[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Pages 15748-15749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7030]



[Docket No. 50-341; NRC-2010-0099]

Detroit Edison Company; Fermi 2; Exemption

1.0 Background

    Detroit Edison Company (the licensee) is the holder of Facility 
Operating License No. NPF-43, which authorizes operation of Fermi 2. 
The license provides, among other things, that the facility is subject 
to all rules, regulations, and orders of the U.S. Nuclear Regulatory 
Commission (NRC, the Commission) now or hereafter in effect.
    The facility consists of one boiling-water reactor located in 
Monroe County, Michigan.

2.0 Request/Action

    Title 10 of the Code of Federal Regulations (10 CFR) Part 73, 
``Physical protection of plants and materials,'' Section 73.55, 
``Requirements for physical protection of licensed activities in 
nuclear power reactors against radiological sabotage,'' published March 
27, 2009, effective May 26, 2009, with a full implementation date of 
March 31, 2010, requires licensees to protect, with high assurance, 
against radiological sabotage by designing and implementing 
comprehensive site security programs. The amendments to 10 CFR 73.55 
published on March 27, 2009, establish and update generically 
applicable security requirements similar to those previously imposed by 
Commission orders issued after the terrorist attacks of September 11, 
2001, and implemented by licensees. In addition, the amendments to 10 
CFR 73.55 include additional requirements to further enhance site 
security based upon insights gained from implementation of the post-
September 11, 2001, security orders. It is from five of these new 
requirements that Fermi 2 now seeks an exemption from the March 31, 
2010, implementation date. All other physical security requirements 
established by this recent rulemaking have already been or will be 
implemented by the licensee by March 31, 2010.
    By letter dated November 19, 2009, as supplemented by letter dated 
December 23, 2009, the licensee requested an exemption in accordance 
with 10 CFR 73.5, ``Specific exemptions.'' The licensee's November 19, 
2009, and December 23, 2009, letters, have certain portions which 
contain proprietary and safeguards information and, accordingly, are 
not available to the public. The licensee has requested an exemption 
from the March 31, 2010, compliance date stating that it must complete 
a number of significant modifications to the current site security 
configuration before all requirements can be met. Specifically, the 
request is to extend the compliance date for five requirements that 
would be in place by May 31, 2011, versus the March 31, 2010, deadline. 
Being granted this exemption for the five requirements would allow the 
licensee to complete the modifications designed to update aging 
equipment and incorporate state-of-the-art technology to meet or exceed 
the noted regulatory requirements.

3.0 Discussion of Part 73 Schedule Exemptions From the March 31, 2010, 
Full Implementation Date

    Pursuant to 10 CFR 73.55(a)(1), ``By March 31, 2010, each nuclear 
power reactor licensee, licensed under 10 CFR part 50, shall implement 
the requirements of this section through its Commission-approved 
Physical Security Plan, Training and Qualification Plan, Safeguards 
Contingency Plan, and Cyber Security Plan referred to collectively 
hereafter as `security plans.' '' Pursuant to 10 CFR 73.5, the 
Commission may, upon application by any interested person or upon its 
own initiative, grant exemptions from the requirements of 10 CFR part 
73 when the exemptions are authorized by law, and will not endanger 
life or property or the common defense and security, and are otherwise 
in the public interest.
    NRC approval of exemption, as noted above, would allow an extension 
from March 31, 2010, to May 31, 2011, for the implementation date for 
five specified areas of the new rule. The NRC staff has determined that 
granting of the licensee's proposed exemption would not result in a 
violation of the Atomic Energy Act of 1954, as amended, or the 
Commission's regulations. Therefore, the exemption is authorized by 
    In the draft final power reactor security rule provided to the 
Commission, the NRC staff proposed that the requirements of the new 
regulation be met within 180 days. The Commission directed a change 
from 180 days to approximately 1 year for licensees to fully implement 
the new requirements. This change was incorporated into the final rule. 
From this, it is clear that the Commission wanted to provide a 
reasonable timeframe for licensees to achieve full compliance.
    As noted in the final rule, the Commission also anticipated that 
licensees would have to conduct site-specific analyses to determine 
what changes were necessary to implement the rule's requirements, and 
that any such changes could be accomplished through a variety of 
licensing mechanisms, including exemptions. Since issuance of the final 
rule, the Commission has rejected a generic industry request to extend 
the rule's compliance date for all operating nuclear power plants, but 
noted that the Commission's regulations provide mechanisms for 
individual licensees, with good cause, to apply for relief from the 
compliance date (Reference: June 4, 2009, letter, from R. W. Borchardt, 
NRC, to M.S. Fertel, Nuclear Energy Institute). The licensee's request 
for an exemption is therefore consistent with the approach set forth by 
the Commission and discussed in the June 4, 2009, letter.

Fermi 2 Schedule Exemption Request

    The licensee provided detailed information in Enclosures 1 and 2 of 
its supplemental submittal to its November 19, 2009, letter, requesting 
an exemption. It describes a comprehensive plan which provides a

[[Page 15749]]

timeline for achieving full compliance with the new regulation. 
Enclosures 1 and 2 contain proprietary information regarding the site 
security plan, details of the specific requirements of the regulation 
for which the site cannot be in compliance by the March 31, 2010, 
deadline and why, the required changes to the site's security 
configuration, and a timeline with ``critical path'' activities that 
will enable the licensee to achieve full compliance by May 31, 2011. 
The timeline provides dates indicating when (1) construction will begin 
on various phases of the project (i.e., new buildings and fences), and 
(2) critical equipment will be installed, tested and become 
    Notwithstanding the schedule exemptions of these limited 
requirements, the licensee indicated that it will continue to be in 
compliance with all other applicable physical security requirements as 
described in 10 CFR 73.55 and reflected in its current NRC-approved 
physical security program. By May 31, 2011, the licensee also stated 
that Fermi 2 will be in full compliance with the regulatory 
requirements of 10 CFR 73.55, as issued on March 27, 2009.

4.0 Conclusion for Part 73 Schedule Exemption Request

    The NRC staff has reviewed the licensee's submittals and concludes 
that the licensee has provided adequate justification for its request 
for an extension of the compliance date to May 31, 2011, with regard to 
five specified requirements of 10 CFR 73.55.
    Accordingly, the Commission has determined that pursuant to 10 CFR 
73.5, ``Specific exemptions,'' an exemption from the March 31, 2010, 
compliance date is authorized by law and will not endanger life or 
property or the common defense and security, and is otherwise in the 
public interest. Therefore, the Commission hereby grants the requested 
exemption. The NRC staff has determined that the long-term benefits 
that will be realized when the Fermi 2 modifications are completed 
justifies exceeding the full compliance date in the case of this 
particular licensee. The security measures Fermi 2 needs additional 
time to implement are new requirements imposed by March 27, 2009, 
amendments to 10 CFR 73.55, and are in addition to those currently 
required by the security orders issued in response to the events of 
September 11, 2001. Therefore, the NRC concludes that the licensee's 
actions are in the best interest of protecting the public health and 
safety through the security changes that will result from granting this 
    As per the licensee's request and the NRC's regulatory authority to 
grant an exemption from the March 31, 2010, deadline for the five 
requirements specified in Enclosure 1 of the Detroit Edison letter 
dated December 23, 2009, the licensee is required to be in full 
compliance by May 31, 2011. In achieving compliance, the licensee is 
reminded that it is responsible for determining the appropriate 
licensing mechanism (i.e., 10 CFR 50.54(p) or 10 CFR 50.90) for 
incorporation of all necessary changes to its security plans.
    Pursuant to 10 CFR 51.32, ``Finding of no significant impact,'' the 
Commission has previously determined that the granting of this 
exemption will not have a significant effect on the quality of the 
human environment [75 FR 11946; dated March 12, 2010].
    This exemption is effective upon issuance.

    Dated at Rockville, Maryland, this 19th day of March 2010.

    For the Nuclear Regulatory Commission.
Allen G. Howe,
Acting Director, Division of Operating Reactor Licensing, Office of 
Nuclear Reactor Regulation.
[FR Doc. 2010-7030 Filed 3-29-10; 8:45 am]