[Federal Register Volume 70, Number 214 (Monday, November 7, 2005)]
[Proposed Rules]
[Pages 67380-67388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22200]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
RIN 3150-AH60
Design Basis Threat
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations that govern the requirements pertaining to design basis
threat (DBT). The proposed rule would amend the Commission's
regulations to, among other things, make generically applicable the
security requirements previously imposed by the Commission's April 29,
2003 DBT orders, which applied to existing licensees, and redefine the
level of security requirements necessary to ensure that the public
health and safety and common defense and security are adequately
protected. The proposed rule would revise the DBT requirements for
radiological sabotage (applied to power reactors and Category I fuel
cycle facilities), and theft or diversion of NRC-licensed Strategic
Special Nuclear Material (SSNM) (applied to Category I fuel cycle
facilities). The NRC has developed draft Regulatory Guides (RGs) that
provide guidance to licensees concerning the DBT for radiological
sabotage and theft and diversion. These draft RGs have limited
distribution because they contain either safeguards or classified
information. The specific details related to the threat, which contain
both safeguards information (SGI) and classified information, are
contained in adversary characteristics documents (ACDs) that are not
publicly available. These documents include specific details of the
attributes of the threat consistent with the requirements imposed in
the April 29, 2003, DBT orders. Additionally, a Petition for Rulemaking
(PRM-73-12), filed by the Committee to Bridge the Gap, was considered
as part of this proposed rulemaking; the NRC's disposition of this
petition is contained in this document.
DATES: Submit comments by January 23, 2006. Comments received after
this date will be considered if it is practical to do so, but the
Commission is able to ensure consideration only for comments received
on or before this date.
ADDRESSES: You may submit comments by any one of the following methods.
Please include the following number RIN 3150-AH60 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: [email protected]. 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
[email protected]. Comments can also be submitted via the Federal eRulemaking
Portal http://www.regulations.gov.
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 am and 4:15 pm 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, Maryland. 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
[[Page 67381]]
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
Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-
4737 or by e-mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Mr. Timothy Reed, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001; telephone (301) 415-1462; e-mail: [email protected] or Mr.
Richard Rasmussen, Office of Nuclear Security and Incident Response,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001;
telephone (301) 415-8380; e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background.
II. Rulemaking Initiation.
III. Proposed Regulations.
IV. Section-by-Section Analysis.
V. Petition for Rulemaking (PRM-73-12).
VI. Guidance.
VII. Criminal Penalties.
VIII. Compatibility of Agreement State Regulations.
IX. Availability of Documents.
X. Plain Language.
XI. Voluntary Consensus Standards.
XII. Finding of No Significant Environmental Impact: Environmental
Assessment: Availability.
XIII. Paperwork Reduction Act Statement.
XIV. Regulatory Analysis.
XV. Regulatory Flexibility Act Certification.
XVI. Backfit Analysis.
I. Background
The DBT requirements in 10 CFR 73.1(a) describe general adversary
characteristics that designated licensees must defend against with high
assurance. These NRC requirements include protection against
radiological sabotage (generally applied to power reactors and Category
I fuel cycle facilities) and theft or diversion of NRC-licensed SSNM
(generally applied to Category I fuel cycle facilities). The DBTs are
used by these licensees to form the basis for site-specific defensive
strategies implemented through security plans, safeguards contingency
plans, and guard training and qualification plans.
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 for the changing threat environment. In so
doing, the NRC recognized that some elements of the DBTs required
enhancement due to the escalation of the domestic threat level. After
soliciting and receiving comments from Federal, State, local agencies,
and industry stakeholders, the NRC imposed by order supplemental DBT
requirements that contained additional detailed adversary
characteristics. The Commission deliberated on the responsibilities of
the local, State, and Federal governments to protect the nation, and
the responsibility of the licensees to protect individual nuclear
facilities, before reaching consensus on a reasonable approach to
security in the April 29, 2003 DBT orders. After gaining experience
under these orders over the past two years, the Commission believes
that the attributes of the orders should be generically imposed on
certain classes of licensees.
The Commission's decision was based on the analysis of intelligence
information regarding the trends and capabilities of the potential
adversaries and discussions with Federal, law enforcement, and
intelligence community agencies. These enhanced adversary
characteristics are reflective of the new threat environment. In
general terms, DBTs are comprised of attributes selected from the
overall threat environment. The ACDs set forth the specific details of
the attributes of the DBTs. The DBT technical basis document contains a
basis for the specific adversary characteristics. These supplemental
documents contain safeguards and classified information that is
distributed only to persons with authorized access and on a need-to-
know basis. The NRC's DBT takes into consideration actual demonstrated
adversary characteristics as well as pertinent intelligence information
applicable to domestic threats and a determination as to those
characteristics against which a private security force could reasonably
be expected to provide protection.
The April 29, 2003 DBT orders required nuclear power reactors and
Category I fuel cycle licensees to revise their physical security
plans, security personnel training and qualification plans, and
safeguards contingency plans to defend against the supplemental DBT
requirements. The orders required licensees to make security
enhancements such as increased patrols; augmented security forces and
capabilities; additional security posts; additional physical barriers;
vehicle checks at greater standoff distances; better 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 initial and follow-on screening of
temporary and permanent workers. The NRC has reviewed and approved the
revised security plans that were developed and submitted by power
reactor and Category I fuel facility licensees in response to the April
29, 2003 orders.
II. Rulemaking Initiation
On July 19, 2004, the staff issued a memorandum entitled ``Status
of Security-Related Rulemaking'' to inform the Commission of plans to
close two longstanding 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 preempted 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), to
forego the development of a rulemaking plan and provide a schedule for
the completion of 10 CFR 73.1, 73.55, and Part 73 Appendix B
rulemakings. The requested schedule was provided to the Commission by
memorandum dated November 16, 2004.
III. Proposed Regulations
The principal objectives of the proposed rule are, among other
things, to make generically applicable the security requirements
previously imposed by the Commission's April 29, 2003 DBT orders, and
to define in NRC regulations the level of security necessary to ensure
adequate protection of the public health and safety and common defense
and security.
The Commission continues to consider many factors in developing the
proposed DBT and other security requirements. As directed by Congress
under section 651(a) of the recently enacted Energy Policy Act of 2005,
the NRC is giving consideration to the following 12 factors as part of
this rulemaking to revise the design basis threats:
1. The events of September 11, 2001;
2. An assessment of physical, cyber, biochemical, and other
terrorist threats;
3. The potential for attack on facilities by multiple coordinated
teams of a large number of individuals;
4. The potential for assistance in an attack from several persons
employed at the facility;
5. The potential for suicide attacks;
6. The potential for water-based and air-based threats;
[[Page 67382]]
7. The potential use of explosive devices of considerable size and
other modern weaponry;
8. The potential for attacks by persons with a sophisticated
knowledge of facility operations;
9. The potential for fires, especially fires of long duration;
10. The potential for attacks on spent fuel shipments by multiple
coordinated teams of a large number of individuals; \1\
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\1\ Transportation of spent nuclear fuel is subject to separate
regulatory requirements and public comments will be considered.
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11. The adequacy of planning to protect the public health and
safety at and around nuclear facilities, as appropriate, in the event
of a terrorist attack against a nuclear facility; and
12. The potential for theft and diversion of nuclear material from
such facilities.
A number of these factors are already reflected in the text of the
proposed rule. For example, the proposed rule would require protection
against suicidal attackers, insiders, and waterborne threats. Some of
these factors are not included in the proposed rule. For example, there
is no provision in the proposed DBT rule for an attribute of air-based
threats. The Commission invites and looks forward to public comment on
the proposed rule provisions, as well as whether or how the 12 factors
should be addressed in the DBT rule. The Commission will further
consider and resolve any comments received in the final rule.
The proposed rule would also revise certain exemptions for
independent spent fuel storage installations (ISFSIs). The current DBT
rule exempts ISFSIs from the land vehicle transport and land vehicle
bomb threats contained in Sec. Sec. 73.1(a)(1)(i)(E) and (a)(1)(iii),
respectively. These exemptions should no longer be retained because the
Commission issued orders to ISFSIs on October 16, 2002, requiring
ISFSIs to protect against these threats. The NRC evaluated the need to
apply waterborne requirements to ISFSIs and concluded that other means
in the proposed rule were sufficiently protective to preclude the need
for specific requirements regarding waterborne threats. Consequently,
an exemption from the waterborne threat has been added for ISFSIs in
this proposed rule.
The proposed rule would also amend the exemption in the current
Sec. 73.1(a) for licensees subject to the provisions of Sec. 73.20.
The current rule exempts these licensees from the requirements to
protect against vehicles transporting adversary personnel and equipment
and the land vehicle bomb. The Commission has determined, however, that
due to the current threat environment certain licensees subject to
Sec. 73.20 (Category I fuel cycle facilities) need to protect against
such threats, so the exemption must be amended accordingly. The amended
exemption would continue for other licensees described in 10 CFR 73.20
(e.g., fuel reprocessing plants licensed under Part 50).
The approach proposed in this rulemaking maintains a level of
detail in the Sec. 73.1(a) rule language that is generally comparable
to the current regulation, while updating the general DBT attributes in
a manner consistent with the insights gained from the application of
supplemental security requirements imposed by the April 29, 2003, DBT
orders. The result is a proposed rule with a level of detail that
reflects all major features of the DBTs, yet avoids compromising
licensee security by not publishing the specific tactical and
operational capabilities of the DBT adversaries. The goal of this
approach is to provide sufficient public notice of the upgrades to the
DBTs, including the new modes of attack that facilities must be
prepared to defend against, so that meaningful public input is possible
regarding the proposed rule's scope and content.
The NRC recognizes that some stakeholders may expect more detail
than is set forth in the current or proposed DBT regulations. However,
the more detail that is made publicly available about the specific
capabilities of the DBT adversaries, the greater the chance that
potential adversaries could exploit that information. The disclosure of
such details as the specific weapons, force size, ammunition, vehicles,
and bomb sizes that licensees must be prepared to defend against could
substantially assist an adversary in planning an attack.
On the other hand, it is important for the public to be informed of
the types of attacks against which nuclear power plants and Category I
fuel cycle facilities are required to defend. The public has a vital
stake in the security of these facilities, as well as the right to
meaningful comment when NRC proposes to amend its regulations.
Understanding the general scope of the proposed DBT rule is necessary
if the public is to exercise its right to meaningful comment and
oversight of NRC regulations.
After carefully balancing these competing interests, the NRC
arrived at the level of detail regarding the attributes of the DBT
presented in the proposed rule. More specific details (e.g., specific
weapons, ammunition, etc.) are consolidated in ACDs, which contain
classified or safeguards information. The technical bases for the ACDs
are derived largely from intelligence information, and also contain
classified and safeguards information that cannot be publicly
disclosed. These documents must be withheld from public disclosure and
made available only on a need-to-know basis to those who otherwise
qualify for access.
The ACDs may be updated from time to time as a result of the NRC's
periodic threat reviews, which NRC has been conducting since 1979.
Those threat assessments are performed in conjunction with the
intelligence and law enforcement communities to identify changes in the
threat environment which may in turn require adjustment of NRC security
requirements. Future revisions to the ACDs would not require changes to
the DBT regulations in Sec. 73.1, provided the changes remain within
the scope of the rule text.
The NRC consulted with Federal, State, and local agencies, and with
industry stakeholders in developing the updated DBTs. This consultation
involved analysis of intelligence information regarding the trends and
capabilities of potential adversaries, and discussion with Federal, law
enforcement, and intelligence community agencies. Public comments and
suggestions received in response to PRM-73-12, also informed the NRC's
development of this proposed rule. The resolution of PRM-73-12, which
is being granted in part through this rulemaking, is more fully
discussed in Section V of this notice.
The Commission concludes that the proposed amendments to Sec. 73.1
will continue to ensure adequate protection of public health and safety
and the common defense and security by requiring the secure use and
management of radioactive materials. The revised DBTs represent the
largest threats against which private sector facilities must be able to
defend with high assurance. The proposed amendments to Sec. 73.1
reflect requirements currently in place under existing NRC regulations
and orders.
[[Page 67383]]
IV. Section-by-Section Analysis
The following table provides a comparison between the proposed rule
text and the current rule text.
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Old New Change
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(a) Purpose. This part prescribes (a) Purpose. This part prescribes The proposed paragraph is modified
requirements for the establishment requirements for the establishment to clarify that the DBTs are
and maintenance of a physical and maintenance of a physical designed to protect against
protection system which will have protection system which will have diversion in addition to theft of
capabilities for the protection of capabilities for the protection of special nuclear material.
special nuclear material at fixed special nuclear material at fixed The proposed exemptions would be
sites and in transit and of plants sites and in transit and of plants updated based on the order
in which special nuclear materials in which special nuclear material requirements and conforming changes
used. The following design basis is used. The following design basis to other paragraphs of this part.
threats, where referenced in threats, where referenced in
ensuing sections of this part, ensuing sections of this part,
shall be used to design safeguards shall be used to design safeguards
systems to protect against acts of systems to protect against acts of
radiological sabotage and to radiological sabotage and to
prevent the theft of special prevent the theft or diversion of
nuclear material. Licensees subject special nuclear material. Licensees
to the provision of Sec. 72.182, subject to the provisions of Sec.
Sec. 72.212, Sec. 72.20, Sec. 73.20 (except for fuel cycle
73.50, and Sec. 73.60 are exempt licensees authorized under part 70
from Sec. 73.1(a)(1)(i)(E) and of this chapter to received,
Sec. 73.1(a)(1)(iii). acquire, possess, transfer, use, or
deliver for transportation formula
quantities of strategic special
nuclear material), Sec. 73.50,
and Sec. 73.60 are exempt from
Sec. 73.1(a)(1)(i)(E), Sec.
73.1(a)(1)(iii), Sec.
73.1(a)(1)(iv), Sec.
73.1(a)(2)(iii) and Sec.
73.1(a)(2)(iv). Licensees subject
to the provisions of Sec. 72.212,
are exempt from Sec.
73.1(a)(1)(iv).
(1) Radiological sabotage. (i) A (1) Radioloigcal sabotage. (i) A The proposed paragraph adds new
determined violent external determined violence external capabilities to the DBT including
assault, attack by stealth, or assault, attack by stealth, or operation as one or more teams and
deceptive actions, of several deceptive actions, including attack from multiple entry points.
persons with the following diversionary actions, by an
attributes, assistance and adversary force capable of
equipment: operating as one or more teams,
attacking from one or more entry
points, with the following
attributes, assistance and
equipment:
(1)(i)(A) Well-trained (including (1)(i)(A) Well-trained (including The proposed paragraph would add to
military training and skills) and military training and skills) and the DBT adversaries who are willing
dedicated individuals, dedicated individuals, willing to to kill or be killed and are
kill or be killed, with sufficient knowledgeable about specific target
knowledge to identify specific selection.
equipment or locations necessary
for a successful attack,
(1)(i)(B) inside assistance which (1)(i)(B) active (e.g., facilitate
may include a knowledgeable entrance and exit, disable alarms
individual who attempts to and communications, participate in
participate in a passive role violent attack) or passive (e.g.,
(e.g., provide information), an provide information), or both,
active role (e.g., facilitate knowledgeable inside assistance.
entrance and exit, disable alarms The reference to an individual
and communications, participate in would be removed and the paragraph
violent attack), or both, reworded to provide flexibility in
defining the scope of the inside
threat.
(1)(i)(C) suitable weapons, up to (1)(i)(C) suitable weapons, The phrase ``up to and including''
and including hand-held automatic including hand-held automatic was changed to ``including'' to
weapons, equipped with silencers weapons, equipped with silencers provide flexibility in defining the
and having effective long range and having effective long range range of weapons licensees must be
accuracy, accuracy, able to defend against.
(1)(i)(D) hand-carried equipment, (1)(i)(D) hand-carried equipment, This description is not revised by
including incapacitating agents and including incapacitating agents and the proposed rule.
explosives for use as tools of explosives for use as tools of
entry or for otherwise destroying entry or for otherwise destroying
reactor, facility, transporter, or reactor, facility, transporter, or
container integrity or features of container integrity or features of
the safeguards systems, and the safeguards systems, and
(1)(i)(E) a four-wheel drive land (1)(i)(E) land and water vehicles, The scope of vehicles licensees must
vehicle used for transporting which could be used for defend against would be expanded to
personnel and their hand-carried transporting personnel and their include water vehicles and a range
equipment to the proximity of vital hand-carried equipment to the of land vehicles beyond four-wheel
areas, and proximity of vital areas, and drive vehicles.
(1)(ii) An internal threat of an (1)(ii) An internal threat, and The current rule describes the
insider, including an employee (in internal threat as a threat posed
any position), and by an individual. The language
would be revised to provide
flexibility in defining the scope
of the internal threat without
adding details that may be useful
to an adversary.
[[Page 67384]]
(1)(iii) A four-wheel drive land (1)(iii) A land vehicle bomb The proposed paragraph would be
vehicle bomb. assault, which may be coordinated updated to reflect that licensees
with an external assault, and are required to protect against a
wide range of land vehicles. A new
mode of attack not previously part
of the DBT would be added
indicating that adversaries may
coordinate a vehicle bomb assault
with another external assault.
None (1)(iv) A waterborne vehicle bomb The proposed paragraph would add a
assault, which may be coordinated new mode of attack not previously
with an external assault. part of the DBT, that being a
waterborne vehicle bomb assault.
This paragraph also adds a
coordinated attack concept.
(2) Theft or diversion of formula (2) Theft or diversion of formula The proposed paragraph would add new
quantities of strategic special quantities of strategic special adversary capabilities to the DBT
nuclear material. (i) A determined, nuclear material. (i) A determined including operation as one or more
violent, external assault, attack violent external assault, attack by teams and attack from multiple
by stealth, or deceptive actions by stealth, or deceptive actions, entry points.
a small group with the following including diversionary actions, by
attributes, assistance, and an adversary force capable of
equipment: operating as one or more teams,
attacking from one or more entry
points, with the following
attributes, assistance and
equipment:
(2)(i)(A) Well-trained (including (2)(i)(A) Well-trained (including The proposed paragraph would add to
military training and skills) and military training and skills) and the DBT adversaries who are willing
dedicated individuals; dedicated individuals, willing to to kill or be killed and are
kill or be killed, with sufficient knowledgeable about specific target
knowledge to identify specific selection.
equipment or locations necessary
for a successful attack;
(2)(i)(B) Inside assistance that may (2)(i)(B) Active (e.g., facilitate The reference to an individual would
include a knowledgeable individual entrance and exit, disable alarms be removed and the paragraph
who attempts to participate in a and communications, participate in reworded to provide flexibility in
passive role (e.g., provide violent attack) or passive (e.g., defining the scope of the inside
information), an active role (e.g., provide information), or both, threat.
facilitate entrance and exit, knowledgeable inside assistance,
disable alarms and communications,
participate in violent attack), or
both;
(2)(i)(C) Suitable weapons, up to (2)(i)(C) Suitable weapons, The phrase ``up to and including''
and including hand-held automatic including hand-held automatic was changed to ``including'' to
weapons, equipped with silencers weapons, equipped with silencers provide flexibility in defining the
and having effective long-range and having effective long-range range of weapons licensees must be
accuracy; accuracy; able to defend against.
(2)(i)(D) Hand-carried equipment, (2)(i)(D) Hand-carried equipment, This description is not revised by
including incapacitating agents and including incapacitating agents and the proposed rule.
explosives for use as tools of explosives for use as tools of
entry or for otherwise destroying entry or for otherwise destroying
reactor, facility, transporter, or reactor, facility, transporter, or
container integrity or features of container integrity or features of
the safeguards system; the safeguards system;
(2)(i)(E) Land vehicles used for (2)(i)(E) Land and water vehicles, The scope of vehicles licensees must
transporting personnel and their which could be used for defend against would be expanded to
hand-carried equipment; and transporting personnel and their include water vehicles and a range
hand-carried equipment; and of land vehicles beyond four-wheel
drive vehicles.
(2)(i)(F) the ability to operate as Deleted This requirement would be included
two or more teams. in Sec. 73.1(a)(2)(i).
(2)(ii) An individual, including an (2)(ii) An internal threat, and The current rule describes the
employee (in any position), and internal threat as a threat posed
(2)(iii) A conspiracy between by an individual. The language
individuals in any position who may would be revised to provide
have: flexibility in defining the scope
(A) Access to and detailed knowledge of the internal threat without
of nuclear power plants or the adding details that may be useful
facilities referred to in Sec. to an adversary.
73.20(a), or
(B) items that could facilitate
theft of special nuclear material
(e.g., small tools, substitute
material, false documents, etc.),
or both.
None (2)(iii) A land vehicle bomb The proposed paragraph would be
assault, which may be coordinated updated to reflect that licensees
with an external assault, and are required to protect against a
wide range of land vehicles. A new
mode of attack not previously part
of the DBT would be added
indicating that adversaries may
coordinate a vehicle bomb assault
with another external assault.
None (2)(iv) A waterborne vehicle bomb The proposed paragraph would add a
assault, which may be coordinated new mode of attack not previously
with an external assault. part of the DBT, that being a
waterborne vehicle bomb assault.
This coordinated attack concept is
another upgrade to the current
regulation.
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[[Page 67385]]
Additional guidance concerning the adversary characteristics is
located in the corresponding draft regulatory guides (radiological
sabotage in DG-5017 and theft and diversion in DG-5018). These draft
RGs contain either safeguards or classified information and are not
publicly available.
V. Petition for Rulemaking (PRM-73-12)
As discussed above in this notice, the NRC staff reviewed PRM-73-12
to determine whether the regulations in Part 73 regarding the DBT
should be amended in response to requests in PRM-73-12 and public
comments received on the petition. PRM-73-12 was filed by the Committee
to Bridge the Gap on July 23, 2004. The petition requests that the NRC
amend its regulations to revise the DBT regulations (in terms of the
numbers, teams, capabilities, planning, willingness to die and other
characteristics of adversaries) to a level that encompasses, with a
sufficient margin of safety, the terrorist capabilities evidenced by
the attacks of September 11, 2001. The petition also requests that
security plans, systems, inspections, and force-on-force exercises be
revised in accordance with the amended DBT. Finally, the petition
requests a requirement be added to Part 73 to construct shields against
air attack (the shields are referred to as ``beamhenge'') which the
petition asserts would enable nuclear power plants to withstand an air
attack from a jumbo jet.
PRM-73-12 was published for public comment in the Federal Register
on November 8, 2004 (69 FR 64690). The public comment period expired on
January 24, 2005. There were 845 comments submitted on PRM-73-12, of
which 528 were form letters. Many of the comments were submitted after
the comment period expired; however, the staff reviewed and considered
all of the comments. Comments were received from nine state attorneys
general, approximately 20 public interest groups, a U.S. Congressman
from Massachusetts, and six industry groups and licensees. In addition,
two U.S. Senators and a U.S. Representative (all from New Jersey)
requested an extension to the comment period. The bulk of the comments
either supported the petition, requested a stronger DBT, or requested
that NRC give consideration to the petition. All the comments from
industry and licensees opposed the petition and indicated that the
supplemental DBT requirements imposed (by order) to date were adequate.
Based on a review of PRM-73-12 public comments, the NRC staff
prepared a summary of those comments in the PRM-73-12 comment summary
table (ML053040061). The table does not list each individual comment.
The staff has grouped the comments by topic and provided the NRC's
response. A review of the table shows that although there were a large
number of comments, the comments fell into a relatively small number of
topics.
The table contains the NRC's responses to the issues raised by
public comments, but the responses to comments do not include a
detailed comparison of the differences between the current DBT
requirements (as imposed by the April 29, 2003 orders) and the requests
in PRM-73-12. Such a comparison could compromise security. The NRC's
post-September 11, 2001, review of security requirements encompassed
all the issues raised by the petitioner, and a number of the
petitioner's requested changes to the DBT have been incorporated into
the proposed DBT amendments as discussed below.
The NRC is partially granting PRM-73-12 by conducting this proposed
rulemaking to revise the DBT requirements in Sec. 73.1(a). Some of the
requested changes in PRM-73-12 are reflected in the proposed rule text.
These changes include the proposed requirements in Sec. Sec.
73.1(a)(1)(i) and (a)(2)(i) that licensees be required to protect
against one or more teams of adversaries operating from multiple entry
points. PRM-73-12 also requested that the DBT regulation make clear
that adversaries are willing to kill and be killed. This change is
reflected in proposed Sec. Sec. 73.1(a)(1)(i)(A) and (a)(2)(i)(A). The
proposed rule would also require licensees to protect against
waterborne threats, a wider range of land vehicles, and coordinated
attacks. All of these features of the proposed rule grant requests made
in PRM-73-12.
The NRC intends to defer action on the other requests in PRM-73-12,
specifically those aspects of PRM 73-12 which deal with the defense of
nuclear power plants against aircraft, and to address those issues as
part of the final action on this proposed rule.
Federal and other governmental efforts to protect the nation from
terrorist attacks by air have increased substantially since September
11, 2001. Those efforts already include a variety of measures such as
enhanced airline passenger and baggage screening, strengthened cockpit
doors, and the federal Air Marshals program. Federal law enforcement
and intelligence agencies have increased efforts to identify potential
aircraft-related threats before they can be carried out. Such
improvements have already been exercised by the Department of Defense
and the Federal Aviation Administration through responses to airspace
violations near nuclear power plants that were subsequently determined
not to be threats. These and other government-wide efforts have
improved protection against air attacks on all industrial facilities,
both nuclear and non-nuclear.
Following the September 11, 2001, attacks in New York, the
Pentagon, and Pennsylvania, the NRC conducted assessments of the
potential for and consequences of terrorists targeting a nuclear power
plant for aircraft attack, the physical effects of such a strike, and
compounding factors such as meteorology that would affect the impact of
potential radioactive releases. Furthermore, the NRC required existing
nuclear power plant licensees to develop and implement strategies to
mitigate potential consequences in the unlikely event of an attack,
including an aircraft crash into a nuclear power plant. For new nuclear
power plants, the opportunity exists to develop designs that provide
for enhanced protection against potential threats. The NRC staff will
continue to review intelligence and threat reporting to recommend any
appropriate modifications to the DBT or NRC requirements to mitigate
air attacks.
PRM-73-12 also requests that nuclear power plants be required to
defend against more than the number of attackers that carried out the
September 11, 2001 attacks, and identifies specific weapons that
nuclear power plants should be able to defend against. The Commission
cannot comment publicly on the precise numbers of attackers or types of
weapons that nuclear power plants are required to defend against under
the proposed DBTs and ACDs for reasons stated earlier in this notice.
However, the Commission has conducted a thorough review of security to
continue to ensure that nuclear power plants and other licensed
facilities have effective defensive capabilities and security measures
in place given the changing threat environment. An important part of
this review was the consideration of a terrorist attack similar to that
which occurred on September 11, 2001. However, the DBT is based upon
review and analysis of actual demonstrated adversary characteristics in
a range of terrorist attacks, and a determination as to the attacks
against which a private security force could reasonably be expected to
defend.
[[Page 67386]]
In summary, the NRC grants PRM-73-12 in part by conducting this
proposed rulemaking to revise the DBT requirements in Sec. 73.1(a) to
reflect certain specific requested changes contained in PRM-73-12 in
the proposed rule text, and is deferring action on other requests in
PRM-73-12, specifically those aspects of PRM-73-12 which deal with air-
based attacks.
VI. Guidance
The NRC staff is preparing new regulatory guides, as listed below,
to provide detailed guidance on the revised DBT requirements in
proposed Sec. 73.1. These guides are intended to assist current
licensees in ensuring that their security plans meet requirements in
the proposed rule, as well as future license applicants in the
development of their security programs and plans. The new guidance
incorporates the insights gained from applying the earlier guidance
that was used to develop, review, and approve the site security plans
that licensees put in place in response to the April 2003 orders. As
such, this regulatory guidance is expected to be consistent with
revised security measures at current licensees. The publication of the
regulatory guides is planned to coincide with the publication of the
final rule. The guides are described below.
1. Draft Regulatory Guide (DG-5017), ``Guidance for the
Implementation of the Radiological Sabotage Design-Basis Threat
(Safeguards).'' This regulatory guide will provide guidance to the
industry on the radiological sabotage DBT. DG-5017 contains safeguards
information and, therefore, is being withheld from public disclosure
and distributed on a need-to-know basis to those who otherwise qualify
for access.
2. Draft Regulatory Guide (DG-5018), ``Guidance for the
Implementation of the Theft and Diversion Design-Basis Threat
(Classified).'' This regulatory guide will provide guidance to the
industry on the theft or diversion DBT. DG-5018 contains classified
information and, therefore, is withheld from public disclosure and
distributed only on a need to know basis to those who otherwise qualify
for access.
VII. Criminal Penalties
For the purposes of Section 223 of the Atomic Energy Act, as
amended, the Commission is issuing the proposed rule to revise Sec.
73.1 under one or more sections of 161 of the Atomic Energy Act of 1954
(AEA). Criminal penalties, as they apply to regulations in Part 73 are
discussed in Sec. 73.81.
VIII. Compatibility of Agreement State Regulations
Under the ``Policy Statement on Adequacy and Compatibility of
Agreement States Programs,'' approved by the Commission on June 20,
1997, and published in the Federal Register (62 FR 46517; September 3,
1997), this rule is classified as compatibility ``NRC.'' Compatibility
is not required for Category ``NRC'' regulations. The NRC program
elements in this category are those that relate directly to areas of
regulation reserved to the NRC by the AEA or the provisions of Title 10
of the Code of Federal Regulations, and although an Agreement State may
not adopt program elements reserved to NRC, it may wish to inform its
licensees of certain requirements via a mechanism that is consistent
with the particular State's administrative procedure laws, but does not
confer regulatory authority on the State.
IX. Availability of Documents
Some documents discussed in this rule are not available to the
public. The following table indicates which documents are available to
the public and how they may be obtained.
Public Document Room (PDR). The NRC Public Document Room is located
at 11555 Rockville Pike, Rockville, Maryland 20852.
Rulemaking Web site (Web). The NRC's interactive rulemaking Web
site is located at http://ruleforum.llnl.gov. These documents may be
viewed and downloaded electronically via this Web site.
NRC's Electronic Reading Room (ERR). The NRC's electronic reading
room is located at http://www.nrc.gov/reading-rm.html.
------------------------------------------------------------------------
Document PDR Web ERR
------------------------------------------------------------------------
Environmental Assessment.... X X ML053040039
Regulatory Analysis......... X X ML053040013
Public Comments on PRM-73-12 X X ML053040061
Radiological Sabotage no no no
Adversary Characteristics
document.
Theft and Diversion no no no
Adversary Characteristics
document.
Technical Basis Document.... no no no
Draft RG DG-5017 on no no no
Radiological Sabotage.
Draft RG DG-5018 on Theft or no no no
Diversion.
Memorandum: Status of X X ML041180532
Security-Related Rulemaking.
Commission SRM dated August X X ML042360548
23, 2004.
Memorandum: Schedule for X X ML043060572
Part 73 Rulemakings.
Letter to Petitioner........ X X ML052920150
Commission SRM dated October X X ML053000448
27, 2005.
------------------------------------------------------------------------
X. Plain Language
The Presidential memorandum dated June 1, 1998, entitled ``Plain
Language in Government Writing,'' published on June 10, 1998 (63 FR
31883) directed that the Government's documents be in plain, clear, and
accessible language. The NRC requests comments on the proposed rule
specifically with respect to the clarity and effectiveness of the
language used. Comments should be sent to the NRC as explained in the
ADDRESSES caption of this notice.
XI. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using such a standard is inconsistent with applicable law or is
otherwise impractical. The NRC is not aware of any voluntary consensus
standard that could be used instead of the proposed Government-unique
standards. The NRC will consider using a voluntary consensus standard
if an appropriate standard is identified.
XII. Finding of No Significant Environmental Impact: Environmental
Assessment: Availability
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
Subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a
major Federal action significantly affecting the quality
[[Page 67387]]
of the human environment and, therefore, an environmental impact
statement is not required.
The determination of this environmental assessment is that there
will be no significant offsite impact to the public from this action.
However, the general public should note that the NRC is seeking public
participation; availability of the environmental assessment is provided
in Section IX. Comments on any aspect of the environmental assessment
may be submitted to the NRC as indicated under the ADDRESSES heading.
The NRC has sent a copy of the environmental assessment and this
proposed rule to every State Liaison Officer and requested their
comments on the environmental assessment.
XIII. Paperwork Reduction Act Statement
This proposed rule does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval number 3150-0002.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
XIV. Regulatory Analysis
The Commission has prepared a draft regulatory analysis on this
proposed regulation. The analysis examines the costs and benefits of
the alternatives considered by the Commission. The Commission requests
public comment on the draft regulatory analysis. Availability of the
regulatory analysis is provided in Section IX. Comments on the draft
analysis may be submitted to the NRC as indicated under the ADDRESSES
heading.
XV. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Commission certifies that this rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This proposed rule affects only the licensing and
operation of nuclear power plants and Category I fuel cycle facilities.
The companies that own these plants do not fall within the scope of the
definition of ``small entities'' set forth in the Regulatory
Flexibility Act or the size standards established by the NRC (10 CFR
2.810).
XVI. Backfit Analysis
The NRC has determined, pursuant to the exception in 10 CFR
50.109(a)(4)(iii), that a backfit analysis is unnecessary for this
proposed rule. Section 50.109 states in pertinent part that a backfit
analysis is not required if the Commission finds and declares with
appropriate documented evaluation for its finding that a ``regulatory
action involves defining or redefining what level of protection to the
public health and safety or common defense and security should be
regarded as adequate.'' The proposed rule would increase the security
requirements currently prescribed in NRC regulations, and is necessary
to protect nuclear facilities against potential terrorists. When the
Commission imposed security enhancements by order in April 2003, it did
so in response to an escalated domestic threat level. Since that time,
the Commission has continued to monitor intelligence reports regarding
plausible threats from terrorists currently facing the U.S. The
Commission has also gained experience from implementing the order
requirements and reviewing revised licensee security plans. The
Commission has considered all of this information and finds that the
security requirements previously imposed by DBT orders, which applied
only to existing licensees, should be made generically applicable. The
Commission further finds that the proposed rule would redefine the
security requirements stated in existing NRC regulations, and is
necessary to ensure that the public health and safety and common
defense and security are adequately protected in the current, post-
September 11, 2001, environment.
List of Subjects in 10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to
adopt the following amendments to 10 CFR Part 73.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat.
2750 (44 U.S.C. 3504 note). Section 73.1 also issued under secs.
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C, 10155,
10161). Section 73.37(f) also issued under sec. 301, Pub. L. 96-295,
94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under
sec. 606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C. 2169).
2. In Sec. 73.1, paragraph (a) is revised to read as follows:
Sec. 73.1 Purpose and scope.
(a) Purpose. This part prescribes requirements for the
establishment and maintenance of a physical protection system which
will have capabilities for the protection of special nuclear material
at fixed sites and in transit and of plants in which special nuclear
material is used. The following design basis threats, where referenced
in ensuing sections of this part, shall be used to design safeguards
systems to protect against acts of radiological sabotage and to prevent
the theft or diversion of special nuclear material. Licensees subject
to the provisions of Sec. 73.20 (except for fuel cycle licensees
authorized under Part 70 of this chapter to receive, acquire, possess,
transfer, use, or deliver for transportation formula quantities of
strategic special nuclear material), Sec. 73.50, and Sec. 73.60 are
exempt from Sec. 73.1(a)(1)(i)(E), Sec. 73.1(a)(1)(iii), Sec.
73.1(a)(1)(iv), Sec. 73.1(a)(2)(iii), and Sec. 73.1(a)(2)(iv).
Licensees subject to the provisions of Sec. 72.212 are exempt from
Sec. 73.1(a)(1)(iv).
(1) Radiological sabotage. (i) A determined violent external
assault, attack by stealth, or deceptive actions, including
diversionary actions, by an adversary force capable of operating as one
or more teams, attacking from one or more entry points, with the
following attributes, assistance and equipment:
(A) Well-trained (including military training and skills) and
dedicated individuals, willing to kill or be killed, with sufficient
knowledge to identify specific equipment or locations necessary for a
successful attack,
(B) Active (e.g., facilitate entrance and exit, disable alarms and
communications, participate in violent attack) or passive (e.g.,
provide information), or both, knowledgeable inside assistance,
(C) Suitable weapons, including hand-held automatic weapons,
equipped with silencers and having effective long range accuracy,
(D) Hand-carried equipment, including incapacitating agents and
[[Page 67388]]
explosives for use as tools of entry or for otherwise destroying
reactor, facility, transporter, or container integrity or features of
the safeguards system, and
(E) Land and water vehicles, which could be used for transporting
personnel and their hand-carried equipment to the proximity of vital
areas, and
(ii) An internal threat, and
(iii) A land vehicle bomb assault, which may be coordinated with an
external assault, and
(iv) A waterborne vehicle bomb assault, which may be coordinated
with an external assault.
(2) Theft or diversion of formula quantities of strategic special
nuclear material. (i) A determined violent external assault, attack by
stealth, or deceptive actions, including diversionary actions, by an
adversary force capable of operating as one or more teams, attacking
from one or more entry points, with the following attributes,
assistance and equipment:
(A) Well-trained (including military training and skills) and
dedicated individuals, willing to kill or be killed, with sufficient
knowledge to identify specific equipment or locations necessary for a
successful attack;
(B) Active (e.g., facilitate entrance and exit, disable alarms and
communications, participate in violent attack) or passive (e.g.,
provide information), or both, knowledgeable inside assistance,
(C) Suitable weapons, including hand-held automatic weapons,
equipped with silencers and having effective long-range accuracy;
(D) Hand-carried equipment, including incapacitating agents and
explosives for use as tools of entry or for otherwise destroying
reactor, facility, transporter, or container integrity or features of
the safe-guards system;
(E) Land and water vehicles, which could be used for transporting
personnel and their hand-carried equipment; and
(ii) An internal threat, and
(iii) A land vehicle bomb assault, which may be coordinated with an
external assault, and
(iv) A waterborne vehicle bomb assault, which may be coordinated
with an external assault.
Dated at Rockville, Maryland this 2nd day of November, 2005.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-22200 Filed 11-4-05; 8:45 am]
BILLING CODE 7590-01-P