This requirement is in addition to formal and informal classroom training. The on-the-job training program would provide the licensee the ability to assess an individual's knowledge, skill and ability to effectively carry-out assigned duties, in a supervised manner, within the actual work environment, before assignment, to an unsupervised position.

The proposed revision to appendix B of part 73 required special treatment in this rulemaking to preserve, with a minimum of conforming changes, the current requirements for licensees and applicants to whom this proposed rule would not apply. Accordingly, Section I through V of appendix B to part 73 would remain unchanged, and the proposed new language for power reactors would be added as Section VI.

Table 6 sets forth the proposed amendments to appendix B to part 73 and provides the supporting discussion for the proposed language. Because this section would be extensively restructured, Table 10 (See Section VIII) provides a cross-reference to locate individual requirements of the current regulation within the proposed regulation.

IV.7. Appendix C to Part 73, “Licensee Safeguards Contingency Plans”

Appendix C to part 73 provides requirements that govern the development of safeguards contingency plans. Following the terrorist attacks of September 11, 2001, the NRC conducted a thorough review of security to continue to ensure that nuclear power plants had effective security measures in place given the changing threat environment. The proposed appendix C would increase the information required in the safeguards contingency plans for responses to threats, up to and including, design basis threats, as described in § 73.1. Notable additions to the proposed appendix C to part 73 requirements are summarized below:

Mitigating Strategies

Current regulations do not include requirements to develop mitigating strategies for events beyond the scope of the design basis threat. The orders issued after September 11, 2001, included a requirement to preplan strategies for coping with such events. The proposed appendix C to part 73 would contain this element of the orders to require that licensees preplan strategies to respond to and mitigate the consequences of potential events, including those that may result in the loss of large areas of the plant due to explosions or fire.

Qualification Requirements for Drill and Exercise Controllers

The current rule and the security orders do not specifically address the qualification of personnel that are assigned duties and responsibilities for implementation of training and qualification drills and exercises at power reactor licensees.

The proposed rule includes specific references to personnel who function as drill and exercise controllers to ensure these persons are trained and qualified to execute their assigned duties. Drills

and exercises are key elements to assuring the preparedness of the licensee security force and must be conducted in a manner that demonstrates the licensee's ability to execute the protective strategy as described in the site security plans. Additionally, drills and exercises must be performed properly to assure they do not negatively impact personnel or plant safety.

The proposed revision to appendix C of part 73 required special treatment in this rulemaking to preserve, with a minimum of conforming changes, the current requirements for licensees and applicants to whom this proposed rule would not apply. Accordingly, appendix C to part 73 would be divided into two sections, with Section I maintaining all current requirements, and Section II containing all proposed requirements related to nuclear power reactors.

Table 7 sets forth the proposed amendments to appendix C to part 73 and provides the supporting discussion for the proposed language. Because this section would be extensively restructured, Table 11 (See Section VIII) is a cross-reference showing where individual requirements of the current regulation would be in the proposed regulation.

IV.8. Appendix G to Part 73, “Reportable Safeguards Events”

Proposed appendix G to part 73 provides requirements regarding the reporting of safeguards events. Proposed appendix G would contain changes to support the revised and accelerated reporting requirements which would be incorporated into this rulemaking. Proposed appendix G to part 73 would also contain revised four-hour reporting requirements that would require licensees to report to the NRC information of suspicious surveillance activities, attempts at access, or other similar information as addressed in Appendix G, section III (a)(1) and (2). Following September 11, 2001, the NRC issued guidance requesting that licensees report suspicious activities near their facilities to allow assessment by the NRC and other appropriate agencies. The proposed new reporting requirement would clarify this expectation to assure consistent reporting of this important information. Additionally, the proposed rule would contain an additional four-hour reporting requirement for tampering events that do not meet the threshold for reporting under the current one-hour requirements. The proposed reporting requirements for tampering events would allow NRC assessment of these events. Table 8 sets forth the proposed amendments to appendix G to part 73 and provides the supporting discussion for the proposed language.

The Commission is interested in obtaining specific stakeholder input on the following issue:

1. The Commission requests public comment on the need to establish an additional requirement for licensees to establish and maintain predetermined communication protocols, such as passwords, with the Nuclear Regulatory Commission in order to verify the authenticity of communications during a security event, to include requirements for uniform protocols to verify the authenticity of reports required under this proposed rule.

IV.9. Conforming and Corrective Changes

The following conforming changes would also be made: §§ 50.34 and 50.54 (references to the correct paragraphs of revised appendix C of part 73), § 50.72 (changes to § 73.71 reports), §§ 72.212 and 73.70 (references to the correct paragraphs due to renumbering of § 73.55), and § 73.8 (adding § 73.18, § 73.19, and revised to reflect new NRC form 754 to reflect recordkeeping or reporting burden). A corrective change would also be made to § 73.8 to reflect an existing recordkeeping or reporting burden for NRC Form 366 under § 73.71. However, no changes would be made to § 73.81(b) (due to the new §§ 73.18, 73.19, and 73.58), because willful violations of §§ 73.18, 73.19, and 73.58 may be subject to criminal penalties.

Table 1.—Proposed Part 73.18 and 73.19 and Conforming Changes to Part 73.2

[Firearms background checks for armed security personnel and authorization for preemption of firearms laws and use of enhanced weapons]

Proposed language

Considerations

§ 73.18 Firearms background checks for armed security personnel.

(a) Purpose. This section sets forth the requirements for completion of firearms background checks on armed security personnel at selected NRC-regulated facilities. Firearms background checks are intended to verify that security personnel whose duties require access to covered weapons are not prohibited from receiving, possessing, transporting, importing, or using such weapons under applicable Federal or State law. Licensees and certificate holders listed under paragraph (c) of this section who have applied for preemption authority under § 73.19 (i.e., § 73.19 authority), or who have been granted preemption authority by Commission order, are subject to the requirements of this section.

This new section would implement the firearms background check requirements of new section 161A of the Atomic Energy Act of 1954, as amended. Section 161A was added by section 653 of the Energy Policy Act of 2005.

The proposed rule language in §§ 73.18 and 73.19, and conforming changes to § 73.2 would be consistent with the guidelines required by section 161A.d to implement the provisions of section 161A. Section 161A.d requires the Commission to issue guidelines, with the approval of the Attorney General, for section 161A to take effect. In parallel and separate from this rulemaking effort, guidelines are being developed by staffs from the NRC and the Department of Justice (DOJ), [including staffs from the FBI and ATF].

During development of these guidelines, the DOJ indicated that the firearms background check provisions of section 161A only take effect if a triggering event occurs. A triggering event would occur when a licensee or certificate holder applies to the NRC to use the stand-alone preemption authority or the combined enhanced-weapons and preemption authority of section 161A. Therefore, armed security personnel of both current and future licensees and certificate holders would not be subject to the firearms background check provisions of the proposed § 73.18, unless their employing licensee or certificate holder applies for and receives § 73.19 authority from the NRC.

§ 73.18(b) General Requirements. (1) Licensees and certificate holders listed in paragraph (c) of this section who have received NRC approval of their application for preemption authority shall ensure that a firearms background check has been satisfactorily completed for all security personnel requiring access to covered weapons as part of their official security duties prior to granting access to any covered weapons to those personnel. Security personnel who have satisfactorily completed a firearms background check, but who have had a break in employment with the licensee, certificate holder, or their security contractor of greater than one (1) week subsequent to their most recent firearms background check, or who have transferred from a different licensee or certificate holder (even though the other licensee or certificate holder satisfactorily completed a firearms background check on such individuals), are not excepted from the requirements of this section

Paragraph (b)(1) would require current and future licensees and certificate holders who have received NRC approval of their application for preemption authority to ensure that all security personnel whose official duties require access to covered weapons satisfactorily complete a firearms background check. The firearms background check must be satisfactorily completed to permit access to covered weapons. The Commission intends for duties “requiring access to a covered weapon” to include such duties as: Security operations activities; training and qualification activities; and weapons' maintenance, handling, accountability, transport, and use activities. [See also new definitions for covered weapons, enhanced weapons, and standard weapons in § 73.2 at the end of Table 1]. A new firearms background check would be required for security personnel who have a break in employment or who have transferred from another licensee or certificate holder irrespective of whether the individual previously satisfactorily completed a firearms background check (i.e., such individuals would be treated as new security personnel and subject to a new firearms background check).

§ 73.18(b)(2) Security personnel who have satisfactorily completed a firearms background check pursuant to Commission orders are not subject to a further firearms background check under this section, unless these personnel have a break in service or transfer as set forth in paragraph (b)(1) of this section

The NRC staff recognizes that the Commission has not yet made a final decision on whether licensees and certificate holders may apply for preemption authority alone or combined preemption and enhanced-weapons authority prior to issuance of a final rule; however, the proposed rule would include language to support a transfer from any orders associated with such applications for section 161A authority to regulations and thereby provide both the Commission and industry with the maximum flexibility to expeditiously implement the security enhancements of section 161A.

Paragraph (b)(2) would exempt previously checked personnel from a recheck, except in the case of a break in service or transfer [as in paragraph (b)(1)].

§ 73.18(b)(3) A change in the licensee, certificate holder, or ownership of a facility, radioactive material, or other property designated under § 73.19, or a change in the security contractor that provides security personnel responsible for protecting such facilities, radioactive material, or other property, shall not constitute ‘a break in service’ or ‘transfer,’ as those terms are used in paragraph (b)(2) of this section

(4) Licensees and certificate holders listed in paragraph (c) of this section may begin the application process for firearms background checks under this section for security personnel whose duties require access to covered weapons immediately on application to the NRC for preemption authority

(5) Firearms background checks do not replace any other background checks or criminal history checks required for the licensee's or certificate holder's security personnel under this chapter

Paragraph (b)(3) would indicate that changes in the security contractor or ownership of the licensee or certificate holder are not triggering events that require a new firearms background check.

Paragraph (b)(4) would indicate that Licensee and certificate holders may begin submitting their security personnel for firearms background checks after the licensee or certificate holder has applied to the NRC for preemption authority alone or combined preemption and enhanced weapons authority (i.e., § 73.19 authority).

Paragraph (b)(5) would indicate that firearms background checks are in addition to access authorization or security clearance checks that security personnel currently undergo under other NRC regulations (e.g., §§ 11.15, 25.17 or 73.57). The NRC expects licensees and certificate holders who become aware of any new potentially derogatory information on current security personnel (through the completion of a firearms background check), to evaluate any such information for applicability as required by the licensee's or certificate holder's access authorization or security clearance programs.

§ 73.18(c) Applicability. This section applies to licensees or certificate holders who have applied for or received NRC approval of their application for § 73.19 authority or were issued Commission orders requiring firearms background checks

Paragraph (c) would define the applicability of § 73.18 to licensees or certificate holders who have applied for or received Commission approval of stand-alone preemption authority or combined enhanced-weapons and preemption authority [see considerations below for § 73.19(c) on the applicability of licensee and certificate holder under this proposed rule].

Note:

portions of this section would apply to licensee or certificate holder who has applied for, but not yet received preemption authority (e.g., requirements for submission of fingerprints) or those portions that would only apply to licensees or certificate holders who have received NRC approval of their application (e.g., requirements for removal of security personnel who have not yet satisfactorily completed a firearms background check). This section would also apply to power reactor and Category I SSNM licensees or certificate holders issued Commission orders requiring completion of firearms background checks [see consideration for paragraph (b)(2) above].

§ 73.18(d) Firearms background check requirements. A firearms background check for security personnel must include—

(1) A check of the individual's fingerprints against the Federal Bureau of Investigation's (FBI's) fingerprint system; and

(2) A check of the individual's identifying information against the FBI's National Instant Criminal Background Check System (NICS).

Paragraph (d) would identify the two components of a firearms background check that are required by section 161A (i.e., a fingerprint check and a NICS check).

The NICS was established pursuant to section 103.(b) of the Brady Handgun Violence Prevention Act (Pub. L. 103-159) and is maintained by the FBI.

§ 73.18(e) Firearms background check submittals.

(1) Licensees and certificate holders shall submit to the NRC, in accordance with § 73.4, for all security personnel requiring a firearms background check under this section—

(i) A set of fingerprints, in accordance with paragraph (n) of this section, and

(ii) A completed NRC Form 754.

Paragraph (e) would indicate the process for submitting to the NRC the two components of the firearms background check. Accomplishment of the NICS check would be based upon information submitted by the licensee or certificate holder to the NRC under new NRC Form 754 (see Section VIII of this notice for further information on this NRC Form).

§ 73.18(e)(2) Licensees and certificate holders shall retain a copy of all NRC Forms 754 submitted to the NRC for a period of one (1) year subsequent to the termination of an individual's access to covered weapons or to the denial of an individual's access to covered weapons

Paragraph (e)(2) would establish the records retention requirements for submitted NRC Forms 754.

§ 73.18(f) NICS portion of a firearms background check. The NRC will forward the information contained in the submitted NRC Forms 754 to the FBI for evaluation against the NICS. Upon completion of the NICS check, the FBI will inform the NRC of the results with one of three responses under 28 CFR part 25; “proceed,” “denied,” or “delayed,” and the associated NICS transaction number. The NRC will forward these results and the associated NICS transaction number to the submitting licensee or certificate holder. The licensee or certificate holder shall provide these results to the individual who completed the NRC Form 754

Paragraph (f) would indicate that the NRC is forwarding the information from submitted NRC Forms 754 to the FBI for evaluation against the NICS. The FBI will return one of the three results from the NICS check (per the FBI's regulations) and a NICS transaction number. The NRC will forward this returned information to the submitting licensee or certificate holder for forwarding to the individual security officer. The NICS transaction number is necessary for any future communications with the FBI on the NICS check (e.g., an individual's appeal of a “denied” NICS response).

§ 73.18(g) Satisfactory and adverse firearms background checks.

(1) A satisfactorily completed firearms background check means a “proceed” response for the individual from the NICS.

(2) An adversely completed firearms background check means a “denied” or “delayed” response from the NICS.

Paragraph (g) would set forth the criteria for a satisfactory firearms background check based upon the specific NICS response. The fingerprint checks mandated by section 161A support the accomplishment of the NICS check and resolution of any adverse NICS records; therefore, the NRC would not specify a [satisfactory or adverse] completion criteria for the fingerprint portion of the firearms background check.

§ 73.18(h) Removal from access to covered weapons. Licensees or certificate holders who have received NRC approval of their application for § 73.19 authority shall ensure security personnel are removed from duties requiring access to covered weapons upon the licensee's or certificate holder's knowledge of any disqualifying status or the occurrence of any disqualifying events under 18 U.S.C. 922(g) or (n), and the ATF's implementing regulations in 27 CFR part 478

Paragraph (h) would require the licensee or certificate holder to remove personnel who are prohibited from possessing or receiving firearms from duties requiring access to covered weapons. Disqualifying status or occurrences are found under the United States Code, Title 18, Section 922 and ATF's implementing regulations (see 27 CFR 478.32 and 478.11). See also considerations for § 73.18(b)(5).

§ 73.18(i) [Reserved]

Paragraph (i) would not be used to avoid confusion with the use of sub-sub paragraph (i).

§ 73.18(j) Security personnel responsibilities. Security personnel assigned duties requiring access to covered weapons shall promptly [within three (3) working days] notify their employing licensee's or certificate holder's security management (whether directly employed by the licensee or certificate holder or employed by a security contractor to the licensee or certificate holder) of the existence of any disqualifying status or upon the occurrence of any disqualifying events listed under 18 U.S.C. 922(g) or (n), and the ATF's implementing regulations in 27 CFR part 478 that would prohibit them from possessing or receiving a covered weapon

Paragraph (j) would require security personnel who become prohibited from possessing or receiving firearms due to a disqualifying status or occurrence of a disqualifying event to notify their licensee or certificate holder within three (3) days of this fact.

This paragraph would work in conjunction with the requirements of paragraphs (k), (m), and (n) and would require security personnel to self report the occurrence of any disqualifying status or events.

§ 73.18(k) Awareness of disqualifying events. Licensees and certificate holders who have received NRC approval of § 73.19 authority shall include within their NRC-approved security training and qualification plans instruction on—

(1) Disqualifying status or events specified in 18 U.S.C. 922(g) and (n), and ATF's implementing regulations in 27 CFR part 478 (including any applicable definitions) identifying categories of persons who are prohibited from possessing or receiving any covered weapons; and

(2) The continuing responsibility of security personnel assigned duties requiring access to covered weapons to promptly notify their employing licensee or certificate holder of the occurrence of any disqualifying events.

Paragraph (k) would require licensees and certificate holders to train security personnel on disqualifying status or events to facilitate self reporting of such status or events by security personnel under paragraph (j). And to train security personnel on their ongoing responsibility to report disqualifying status or events to their licensee or certificate holder.

§ 73.18(l) [Reserved]

Paragraph (l) would not be used to avoid confusion with the use of sub-paragraph (1) [see also paragraph (i) above].

§ 73.18(m) Notification of removal. Within 72 hours after taking action to remove security personnel from duties requiring access to covered weapons, because of the existence of any disqualifying status or the occurrence of any disqualifying event—other than due to the prompt notification by the security officer under paragraph (j) of this section—licensees and certificate holders who have received NRC approval of § 73.19 authority shall notify the NRC Operations Center of such removal actions, in accordance with appendix A of this part

Paragraph (m) would require licensees or certificate holders to report instances where security personnel (with current access to weapons) are removed from armed duties because of the occurrence of any disqualifying status or event. The timeliness of this notification would be based upon the need for appropriate NRC followup of a potential criminal violation, rather than the followup necessary for an ongoing security event (i.e., the individual no longer has access to covered weapons). Appendix A provides contact information for the NRC Operations Center.

§ 73.18(n) Reporting violations of law. The NRC will promptly report suspected violations of Federal law to the appropriate Federal agency or suspected violations of State law to the appropriate State agency

Paragraph (n) would indicate that if the NRC becomes aware of suspected violations of criminal law (e.g., a prohibited person actually possessing weapons as a security officer) it is obligated to report suspected violations of Federal or State law to the appropriate government agency or agencies.

§ 73.18(o) Procedures for processing of fingerprint checks. (1) Licensees and certificate holders who have applied for § 73.19 authority, using an appropriate method listed in § 73.4, shall submit to the NRC's Division of Facilities and Security one (1) completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where practicable, other fingerprint record for each individual requiring a firearms background check, to the NRC's Director, Division of Facilities and Security, Mail Stop T6-E46, ATTN: Criminal History Check. Copies of this form may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling (301) 415-5877, or by e-mail to

FORMS@nrc.gov.

Guidance on what alternative formats, including electronic submissions, may be practicable are referenced in § 73.4

Paragraph (o) would prescribe the location, method, and requirements for submission of fingerprints to the NRC as part of a firearms background check.

The proposed language would be essentially identical to that contained to the current fingerprint submission requirements under the current access authorization regulations in § 73.57(d).

§ 73.18(o)(2) Licensees and certificate holders shall indicate on the fingerprint card or other fingerprint record that the purpose for this fingerprint check is the accomplishment of a firearms background check

See considerations for § 73.18(o). This provision will permit proper internal routing of fingerprints within the FBI's Criminal Justice Information Services Division to support the NICS checks.

§ 73.18(o)(3) Licensees and certificate holders shall establish procedures to ensure that the quality of the fingerprints taken results in minimizing the rejection rate of fingerprint cards or records due to illegible or incomplete information

See considerations for § 73.18(o).

§ 73.18(o)(4) The Commission will review fingerprints for firearms background checks for completeness. Any Form FD-258 or other fingerprint record containing omissions or evident errors will be returned to the licensee or certificate holder for corrections. The fee for processing fingerprint checks includes one (1) free re-submission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one (1) free re-submission must have the FBI Transaction Control Number reflected on the re-submission. If additional submissions are necessary, they will be treated as an initial submittal and require a second payment of the processing fee. The payment of a new processing fee entitles the submitter to an additional free re-submittal, if necessary. Previously rejected submissions may not be included with the third submission because the submittal will be rejected automatically. Licensees and certificate holders may wish to consider using different methods for recording fingerprints for resubmissions, if difficulty occurs with obtaining a legible set of impressions

See considerations for § 73.18(o).

§ 73.18(o)(5)(i) Fees for the processing of fingerprint checks are due upon application. Licensees and certificate holders shall submit payment with the application for the processing of fingerprints, and payment must be made by corporate check, certified check, cashier's check, money order, or electronic payment, made payable to “U.S. NRC.”

a

Combined payment for multiple applications is acceptable

See considerations for § 73.18(o).

(ii) The application fee is the sum of the user fee charged by the FBI for each fingerprint card or other fingerprint record submitted by the NRC on behalf of a licensee or certificate holder, and an administrative processing fee assessed by the NRC. The NRC processing fee covers administrative costs associated with NRC handling of licensee and certificate holder fingerprint submissions. The Commission publishes the amount of the fingerprint check application fee on the NRC's public Web site.

b

The Commission will directly notify licensees and certificate holders who are subject to this regulation of any fee changes

Footnotes:

a

For guidance on making electronic payments, contact the NRC's Security Branch, Division of Facilities and Security, Office of Administration at (301) 415-7404

b

For information on the current fee amount, refer to the Electronic Submittals page at

http://www.nrc.gov/site-help/eie.html

and select the link for the Criminal History Program

§ 73.18(o)(6) The Commission will forward to the submitting licensee or certificate holder all data received from the FBI as a result of the licensee's or certificate holder's application(s) for fingerprint background checks, including the FBI's fingerprint record

See considerations for § 73.18(o).

§ 73.18(p) Appeals and correction of erroneous system information

(1) Individuals who require a firearms background check under this section and who receive a “denied” NICS response or a “delayed” NICS response may not be assigned duties requiring access to covered weapons during the pendency of an appeal of the results of the check or during the pendency of providing and evaluating any necessary additional information to the FBI to resolve the “delayed” response, respectively

(2) Licensees and certificate holders shall provide information on the FBI's procedures for appealing a “denied” response to the denied individual or on providing additional information to the FBI to resolve a “delayed” response

(3) An individual who receives a “denied” or “delayed” NICS response to a firearms background check under this section may request the reason for the response from the FBI. The licensee or certificate holder shall provide to the individual who has received the “denied” or “delayed” response the unique NICS transaction number associated with the specific firearms background check

(4) These requests for the reason for a “denied” or “delayed” NICS response must be made in writing, and must include the NICS transaction number. The request must be sent to the Federal Bureau of Investigation; NICS Section; Appeals Service Team, Module A-1; PO Box 4278; Clarksburg, WV 26302-9922. The FBI will provide the individual with the reasons for the “denied” response or “delayed” response. The FBI will also indicate whether additional information or documents are required to support an appeal or resolution, for example, where there is a claim that the record in question does not pertain to the individual who was denied

Paragraph (p)(1) would indicate that individuals who have received a “denied” response or a “delayed” response may not be assigned duties requiring access to covered weapons during their appeal of the denial or resolution of the delay.

Paragraph (p)(2) would indicate that the licensee or certificate holder will provide information on the FBI's appeals process to the denied individual. The NRC and FBI are considering creating a brochure describing the appeals process or resolution process that would be similar to the FBI's current brochure [describing the NICS appeals process] provided by federal firearms licensees to individuals receiving a “denied” NICS response (see example at the FBI's NICS information website at

http://www.fbi.gov/hq/cjisd/nics/index.htm

).

Paragraph (p)(3) would indicate that the individual who receives a “denied” or “delayed” response must personally make any requests to the FBI on the reason for the NICS response; and the licensee or certificate holder may not make such requests upon the individual's behalf.

Paragraph (p)(4) would provide the FBI's address for correspondence. Additionally, in response to the individual's request the FBI would provide the person the reason for the denial or the delay to facilitate any appeals or to facilitate providing supplemental information to resolve a “delayed” response.

§ 73.18(p)(5) If the individual wishes to challenge the accuracy of the record upon which the “denied” or “delayed” response is based, or if the individual wishes to assert that his or her rights to possess or receive a firearm have been restored by lawful process, he or she may make application first to the FBI. The individual shall file an appeal of a “denied” response or file a request to resolve a “delayed” response within 45 calender days of the date the NRC forwards the results of the firearms background check to the licensee or certificate holder. The appeal or request must include appropriate documentation or record(s) establishing the legal and/or factual basis for the challenge. Any record or document of a court or other government entity or official furnished in support of an appeal must be certified by the court or other government entity or official as a true copy. The individual may supplement their initial appeal or request—subsequent to the 45 day filing deadline—with additional information as it becomes available, for example, where obtaining a true copy of a court transcript may take longer than 45 days. The individual should note in their appeal or request any information or records that are being obtained, but are not yet available.

(6) If the individual is notified that the FBI is unable to resolve the appeal, the individual may then apply for correction of the record directly to the agency from which the information forming the basis of the denial was originated. If the individual is notified by the originating agency, that additional information or documents are required the individual may provide them to the originating agency. If the record is corrected as a result of the appeal to the originating agency, the individual may so notify the FBI and submit written proof of the correction.

Paragraph (p)(5) would set a time limit for filing an initial appeal of a “denied” response or to request resolution of a “delayed” response to encourage timely resolution of such cases and facilitate FBI disposition of interim records. The individual filing the appeal would be required to set forth the basis for the appeal and provide information supporting their claim. Copies of records would be required to be true copies (i.e., certified by a court or other government entity). Because some supplemental information may take longer than 45 days to obtain, individuals filling an appeal or requesting resolution should not delay their filing in order to gather all necessary information, but would indicate that additional supporting information will be forthcoming.

Paragraph (p)(6) would indicate that if an individual cannot resolve a record with the FBI, the individual may apply to the originating agency to correct the record and notify the FBI of those results.

The originating agency may respond to the individual's application by addressing the individual's specific reasons for the challenge, and by indicating whether additional information or documents are required. If the record is corrected as a result of the appeal to the originating agency, the individual may so notify the FBI, which would, in turn, verify the record correction with the originating agency (assuming the originating agency has not already notified the FBI of the correction) and take all necessary steps to correct the record in the NICS system.

§ 73.18(p)(7) An individual who has satisfactorily appealed a “denied” response or resolved a “delayed” response may provide written consent to the FBI to maintain information about himself or herself in a Voluntary Appeal File (VAF) to be established by the FBI and checked by the NICS for the purpose of preventing the erroneous denial or extended delay by the NICS of any future NICS checks

(8) Individuals appealing a “denied” response or resolving a “delayed” response are responsible for providing the FBI any additional information the FBI requires to resolve the “delayed” response

Paragraph (p)(7) would indicate that an individual who has successfully resolved a “denied” or “delayed” response may consent to the FBI maintaining information about himself or herself in the FBI's VAF (i.e., the basis for the successful resolution). The FBI will issue such individuals a VAF number that can be entered on an NRC Form 754 or ATF Form 4417 to prevent repetition of excessive delays in completing any future NICS checks (both for checks as security personnel and for checks of individuals engaging in a firearms transaction as a private person).

A VAF file would be used only by the NICS for this purpose. The FBI would remove all information in the VAF pertaining to an individual upon receipt of a written request by that individual. However, the FBI may retain such information contained in the VAF as long as needed to pursue cases of identified misuse of the system. If the FBI finds a disqualifying record on the individual after his or her entry into the VAF, the FBI may remove the individual's information from the file. Paragraph (p)(8) would indicate that the responsibility for providing any necessary additional information to the FBI to appeal the “denied” response or resolve the “delayed” rests with the individual, not with the FBI.

§ 73.19 Authorization for preemption of firearms laws and use of enhanced weapons.

(a) Purpose. This section sets forth the requirements for licensees and certificate holders to obtain NRC approval to use the expanded authorities provided under section 161A of the Atomic Energy Act of 1954, as amended (AEA), in protecting NRC-designated facilities, radioactive material, or other property. These authorities include “preemption authority” and “enhanced-weapons authority.”

This new section would implement the provisions of new section 161A of the AEA with respect to preemption authority alone or combined enhanced-weapons authority and preemption authority. This section would permit, but not require, selected classes of licensees and certificate holders to apply to the NRC for these authorities.

Paragraph (a) would provide the overall purpose and indicate that this section applies to defending NRC-designated facilities, radioactive material, or other property.

§ 73.19(b) General Requirements. Licensees and certificate holders listed in paragraph (c) of this section may apply to the NRC, in accordance with the provisions of this section, to receive stand-alone preemption authority or combined enhanced weapons authority and preemption authority

(1) Preemption authority, as provided in section 161A of the AEA, means the authority of the Commission to permit licensees or certificate holders, or the designated security personnel of the licensee or certificate holder, to transfer, receive, possess, transport, import, or use one (1) or more category of standard and enhanced weapons, as defined in § 73.2, notwithstanding any local, State, or certain Federal firearms laws (including regulations)

(2) Enhanced weapons authority, as provided in section 161A of the AEA, means the authority of the Commission to permit licensees or certificate holders, or the designated security personnel of the licensee or certificate holder, to transfer, receive, possess, transport, import, and use one (1) or more category of enhanced weapons, as defined in § 73.2, notwithstanding any local, State, or certain Federal firearms laws (including regulations)

Paragraph (b) would contain general requirements and overview of the advantages of these two authorities. The ability of licensees and certificate holders to apply to the NRC for stand-alone preemption authority or combined enhanced-weapons authority and preemption authority would be limited to the classes of licensees set forth in paragraph (c) of this section.

Licensees and certificate holders may apply for preemption authority alone. However, licensees and certificate holders who apply for enhanced-weapons authority would also be required to apply for preemption authority, because of restrictions on the possession of enhanced weapons require the preemption of certain regulations. The NRC would create this separate, but parallel, structure to provide licensees with flexibility in choosing security capabilities versus security costs.

Paragraphs (b)(1) and (b)(2) provide definitions of these two authorities.

§ 73.19(b)(3) Prior to receiving NRC approval of enhanced-weapons authority, the licensee or certificate holder must have applied for and received NRC approval for preemption authority, in accordance with this section or under Commission orders

(4) Prior to granting either authority the NRC must determine that the proposed use of this authority is necessary in the discharge of official duties by security personnel engaged in protecting—

(i) Facilities owned or operated by a licensee or certificate holder and designated by the Commission under paragraph (c) of this section, or

(ii) Radioactive material or other property that is owned or possessed by a licensee or certificate holder, or that is being transported to or from an NRC-regulated facility. Before granting such approval, the Commission must determined that the radioactive material or other property is of significance to the common defense and security or public health and safety and has designated such radioactive material or other property under paragraph (c) of this section

Paragraph (b)(3) would indicate that to receive enhanced-weapons authority, a licensee or certificate holder must also have received preemption authority.

Paragraph (b)(4) would describe the criteria of section 161A the Commission must determine are present for a licensee or certificate holder to apply to the NRC for stand-alone preemption authority or combined enhanced-weapons authority and preemption authority for other types of facilities, radioactive material, or other property.

§ 73.19(c) Applicability. (1) The following classes of licensees or certificate holders may apply for stand-alone preemption authority—

(i) Power reactor facilities; and

(ii) Facilities authorized to possess a formula quantity or greater of strategic special nuclear material with security plans subject to §§ 73.20, 73.45, and 73.46.

(2) The following classes of licensees or certificate holders may apply for combined enhanced-weapons authority and preemption authority—

(i) Power reactor facilities; and

(ii) Facilities authorized to possess a formula quantity or greater of strategic special nuclear material with security plans subject to §§ 73.20, 73.45, and 73.46.

Paragraph (c)(1) would limit the types of licensees who could apply for stand-alone preemption authority alone to two classes of NRC-regulated facilities—power reactor facilities and fuel cycle facilities authorized to possess Category I quantities of SSNM. Such SSNM fuel cycle facilities would include: production facilities, spent fuel reprocessing facilities, fuel fabrication facilities, and uranium enrichment facilities. However, they would not include hot cell facilities, independent spent fuel storage installations, monitored retrievable storage installations, geologic repository operations areas, non-power reactors, byproduct material facilities, and the transportation of spent fuel, high level waste, and special nuclear material.

Paragraph (c)(2) would also limit the types of licensees who could apply for combined enhanced-weapons authority and preemption authority to these same two classes of licensed facilities.

The Commission is proposing under this rulemaking to limit the range of facilities, radioactive material, or other property [for which these authorities are appropriate] to power reactor facilities and fuel cycle facilities authorized to possess Category I quantities of strategic special nuclear material. The Commission would take this approach to be consistent with the scope of this rulemaking. The Commission may consider other types of facilities, radioactive material, or other property as appropriate for these authorities in future rulemakings. Additionally, the Commission would use the parallel structure in paragraph (c) to facilitate future rulemakings. Specifically, the Commission recognizes that enhanced-weapons authority may not be appropriate for all present and future classes of licensees with armed security programs; whereas the applicability of preemption authority to all present and future classes of licensees with armed security programs may be much broader.

§ 73.19(c)(3) With respect to the possession and use of firearms by all other NRC licensees or certificate holders, the Commission's requirements in effect before [effective date of final rule] remain applicable, except to the extent those requirements are modified by Commission order or regulations applicable to such licensees and certificate holders

Paragraph (b)(3) would indicate that the provisions of this section do not supersede existing Commission regulations or orders for non-power reactor and non-Category I SSNM licensees, unless specifically indicated.

§ 73.19(d) Authorization for stand-alone preemption of firearms laws. (1) Licensees and certificate holders listed in paragraph (c) of this section may apply to the NRC for the preemption authority described in paragraph (b)(1) of this section. Licensees and certificate holders seeking such authority shall submit an application to the NRC in writing, in accordance with § 73.4, and indicate that the licensee or certificate holder is requesting preemption authority under section 161A of the AEA

(2) Licensees and certificate holders who have applied for preemption authority under this section may begin firearms background checks under § 73.18 for their armed security personnel

(3) Licensees and certificate holders who have applied for preemption authority under this section and who have satisfactorily completed firearms background checks for a sufficient number of security personnel (to implement their security plan while meeting security personnel fatigue requirements of this chapter or Commission order) shall notify the NRC, in accordance with § 73.4, of their readiness to receive NRC approval of preemption authority and implement all the provisions of § 73.18

Paragraph (d)(1) would describe the process for a licensee or certificate holder to apply for preemption authority. This would be a voluntary action. Based upon the Commission's conclusion that the classes of facilities listed under paragraph (c) are appropriate for the use of such preemption authority, no additional documentation or supporting information would be required by a licensee or certificate holder to apply for preemption authority other than the licensee or certificate holder is included within the list of licenses and certificate holders in paragraph (c).

Paragraph (d)(2) would permit licensees and certificate holders who have applied for preemption authority to begin submitting their security personnel for firearms background checks under § 73.18.

Paragraph (c)(3) would require licensees and certificate holders who applied for preemption authority to subsequently notify the NRC of their readiness to fully implement § 73.18 without adverse impact on the security organization (i.e., the provisions in § 73.18 requiring removal from armed duties of personnel with a “denied” or “delayed” response would not adversely affect the licensee's or certificate holder's security organization).

§ 73.19(d)(4) Based upon the licensee's or certificate holder's readiness notification and any discussions with the licensee or certificate holder, the NRC will document in writing to the licensee or certificate holder that the Commission has approved or disapproved the licensee's or certificate holder's application for preemption authority

Paragraph (d)(4) would indicate that the NRC will rely upon the licensee's or certificate holder's determination that sufficient numbers of its security personnel have satisfactorily passed the firearms background check to fully implement the provisions of § 73.18. The NRC would document in writing its approval or disapproval of the licensee's or certificate holder's application for preemption authority. The NRC may also rely upon discussions with the licensee or certificate holder to reach a conclusion.

§ 73.19(e) Authorization for use of enhanced weapons. (1) Licensees and certificate holders listed in paragraph (c)(2) of this section may apply to the NRC for enhanced-weapons authority described in paragraph (a)(2) of this section. Licensees and certificate holders applying for enhanced-weapons authority shall have also applied for preemption authority. Licensees and certificate holders may make these applications concurrently

(2) Licensees and certificate holders seeking enhanced-weapons authority shall submit an application to the NRC, in accordance with § 73.4, indicating that the licensee or certificate holder is requesting enhanced-weapons authority under section 161A of the AEA. Licensees and certificate holders shall also include with their application—

(i) The additional information required by paragraph (f) of this section;

(ii) The date they applied to the NRC for preemption authority (if not concurrent with the application for enhanced weapons authority); and

(iii) If applicable, the date when the licensee or certificate holder received NRC approval of their application for preemption authority under this section or via Commission order.

Paragraph (e)(1) would describe the process for a licensee or certificate holder to apply for combined enhanced-weapons authority and preemption authority. A licensee or certificate holder would be permitted to apply for preemption authority in conjunction with an application for enhanced-weapons authority, or the licensee or certificate holder may apply for preemption authority first. Only the classes of licensees and certificate holders listed under paragraph (c)(2) would be permitted to apply for combined enhanced-weapons authority and preemption authority.

Paragraph (e)(2) would require a licensee or certificate holder to include specific information with their application as set forth in § 73.19(f). The licensee or certificate holder would also be required to include information on the date they applied for, and/or received NRC approval of their application for preemption authority under § 73.19, or under Commission order prior to the effective date of a final rule.

§ 73.19(e)(3) The NRC will document in writing to the licensee or certificate holder that the Commission has approved or disapproved the licensee's or certificate holder's application for enhanced-weapons authority. The NRC must approve, or have previously approved, a licensee's or certificate holder's application for preemption authority under paragraph (d) of this section, or via Commission order, to approve the application for enhanced weapons authority

Paragraph (e)(3) would indicate that the NRC would document in writing the approval or disapproval of an application for combined enhanced-weapons authority and preemption authority. The NRC's approval would also indicate the total numbers, types, and calibers of enhanced weapons that are approved for a specific licensee or certificate holder.

§ 73.19(e)(4) Licensees and certificate holders who have applied to the NRC for and received enhanced-weapons authority shall then apply to the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) for a federal firearms license (FFL) and also register under the National Firearms Act (NFA) in accordance with ATF regulations under 27 CFR parts 478 and 479 to obtain the enhanced weapons. Licensees and certificate holders shall include a copy of the NRC's written approval with their NFA registration application

Paragraph (e)(4) would indicate that after the licensee or certificate holder has received NRC approval of its application to use enhanced weapons, it must then apply to ATF to obtain a FFL and also register under the NFA to obtain these weapons. Because ATF has indicated it would rely upon the NRC's technical evaluation [on whether the specific weapons listed in the NRC's approval are appropriate for the licensee or certificate holder] in processing the licensee's or certificate holder's NFA registration application, licensees and certificate holders would include a copy of the NRC's approval with their NFA registration application.

This paragraph would require licensees to obtain a FFL in addition to registering under the NFA. Based upon conversations with ATF, the NRC understands that while ATF's regulations do not mandate that persons who obtain NFA weapons also have an FFL, NRC licensees and certificate holders desiring to obtain enhanced weapons would benefit from status an ATF FFL. Advantages would include reduced time to process requests to transfer NFA weapons to or from the licensee or certificate holder (e.g., initial receipt, repair, or disposition), simplification of the ATF's review of an NFA registration application, and elimination of transfer taxes for NFA-weapons transactions. The NRC also understands that status as an FFL would create obligations for such licensee's and certificate holders. Obligations would include payment of an annual special occupational tax, additional recordkeeping requirements, and a requirement to permit ATF inspectors access to the licensee's or certificate holder's facilities possessing enhanced weapons to inspect ATF-licensed weapons and corresponding records.

§ 73.19(f) Application for enhanced-weapons authority additional information. (1) Licensees and certificate holders applying to the Commission for enhanced-weapons authority under paragraph (e) of this section shall also submit to the NRC for prior review and written approval new, or revised, physical security plans, security personnel training and qualification plans, safeguards contingency plans, and safety assessments incorporating the use of the specific enhanced weapons the licensee or certificate holder intends to use. These plans and assessments must be specific to the facility, radioactive material, or other property being protected

Paragraph (f)(1) would describe the additional information a licensee or certificate holder would be required to submit along with their application for preemption and enhanced-weapons authority. This information would be submitted to the NRC for prior review and approval and would describe and address the specific weapons to be employed. In addition to addressing the enhanced weapons in the security, training and qualification, and safeguards contingency plans, a licensee or certificate holder would also provide a safety assessment on the use of the specific enhanced weapons to be employed. Licensees and certificate holders who apply for authority alone under paragraph (d) would not be subject to the requirements of paragraph (f).

§ 73.19(f)(2) In addition to other requirements set forth in this part, these plans and assessments must—

(i) For the physical security plan, identify the specific types or models, calibers, and numbers of enhanced weapons to be used;

(ii) For the training and qualification plan, address the training and qualification requirements to use these specific enhanced weapons; and

(iii) For the safeguards contingency plan, address how these enhanced and any standard weapons will be employed by the licensee's or certificate holder's security personnel in meeting the NRC-required protective strategy, including tactical approaches and maneuvers.

Paragraph (e)(2) would describe specific information the license or certificate holder would include in the plans and assessments accompanying the application for enhanced-weapons authority. The paragraph would also describe the scope of the safety assessments and would require evaluation of both onsite and offsite impacts from the use of the specific enhanced weapons to be employed. The safety assessment would be required to only address the enhanced weapons the license or certificate holder intends to employ.

§ 73.19(f)(2)(iv) For the safety assessment—

(A) Assess any potential safety impact on the facility, radioactive material, or other property from the use of these enhanced weapons;

(B) Assess any potential safety impact on public or private facilities, public or private property, or on members of the public in areas outside of the site boundary from the use of these enhanced weapons; and

(C) Assess any potential safety impact on public or private facilities, public or private property, or on members of the public from the use of these enhanced weapons at training facilities intended for proficiency demonstration and qualification purposes.

See considerations for § 73.19(f)(2).

§ 73.19(f)(3) The licensee's or certificate holder's training and qualification plan on possessing, storing, maintaining, qualifying on, and using enhanced weapons must include information from applicable firearms standards developed by nationally-recognized firearms organizations or standard setting bodies or standards developed by Federal agencies, such as: the U.S. Department of Homeland Security's Federal Law Enforcement Training Center, the U.S. Department of Energy's National Training Center, and the U.S. Department of Defense

(4) Licensees or certificate holders shall submit any new or revised plans and assessments for prior NRC review and written approval notwithstanding the provisions of §§ 50.54(p), 70.32(e), and 76.60 of this chapter which otherwise permit a license or certificate holder to make changes to such plans “that would not decrease their effectiveness” without prior NRC review

Paragraph (f)(3) would specify acceptable standards for the licensee or certificate holder to use in creating a training and qualification plan for enhanced weapons. This paragraph would not create any new requirements for training standards for standard weapons.

Paragraph (f)(4) would require the submission of revised plans for prior NRC review and approval, irrespective of whether the licensee or certificate holder concludes that the use of these enhanced weapons would not cause “a decrease in security effectiveness” under the applicable NRC regulation.

§ 73.19(g) Completion of training and qualification prior to use of enhanced weapons.

Licensees and certificate holders who have applied for and received enhanced-weapons authority under paragraph (e) of this section shall ensure security personnel complete required firearms training and qualification in accordance with the licensee's or certificate holder's NRC-approved training and qualification plan. Such training must be completed prior to security personnel's use of enhanced weapons to protect NRC-designated facilities, radioactive material, or other property and must be documented in accordance with the requirements of the licensee's or certificate holder's training and qualification plan.

Paragraph (g) would require licensees and certificate holders to ensure security personnel are trained and qualified on the use and employment of enhanced weapons before the licensee or certificate holder deploys these enhanced weapons to defend the facility, radioactive material, or other property.

Documentation of completion of this training would be consistent with the licensee's or certificate holder's approved training and qualification plan.

§ 73.19(h) Use of enhanced weapons. Requirements regarding the use of enhanced weapons by security personnel in the performance of their official duties are contained in §§ 73.46 and 73.55 and in appendices B and C of this part, as applicable

Paragraph (h) would indicate that § 73.19 does not supercede requirements on the use of weapons under the power reactor and Category I fuel cycle facility security regulations found in Part 73.

§ 73.19(i) [Reserved]

Paragraph (i) would not be used to avoid confusion with the use of sub-sub paragraph (i).

§ 73.19(j) Notification of adverse ATF findings or notices. NRC licensees and certificate holders with an ATF federal firearms license (FFL) and/or enhanced weapons shall notify the NRC, in accordance with § 73.4, of instances involving any adverse ATF findings or ATF notices related to their FFL or such weapons

Paragraph (j) would require NRC licensees or certificate holders to notify NRC, should the licensee or certificate holder receive any adverse findings based upon an ATF inspection, audit, or review of the enhanced weapons possessed by the licensee or certificate holder under an ATF FFL. This would allow the NRC to appropriately respond to any public or media inquiries associated with such findings in a timely manner.

§ 73.2 Definitions

Three new definitions would be added to this section as conforming changes supporting the new §§ 73.18 and 73.19 that would include: covered weapon, enhanced weapon, and standard weapon. The NRC would use these three terms to envelope the weapons, ammunition, and devices listed under section 161A of the AEA.

Other new definitions that would be added as conforming changes to this section in support of other regulations (e.g., safety/security interface and target set) are discussed in other tables in this proposed rule.

Covered weapon means any handgun, rifle, shotgun, short-barreled shotgun, short-barreled rifle, semi-automatic assault weapon, machinegun, ammunition for any such gun or weapon, or large capacity ammunition feeding device as specified under section 161A of the Atomic Energy Act of 1954, as amended. As used here, the terms “handgun, rifle, shotgun, short-barreled shotgun, short-barreled rifle, semi-automatic assault weapon, machinegun, ammunition, or large capacity ammunition feeding device” have the same meaning as set forth for those terms under 18 U.S.C. 921(a). Covered weapons include both enhanced weapons and standard weapons. However, enhanced weapons do not include standard weapons

A definition for covered weapon would be used as an overall term to encompass the firearms (weapons), ammunition, and devices listed in section 161A. The meanings of the specific terms for the firearms, ammunition, or devices encompassed within this definition would have the same meaning for those terms as is those found under Title 18 of the United States Code, Section 921(a) [18 U.S.C. 921(a)].

Enhanced weapon means any short-barreled shotgun, short-barreled rifle, or machinegun. Enhanced weapons do not include destructive devices, including explosives or weapons greater than 50 caliber (i.e., weapons with a bore greater than 1.27 cm [0.5 in] diameter)

Standard weapon means any handgun, rifle, shotgun, semi-automatic assault weapon, or a large capacity ammunition feeding device

Definitions for enhanced weapon and standard weapon would be added to support the differing scope of these new sections. The relationship between covered weapon, enhanced weapon, and standard weapon would be explained.

Also, the definition for enhanced weapons would not include destructive devices as defined under ATF's regulations, since the NRC's authority under section 161A of the AEA does not permit licensees or certificate holders to possess destructive devices.

Table 2.—Part 73 Section 73.55

[Requirements for physical protection of licensed activities in nuclear power reactors against radiological sabotage]

Current language

Proposed language

Considerations

Requirements for physical protection of licensed activities in nuclear power reactors against radiological sabotage

Requirements for physical protection of licensed activities in nuclear power reactors against radiological sabotage

This title would be retained.

(a) Introduction

This header would be added for formatting purposes.

§ 73.55 By December 2, 1986, each licensee, as appropriate, shall submit proposed amendments to its security plan which define how the amended requirements of Paragraphs (a), (d)(7), (d)(9), and (e)(1) will be met

(a)(1) By [date—180 days—after the effective date of the final rule published in the

Federal Register

], each nuclear power reactor licensee, licensed under 10 CFR part 50, shall incorporate the revised requirements of this section through amendments to its Commission-approved Physical Security Plan, Training and Qualification Plan, and Safeguards Contingency Plan, referred to collectively as “approved security plans,” and shall submit the amended security plans to the Commission for review and approval

This requirement would be added to discuss the types of Commission licensees to whom the proposed requirements of this section would apply and the schedule for submitting the amended security plans. The Commission intends to delete the current language, because it applies only to a past rule change that is completed. The proposed requirements of this section would be applicable to decommissioned/ing reactors unless otherwise exempted.

§ 73.55 Each submittal must include a proposed implementation schedule for Commission approval

(a)(2) The amended security plans must be submitted as specified in § 50.4 of this chapter and must describe how the revised requirements of this section will be implemented by the licensee, to include a proposed implementation schedule

This requirement would be added to provide a reference to the current § 50.4(b)(4) which describes procedural details relative to the proposed security plan submission requirement.

§ 73.55 The amended safeguards requirements of these paragraphs must be implemented by the licensee within 180 days after Commission approval of the proposed security plan in accordance with the approved schedule

(a)(3) The licensee shall implement the existing approved security plans and associated Commission orders until Commission approval of the amended security plans, unless otherwise authorized by the Commission

This requirement would be added to clarify that the licensee must continue to implement the current Commission-approved security plans until the Commission approves the amended plans. The phrase “unless otherwise authorized by the Commission” would provide flexibility to account for unanticipated situations that may affect the licensee's ability to comply with this proposed requirement.

§ 73.55(b)(1)(i) The licensee is responsible to the Commission for maintaining safeguards in accordance with Commission regulations and the licensee's security plan

(a)(4) The licensee is responsible for maintaining the onsite physical protection program in accordance with Commission regulations and related Commission-directed orders through the implementation of the approved security plans and site implementing procedures

This requirement would retain the current requirement that the licensee is responsible for meeting Commission regulations and the approved security plans. The phrase “through the implementation of the approved security plans and site implementing procedures” would be added to describe the relationship between Commission regulations, the approved security plans, and implementing procedures. The word “safeguards” would be replaced with the phrase “physical protection program” to more accurately focus this requirement to the security program rather than the broad “safeguards” which includes safety.

The Commission views the approved security plans as the mechanism through which the licensee meets Commission requirements through implementation, therefore, the licensee is responsible to the Commission for this performance.

(a)(5) Applicants for an operating license under the provisions of part 50 of this chapter, or holders of a combined license under the provisions of part 52 of this chapter, shall satisfy the requirements of this section before the receipt of special nuclear material in the form of fuel assemblies

This requirement would be added to describe the proposed requirements for applicants and to specify that these proposed requirements must be met before an applicant's receipt of special nuclear material in the form of fuel assemblies.

(a)(6) For licenses issued after [effective date of this rule], licensees shall design, construct, and equip the central alarm station and secondary alarm station to equivalent standards

This requirement would be added to describe the Commission expectations for new reactors. Based on changes to the threat environment the Commission has determined that the functions required to be performed by the central alarm station are a critical element of the licensee capability to satisfy the performance objective and requirements of the proposed paragraph (b) of this section.

Therefore, to ensure that these critical capabilities are maintained, the Commission has determined that this proposed requirement would be a prudent and necessary measure to ensure the licensee's ability to summon assistance or otherwise respond to an alarm as is currently required by § 73.55(e)(1) and therefore satisfy the performance objective and requirements of the proposed paragraph (b) of this section.

(a)(6)(i) Licensees shall apply the requirements for the central alarm station listed in paragraphs (e)(6)(v), (e)(7)(iii), and (i)(8)(ii) of this section to the secondary alarm station as well as the central alarm station

This requirement would be added for consistency with and clarification of the proposed requirement of paragraph (a)(6) of this section. The Commission has determined that these construction standards that were previously applied to only the central alarm station should also be built into the secondary alarm station for new reactor licensees.

(a)(6)(ii) Licensees shall comply with the requirements of paragraph (i)(4) of this section such that both alarm stations are provided with equivalent capabilities for detection, assessment, monitoring, observation, surveillance, and communications

This requirement would be added for consistency with and clarification of the proposed requirement of paragraph (i)(4) of this section and to clarify that for new reactors, both the central and secondary alarm stations must be provided “equivalent capabilities” and not simply equivalent “functional” capabilities as is stated in the proposed paragraph (i)(4) of this section. The Commission has determined that these capabilities must be equivalent for new reactors to ensure that the secondary alarm station is redundant to the central alarm station.

§ 73.55(a) General performance objective and requirements

(b) General performance objective and requirements

This header would be retained. The proposed requirements of this section are intended to represent the general outline for a physical protection program that would provide an acceptable level of protection if effectively implemented. The proposed actions, standards, criteria, and requirements of this section are intended to be bounded by the description of the design basis threat identified by the Commission in § 73.1.

§ 73.55(a) The licensee shall establish and maintain an onsite physical protection system and security organization which will have as its objective to provide high assurance that activities involving special nuclear material are not inimical to the common defense and security and do not constitute an unreasonable risk to the public health and safety

(b)(1) The licensee shall establish and maintain a physical protection program, to include a security organization which will have as its objective to provide high assurance that activities involving special nuclear material are not inimical to the common defense and security and do not constitute an unreasonable risk to the public health and safety

This requirement would retain the current performance objective of § 73.55(a) with two minor changes. First, the phrase “an onsite physical protection system” would be replaced with the phrase “a physical protection program” to more clearly state the Commission's view that the physical protection system elements described in this proposed rule combine to make the licensee physical protection program. Second, the word “and” would be replaced with the phrase “to include a” to clarify the Commission's view that the security organization is not considered to be independent of the licensee physical protection program but rather, is a component of that program.

§ 73.55(a) The physical protection system shall be designed to protect against the design basis threat of radiological sabotage as stated in § 73.1(a)

§ 73.55(h)(4)(iii)(A) Requiring responding guards or other armed response personnel to interpose themselves * * *.

(b)(2) The physical protection program must be designed to detect, assess, intercept, challenge, delay, and neutralize threats up to and including the design basis threat of radiological sabotage as stated in § 73.1(a), at all times

This requirement would contain a substantial revision to provide a more detailed and performance based requirement for the design of the licensee physical protection program. Most significantly, the word “interpose” would be replaced with the words “detect, assess, intercept, challenge, delay, and neutralize”. The current requirement of § 73.55(h)(4)(iii)(A) requires the licensee to “interpose” for the purpose of preventing radiological sabotage, however, the definition of “radiological sabotage” stated in § 73.2 does not contain a performance based element by which the Commission can measure this capability and therefore, this proposed requirement would provide the six performance based elements or capabilities “detect, assess, intercept, challenge, delay, and neutralize.” The first element, “detect”, would be provided through the use of detection equipment, patrols, access controls, and other program elements required by this proposed rule and would provide notification to the licensee that a potential threat is present and where the threat is located.

The second element, “assess”, would provide a mechanism through which the licensee would identify the nature of the threat detected. This would be accomplished through the use of video equipment, patrols, and other program elements that would be required by this proposed rule and would provide the licensee with information about the threat upon which the licensee would determine how to respond. The third, fourth, and fifth elements would comprise the component actions of response and would be provided by personnel trained and equipped in accordance with a response strategy. The third element “intercept” would be the act of placing a person at an intersecting defensive position directly in the path of advancement taken by the threat, and between the threat and the protected target or target set element. The fourth element “challenge” would be to verbally or physically confront the threat to impede, halt, or otherwise interact with the threat with the intent of preventing further advancement of the threat towards the protected target or target set element.

The fifth element “delay” would be to take necessary actions to counter any attempt by the threat to advance towards the protected target or target set element. The sixth element “neutralize” would be to place the threat in a condition from which the threat no longer has the potential to, or capability of, doing harm to the protected item. The Commission does not intend to suggest that the action, “neutralize”, would require the application of “deadly force” in all instances. The phrase “threat of radiological sabotage” would be replaced with the phrase “threats up to and including the design basis threat of radiological sabotage” to clarify the Commission's view that the licensee must provide protection against any element of the design basis threat, to include those that do not rise to the full capability of the design basis threat.

§ 73.55(a) To achieve this general performance objective, the onsite physical protection system and security organization must include, but not necessarily be limited to, the capabilities to meet the specific requirements contained in paragraphs (b) through (h) of this section

§ 73.55(e)(1) * * * so that a single act cannot remove the capability of calling for assistance or otherwise responding to an alarm.

(b)(3) The licensee physical protection program must be designed and implemented to satisfy the requirements of this section and ensure that no single act, as bounded by the design basis threat, can disable the personnel, equipment, or systems necessary to prevent significant core damage and spent fuel sabotage

This requirement would retain and revise two current requirements to provide a performance based requirement for the design of the physical protection program. The first significant revision would expand the current requirement for alarm stations to be protected against a single act, and would require that the licensee physical protection program be designed to ensure that a single act can not disable the personnel, equipment, or systems necessary to prevent significant core damage and spent fuel sabotage which would result in the loss of the capability to prevent radiological sabotage. The Commission's view is that because of changes to the threat environment, it is necessary to emphasize the “remove the capability” requirement of the current § 73.55(e)(1) such that the single act protection requirement would apply to personnel, equipment, and systems required to perform specific functions that if disabled would remove the licensee capability to prevent radiological sabotage. The second significant revision would provide a measurable and performance based requirement against which the Commission would measure the effectiveness of the licensee's physical protection program to prevent radiological sabotage.

The Commission's view is that the goal of the licensee's physical protection program must include an acceptable safety margin to assure that the performance objective of public health and safety is met. This safety margin would be established by designing and implementing a physical protection program that protects against radiological sabotage by preventing significant core damage and spent fuel sabotage which describes the undesirable consequences that could result from the destruction of a target set or all elements of a target set and would be a precursor to radiological sabotage. The Commission's view is that significant damage to the core or sabotage to spent fuel would result in a condition in which the performance objective of “High Assurance” could no longer be provided and therefore, prevention of significant core damage and spent fuel sabotage are a measurable performance criteria against which the Commission would evaluate the effectiveness of the licensee physical protection program.

The phrase “as bounded by the design basis threat” would be used to clarify the Commission's view that the licensee must ensure that the physical protection program is designed to protect against the design basis threat and all other threats that do not rise to the level of the design basis threat. The phrase “the capabilities to meet the specific requirements contained in paragraphs (b) through (h) of this section” would be replaced by the phase “implemented to satisfy the requirements of this section” to account for the reformatting of this proposed rule and to describe the Commission view that the licensee is responsible to implement Commission requirements through the approved security plans and procedures.

(b)(4) The physical protection program must include diverse and redundant equipment, systems, technology, programs, supporting processes, and implementing procedures

This requirement would be added to apply defense-in-depth concepts as part of the physical protection program to ensure the capability to meet the performance objective of the proposed paragraph (b)(1) of this section is maintained in the changing threat environment. The terms “diverse and redundant” are intended to describe defense-in-depth in a performance based manner and would be a critical element for meeting the proposed requirement for protection against a single act described in the proposed paragraph (b)(3) of this section.

§ 73.55(b)(4)(i) Upon the request of an authorized representative of the Commission, the licensee shall demonstrate the ability of the physical security personnel to carry out their assigned duties and responsibilities

(b)(5) Upon the request of an authorized representative of the Commission, the licensee shall demonstrate the ability to meet Commission requirements through the implementation of the physical protection program, including the ability of armed and unarmed personnel to perform assigned duties and responsibilities required by the approved security plans and licensee procedures

This requirement would retain the current requirement for demonstration and would contain minor revisions to apply this requirement to the licensee's ability to implement the physical protection program and not be limited to only the ability of security personnel to carry out their duties. This proposed requirement would clarify the Commission's view that the licensee must also demonstrate the effectiveness of plans, procedures, and equipment to accomplish their intended function within the physical protection program.

(b)(6) The licensee shall establish and maintain a written performance evaluation program in accordance with appendix B and appendix C to this part, to demonstrate and assess the effectiveness of armed responders and armed security officers to perform their assigned duties and responsibilities to protect target sets described in paragraph (f) of this section and appendix C to this part, through implementation of the licensee protective strategy

This requirement would be added to specify that this performance evaluation program would be the mechanism by which the licensee would demonstrate the capabilities described by the performanc

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