[Federal Register Volume 75, Number 44 (Monday, March 8, 2010)]
[Proposed Rules]
[Pages 10444-10445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4827]



10 CFR Part 73

[Docket No. PRM-73-14; NRC-2009-0493]

Nuclear Energy Institute; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.


SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking (PRM) submitted by the Nuclear Energy Institute (NEI) 
(the petitioner). The petitioner requested that the NRC amend the 
compliance date for specific requirements in the NRC's regulations. The 
NRC decided to deny PRM-73-14 for the reasons stated in this document.

ADDRESSES: You can access publicly available documents related to this 
petition for rulemaking using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Room O1 
F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into 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 
[email protected].
    Federal Rulemaking Web site: Supporting materials related to this 
petition for rulemaking can be found at http://www.regulations.gov by 
searching on Docket ID: NRC-2009-0493. Address questions about NRC 
dockets to Carol

[[Page 10445]]

Gallagher 301-492-3668; e-mail [email protected].

FOR FURTHER INFORMATION CONTACT: Timothy Reed, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555. Telephone: 301-415-1462 or e-mail: [email protected].


The Petition

    In a letter to Chairman Gregory B. Jaczko dated September 25, 2009, 
NEI, the petitioner, requested that the NRC undertake an expedited 
rulemaking to revise the compliance date for specific requirements 
within Title 10 of the Code of Federal Regulations (10 CFR) 73.55, 
``Requirements for Physical Protection of Licensed Activities in 
Nuclear Power Reactors Against Radiological Sabotage.'' The NRC 
reviewed the request for rulemaking and determined that the request met 
the minimum sufficiency requirements of 10 CFR 2.802, ``Petition for 
Rulemaking'' and, therefore, was considered as a petition for 
rulemaking. Accordingly, the NRC docketed the request as PRM-73-14 and 
notified the petitioner of this decision by letter dated October 1, 
2009. Due to the exigent circumstances associated with the request, the 
NRC did not prepare a notice of receipt and request for comment, and 
instead gave immediate consideration to the request, convening a 
petition review board (PRB) on November 9, 2009.
    The petitioner requested the NRC amend its regulations to change 
the compliance date for specific requirements of 10 CFR part 73 to 
December 31, 2010, based on the results of an industry survey conducted 
by NEI. The petitioner states that 24 sites will seek schedular 
exemption requests from the March 31, 2010 compliance date, and 9 more 
sites are evaluating the need for exemptions. The petitioner states 
that two provisions of the new Power Reactor Security rule, namely 10 
CFR 73.55(e) ``Physical barriers'' and 10 CFR 73.55(i) ``Detection and 
assessment systems'' will be the subject of nearly all the exemption 
    In support of this request the petitioner notes that the subject 
provisions of 10 CFR 73.55 are problematic because these provisions may 
require physical modifications to the plant and involve engineering 
analysis, design, equipment procurement, installation, testing, and 
related training. The petitioner indicates that absent a rule change to 
modify the implementation date, both NRC and industry would be required 
to divert vast resources to review and approve exemption requests for 
potentially more than half of the power reactor sites. The petitioner 
states that these same resources are needed to finalize the remaining 
regulatory guidance for implementation of the new Power Reactor 
Security rulemaking.
    The petitioner states that the nuclear energy industry has fully 
implemented numerous new security provisions and enhancements since the 
terrorist attacks of September 11, 2001, including NRC orders, an 
enhanced design basis threat, and numerous threat advisories. 
Additionally, the petitioner notes that NRC has conducted baseline 
inspections of industry actions to address large fires and explosions, 
and has evaluated force-on-force exercises for the past 7 years. The 
petitioner states that industry has been proactive in many initiatives 
that strengthen nuclear power reactor security. These initiatives were 
undertaken with the U.S. Department of Homeland Security, the Federal 
Bureau of Investigation, and local law enforcement authorities. 
Finally, the petitioner notes that all these activities have resulted 
in nuclear power plants being recognized as the most protected and 
secure of domestic private industrial facilities.

NRC Evaluation

    The NRC reviewed the petition and reached the following 
     Revising the compliance date established by the final 
Power Reactor Security rulemaking would require the NRC to undertake a 
notice and comment rulemaking.
     The data contained in PRM-73-14 does not provide enough 
information to currently support the NRC assembling a proposed rule 
that would contain a sufficiently robust regulatory basis.
     The NRC would need to interact with external stakeholders 
to develop the additional supporting information necessary for 
completing an adequate notice and comment rulemaking.
     There is not sufficient time, before the new Power Reactor 
Security rule compliance date of March 31, 2010, to allow the NRC to 
collect and analyze the necessary data and complete an adequate notice 
and comment rulemaking. This is due, in part, to statutory rulemaking 
process requirements under the Administrative Procedure Act (i.e., 
development, approval, and issuance of a proposed rule; adequate public 
comment period; processing and analysis of stakeholder comments; 
development, approval, and issuance of a final rule; approval of the 
final rule by OMB if there are paperwork provisions).
     If the NRC were to pursue a more narrow revision to the 
compliance provisions of 10 CFR 73.55, this rule would require the NRC 
to tailor rule provisions to specific facilities and situations. 
Developing this more complex and specific compliance language with the 
supporting regulatory basis would, at a minimum, require additional 
interactions with external stakeholders.
     Revising the 10 CFR 73.55 compliance date is an overly 
broad solution to the petitioner's problem. A revision to the 
compliance date would relieve all power reactor licensees from 
implementing all the new requirements by March 31, 2010. However, it is 
clear that according to the data provided by the petitioner, that fewer 
than half of the licensees intend to request relief, and the 
requirements in the new rule that seem particularly problematic 
represent a very small percentage of the total number of requirements 
in the rule. Under such circumstances, the exemption process appears to 
be the best regulatory tool to address the situation. The staff is 
currently addressing this potential license compliance issue through 
review of scheduler exemptions.

Public Comments on the Petition

    Due to the exigent circumstances associated with the request, the 
NRC did not prepare a notice of receipt and request for comment, and 
instead gave immediate consideration to the request. Accordingly, there 
are no public comments on this petition.

Determination of Petition

    For reasons cited above, the NRC is denying PRM-73-14.

    Dated at Rockville, Maryland, this 2nd of March 2010.

    For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2010-4827 Filed 3-5-10; 8:45 am]