[Federal Register Volume 66, Number 34 (Tuesday, February 20, 2001)]
[Proposed Rules]
[Pages 10839-10841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4105]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 73, 76, and 95

[Docket No. PRM-76-1]


United Plant Guard Workers of America; Denial of Petition for 
Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking submitted by the United Plant Guard Workers of America 
(PRM-76-1). The petitioner requested that the NRC amend its regulations 
concerning security at the gaseous diffusion plants to address sites 
that have both special nuclear material security concerns and 
protection of classified matter concerns; to require that these 
facilities be able to detect, respond to, and mitigate threats of a 
sabotage event; and to require that the security force be armed and 
empowered to make arrests in limited situations. The petitioner 
believes that these amendments are necessary to address the protection 
of classified information, equipment and materials, and special nuclear 
material at the gaseous diffusion plants.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, and NRC's letter to the petitioner may be examined at the NRC 
Public Document Room, 11555 Rockville Pike, Rockville, MD. These 
documents also may be viewed and downloaded electronically via the 
rulemaking website.
    Documents created or received at the NRC after November 1, 1999 are 
also available electronically at the NRC's Public Electronic Reading 
Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.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. For more information, contact the NRC 
Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-
4737, or by e-mail, [email protected].

FOR FURTHER INFORMATION CONTACT: Merri Horn, Office of Nuclear Material 
Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001, telephone (301) 415-8126, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

The Petition

    On May 10, 2000 (65 FR 30018), the NRC published a notice of 
receipt of a petition for rulemaking filed by the United Plant Guard 
Workers of America. The petitioner requested that the NRC amend its 
regulations concerning security at the gaseous diffusion plants to 
address sites that have both special nuclear material security concerns 
and protection of classified matter concerns; to require that these 
facilities be able to detect, respond to, and mitigate threats of a 
sabotage event; and to require that the security force be armed and 
empowered to make arrests in limited situations. The petitioner 
believes that these amendments are necessary to address the protection 
of classified information, equipment and materials, and special nuclear 
material at the gaseous diffusion plants.
    First, the petitioner asserted that the regulations do not 
adequately address sites that have both nuclear material security 
concerns and classified matter concerns. The petitioner believes that 
the applicable regulations were not appropriately merged in the 
regulations governing gaseous diffusion plants to address a site that 
covers the protection of classified information, equipment and 
materials, and special nuclear material.
    As an example, the petitioner stated that the Controlled Area Fence 
Line does provide a minimum level of protection against the 
unauthorized removal of special nuclear material contained in 10- and 
20-ton cylinders. However, the petitioner questioned whether the fence 
line adequately protects against the unauthorized removal of restricted 
information, equipment, and other materials or the unauthorized access 
to these types of materials.
    The petitioner asserted that other facilities that possess Category 
III quantities of special nuclear material regulated by the NRC do not 
share the

[[Page 10840]]

level of concern for classified matter, equipment, and technology that 
exists at the gaseous diffusion plants. The petitioner suggested that 
the regulations concerning security programs at the gaseous diffusion 
plants, such as escort requirements and physical security measures, 
should be amended to be made more stringent to protect this technology. 
The petitioner did not offer any specifics as to how the regulations 
should be amended.
    Second, according to the petitioner, the NRC typically relies on 
local law enforcement agencies to respond to incidents of workplace 
violence or sabotage at material licensee facilities. The petitioner 
stated that the scope and complexity of a gaseous diffusion plant makes 
it far different from other types of NRC-licensed materials facilities. 
Furthermore, the petitioner believes that these differences result in 
unique problems in relying on local law enforcement agencies to protect 
such a facility from violent incidents. The petitioner indicated that 
local law enforcement agencies in the vicinity of the Paducah plant 
have stated, for the record, that they should not be viewed as a 
replacement for on-site security because of their lack of knowledge of 
the plant site, the types of hazards contained in the plant, and their 
limited resources. The petitioner presented two letters, attached to 
the petition, from law enforcement agencies in the vicinity of the 
Paducah plant that support this contention.
    Because of the unique nature of gaseous diffusion plants and the 
importance of their operation, the petitioner believes that a violent 
incident or an act of sabotage would affect national security. The 
petitioner also asserted that, because of the many radiological and 
toxicological hazards associated with these plants, an act of sabotage 
could adversely affect the safety of plant workers and the public.
    The petitioner believes that these dangers were not addressed as 
part of the certification process. According to the petitioner, current 
NRC standards do not require a security force that is capable of 
preventing a sabotage event. The petitioner requested that the 
regulations be amended to require that security forces at the gaseous 
diffusion plants be able to detect, respond to, and mitigate violent 
incidents or acts of sabotage.
    Last, the petitioner noted that current regulations do not require 
that the security force be armed or empowered to enforce the Atomic 
Energy Act. The petitioner requested that security officers at the 
gaseous diffusion plants be armed and empowered to make arrests in 
limited situations, such as for violations of the Atomic Energy Act.

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit comments. The comment period closed on 
July 24, 2000. NRC received one comment letter from the United States 
Enrichment Corporation (USEC), the operator of the gaseous diffusion 
plants. The commenter was opposed to the petition. The commenter 
believes that the petitioner does not provide a solid and specific 
basis for revising the regulations to increase security at the gaseous 
diffusion plants. The commenter points out that the petitioner has not 
provided specific recommendations regarding what revisions should be 
made to current security regulatory requirements to address the 
concerns outlined in the petition. The commenter states that the 
security program at the gaseous diffusion plants exceeds NRC 
requirements for the protection of classified matter and special 
nuclear material of low strategic significance. The commenter asserts 
that research by the NRC, United States Department of Energy (DOE), and 
United States Federal Bureau of Investigations (FBI) does not indicate 
a higher potential threat level for the gaseous diffusion plants than 
for other fuel cycle facilities with similar nuclear materials. The 
commenter states that the requested changes would also affect other 
similar facilities and that implementation of the protective strategies 
described by the petitioner would result in an increase in cost for all 
subject facilities and that the cost is not justified based on the lack 
of increased associated threat. The commenter believes that the level 
of security is adequate to protect classified matter and special 
nuclear material at the gaseous diffusion plants.

Reasons for Denial

    The NRC is denying the petition because we have determined that 
current NRC regulations and certificate conditions governing the 
gaseous diffusion plants provide adequate protection for both 
classified matter and special nuclear material at these plants. The 
gaseous diffusion plants operate under certificates of compliance 
issued under the provisions of 10 CFR part 76. Furthermore, they are 
subject to the physical protection provisions of 10 CFR part 73 and the 
security provisions of 10 CFR part 95. The gaseous diffusion plants 
process Category III levels of special nuclear material as described in 
10 CFR 73.2. Category III levels require a minimum level of security, 
as specified in 10 CFR 73.67, to minimize the possibility for the 
unauthorized removal of special nuclear material. The specified level 
of security is intended to be consistent with the potential 
consequences of such an action. The regulations in Part 95 establish 
security requirements for the protection of classified matter up to and 
including SECRET-Restricted Data and are consistent with national 
policy. The gaseous diffusion plants are also required to follow the 
security plans approved by the NRC.
    The petitioner suggested three separate areas for changing the 
regulations: (1) Require more stringent regulations concerning security 
programs at the gaseous diffusion plants, such as escort requirements 
and physical security measures; (2) require that these facilities be 
able to detect, respond to, and mitigate threats of a sabotage event; 
and (3) require that the security force be armed and empowered to make 
arrests in limited situations.

1. More Stringent Regulations

    NRC believes that the petitioner is incorrect in asserting that the 
regulations do not adequately address sites with requirements for both 
physical protection of special nuclear material and protection of 
classified matter. The NRC staff was not able to identify any conflict 
with the provisions of Parts 73 and 95, nor was the staff able to 
identify any gaps in coverage. The combination of special nuclear 
material of low strategic significance (SNM-LSS) and classified 
material does not create any new threat to the protection of classified 
material. Part 95 requires that access to classified matter be limited 
to authorized persons who have an appropriate security clearance and a 
need-to-know for the classified matter. Individuals without the 
appropriate level of clearance and/or need-to-know must be escorted at 
all times by an authorized individual. Part 95 requires that all 
cleared employees be provided with security training. Part 95 also 
requires that classified matter be stored in locked vaults or safes and 
requires a watchman to check the safes on an established frequency. The 
escort of uncleared individuals is already required by Part 95. The 
provisions of Part 95 provide adequate protection of classified matter 
and are consistent with national policy (i.e., National Industrial 
Security Program Operating Manual.)
    As an example, the petitioner suggested that the security fence 
does not provide adequate protection of restricted information. (The 
NRC assumes that the petitioner is actually

[[Page 10841]]

referring to restricted data or national security information as there 
is no category called restricted information.) The petitioner does 
concede that unauthorized removal of SNM-LSS is not an issue. The 
security fence is not required by Part 95, although it does provide 
some protection since it prevents unauthorized individuals from gaining 
access to the facility. Only employees and authorized individuals are 
allowed access to the facility. All employees and visitors are required 
to enter and exit the facility through portals manned by security 
personnel. Security personnel do have the right to search items 
entering and leaving the facility. These provisions, as well as others, 
ensure that classified matter is used, stored, processed, reproduced, 
transmitted, transported, and destroyed only under conditions that will 
provide adequate protection and prevent access by unauthorized persons. 
The petitioner did not provide any information demonstrating that more 
stringent escort requirements or other security measures were necessary 
for the gaseous diffusion plants. The increased burden that would be 
imposed by any new regulations would not appear to be warranted. The 
provisions of Parts 73 and 95, coupled with the approved security plans 
for the protection of classified matter and for physical protection, 
will continue to provide the basis for adequate protection of 
classified matter and SNM-LSS possessed by the gaseous diffusion 
plants.

2. Detect, Respond to, and Prevent Sabotage

    In Part 73, the requirements do reflect the need for addressing 
radiological sabotage for Category I facilities. A Category I facility 
is a facility that possesses a formula quantity of special nuclear 
material of strategic significance (e.g., 5 kilograms of uranium 
enriched to 20 percent or more in the uranium-235 isotope) and a 
Category III facility is one that possesses special nuclear material of 
low strategic significance (uranium enriched to less than 10 percent in 
the uranium-235 isotope, with limited quantities at higher 
enrichments). The gaseous diffusion plants are classified as Category 
III facilities. When the regulations in Part 73 were promulgated, the 
NRC did not consider that a potential threat for radiological sabotage 
existed for Category III facilities. Therefore, Part 73 does not 
require that these facilities protect against radiological sabotage 
other than ensuring the security of radioactive material under 10 CFR 
part 20. The NRC is not aware of any changes in the threat environment 
that would warrant a change in this conclusion and, therefore, would 
warrant a change in the physical protection requirements for Category 
III facilities. Additionally, during the promulgation of Part 76, 
sabotage was not considered to be a credible threat and, therefore, was 
not addressed in the regulations. The staff evaluated whether the 
classification of the gaseous diffusion plants as Category III 
facilities was appropriate since the requested change to the rules 
would result in imposing the equivalent of Category I physical 
protection requirements on the gaseous diffusion plants. Currently, the 
gaseous diffusion plants do not have a national defense role. The 
production from these plants supports the commercial nuclear industry. 
The material is unattractive from a proliferation standpoint because of 
its low enrichment and its storage configuration (e.g., 14-ton 
cylinders) reduces the likelihood of theft or diversion compared to 
Category I material. The staff has not identified any change in the 
threat environment that would warrant a change to the requirements for 
the gaseous diffusion plants. The staff concluded that the 
classification of the gaseous diffusion plants as Category III 
facilities was appropriate.
    The petitioner also expressed concern that local law enforcement is 
viewed as a replacement for on-site security response capability. On-
site security would be the first to respond; local law enforcement 
would be contacted to provide backup if deemed necessary. Both gaseous 
diffusion plants have agreements in place with local law enforcement 
agencies. The local sheriff, State police, and FBI have also 
participated in emergency exercises at the plants. In addition, if a 
specific threat were to be uncovered, the facility would be provided 
with the information and could increase security as necessary. State 
and Federal law enforcement officials would be available to respond in 
case of a serious threat.
    The petitioner has not provided any new information for NRC 
consideration that could form an adequate basis to require that the 
plants be able to detect, respond to, and mitigate violent incidents or 
acts of sabotage. There is no known change in the threat environment 
that would warrant a change to the regulations or a change in 
classification for the gaseous diffusion plants from Category III to 
Category I. The increased burden that would be imposed on the 
certificate holder, the NRC staff, and other stakeholders is not 
warranted based on current information.

3. Armed Security Force

    NRC physical security requirements vary according to the risk posed 
by the radioactive material possessed and do not require armed guards 
for the operations under NRC regulation at the gaseous diffusion 
plants. There is no known threat that would warrant requiring armed 
guards at Category III facilities, including the gaseous diffusion 
plants. The operations at the gaseous diffusion plants under NRC 
regulation involve SNM-LSS, and NRC regulations do not require the 
presence of armed guards for the adequate protection of SNM-LSS. 
However, NRC regulations do not prohibit carrying of firearms. In fact, 
the guards at the gaseous diffusion plants do carry firearms. USEC has 
committed to the presence of armed guards in its NRC-approved physical 
protection plans. The NRC currently does not have the authority to 
authorize certificate holders and their employers and contractors to 
have arrest authority for protection of common defense and security. 
However, DOE does have the authority and has now completed issuance of 
weapons authorization cards for the guard forces at the gaseous 
diffusion plants. The remedy requested by the petition (i.e., 
rulemaking) would appear to be unnecessary as the desired outcome 
(armed guards and arrest authority) has been achieved by means other 
than rulemaking.
    In conclusion, no new information has been provided by the 
petitioner that calls into question the classified information and 
physical protection requirements. Existing NRC regulations provide the 
basis for reasonable assurance that the common defense and security is 
adequately protected. Additional rulemaking would impose unnecessary 
regulatory burden and does not appear to be warranted for the adequate 
protection of the common defense and security.
    For the reasons cited in this document, the NRC denies this 
petition.

    Dated at Rockville, Maryland, this 31st day of January, 2001.

    For the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 01-4105 Filed 2-16-01; 8:45 am]
BILLING CODE 7590-01-P