[Federal Register Volume 76, Number 23 (Thursday, February 3, 2011)]
[Proposed Rules]
[Pages 6200-6245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1766]



[[Page 6199]]

Vol. 76

Thursday,

No. 23

February 3, 2011

Part II





Nuclear Regulatory Commission





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10 CFR Part 73



Enhanced Weapons, Firearms Background Checks, and Security Event 
Notifications; Proposed Rule

  Federal Register / Vol. 76, No. 23 / Thursday, February 3, 2011 / 
Proposed Rules  

[[Page 6200]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

[NRC-2011-0018]
RIN 3150-AI49


Enhanced Weapons, Firearms Background Checks, and Security Event 
Notifications

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC or the Commission) is 
proposing regulations that would implement its authority under the new 
section 161A of the Atomic Energy Act of 1954 (AEA), as amended, and 
revise existing regulations governing security event notifications. 
These proposed regulations are consistent with the provisions of the 
Firearms Guidelines the NRC published under section 161A with the 
approval of the U.S. Attorney General on September 11, 2009 (74 FR 
46800).
    The NRC previously proposed new regulations on October 26, 2006 (71 
FR 62663), that would have implemented this new authority as part of a 
larger proposed rule entitled ``Power Reactor Security Requirements.'' 
However, based upon changes to the final Firearms Guidelines the NRC is 
now proposing further revisions in these implementing regulations that 
address the voluntary application for enhanced weapons and the 
mandatory firearms background checks under section 161A. These 
implementing regulations would only apply to nuclear power reactor 
facilities and Category I strategic special nuclear material (SSNM) 
facilities.
    In addition, the NRC is also proposing revisions addressing 
security event notifications from different classes of facilities and 
the transportation of radioactive material consistently and would add 
new event notification requirements on the theft or loss of enhanced 
weapons.

DATES: Submit comments on this proposed rule by May 4, 2011. Submit 
comments specific to the information collection burden aspects of this 
proposed rule by March 7, 2011. Comments received after these 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: Please include Docket ID NRC-2011-0018 in the subject line 
of your comments. See Section I of this document for instructions on 
how to submit comments.
    Federal rulemaking Web site: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2011-0018. Address 
questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail: 
[email protected].
    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 301-415-1677.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays (telephone 301-
415-1677).
    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.
    See Section IX of this document, Availability of Documents, for 
instructions on how to access NRC's Agencywide Documents Access and 
Management System (ADAMS) and other methods for obtaining publicly 
availability documents related to this action.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Beall, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone 301-415-3874; e-mail: [email protected] or Mr. 
Philip Brochman, Office of Nuclear Security and Incident Response, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone 
301-415-6557; e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Submitting Comments
II. Background
III. Discussion
IV. Resolution of Public Comments on the October 2006 Proposed Rule
V. Section-by-Section Analysis
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
XIII. Paperwork Reduction Act Statement
XIV. Regulatory Analysis
XV. Regulatory Flexibility Certification
XVI. Backfit Analysis

I. Submitting Comments

    Comments on rulemakings submitted in writing or in electronic form 
will be posted on the NRC Web site and on the Federal rulemaking Web 
site Regulations.gov. 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.
    The NRC requests that any party soliciting or aggregating comments 
received from other persons for submission to the NRC inform those 
persons that the NRC will not edit their comments to remove any 
identifying or contact information, and therefore, they should not 
include any information in their comments that they do not want 
publicly disclosed.

II. Background

A. Implementation of Section 161A of the AEA

    On August 8, 2005, President Bush signed into law the Energy Policy 
Act of 2005 (EPAct), Public Law 109-58, 119 Stat. 594 (2005). Section 
653 of the EPAct amended the AEA by adding section 161A, ``Use of 
Firearms by Security Personnel'' (42 U.S.C. 2201a). Section 161A of the 
AEA provides the NRC with new authority that will enhance security at 
designated facilities of NRC licensees and certificate holders. Section 
161A also provides the NRC with new authority that will enhance 
security with respect to the possession or use of certain radioactive 
material or other property owned or possessed by an NRC licensee or 
certificate holder, or the transportation of such material or other 
property that has been determined by the Commission to be of 
significance to the common defense and security or public health and 
safety.
    Section 161A also mandates that all security personnel with duties 
requiring access to covered weapons \1\ who are engaged in the 
protection of Commission-designated facilities, radioactive material, 
or other property owned or operated by an NRC licensee or certificate 
holder, be subject to a fingerprint-based background check by the U.S. 
Attorney General and a firearms background check against the Federal 
National Instant Background Check

[[Page 6201]]

System (NICS). These firearms background checks will provide assurance 
that these security personnel are not barred under Federal or 
applicable State law from receiving, possessing, transporting, or using 
any weapons.
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    \1\ Covered weapons, standard weapons, and enhanced weapons are 
new terms the NRC is defining in Sec.  73.2 of this proposed rule. 
Enhanced weapons are weapons registered under the National Firearms 
Act (e.g., machine guns, short-barreled shotguns, and short-barreled 
rifles). Standard weapons are all other weapons. Covered weapons are 
enhanced plus standard weapons.
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    Section 161A also provides two potential advantages to NRC 
licensees and certificate holders to enhance security. The first 
advantage is that certain licensees and certificate holders, after 
approval by the NRC, will be permitted to obtain and employ in their 
protective strategies weapons that they were not previously permitted 
to own or possess under Commission authority and applicable U.S. laws. 
These include short-barreled shotguns, short-barreled rifles, and 
machine guns (hereinafter referred to as ``enhanced weapons 
authority''). The second advantage is that security personnel of 
certain licensees or certificate holders will be permitted to transfer, 
receive, possess, transport, import, and use handguns, rifles, 
shotguns, short-barreled shotguns, short-barreled rifles, machine guns, 
semiautomatic assault weapons, ammunition for these weapons, and large 
capacity ammunition feeding devices, notwithstanding State, local, and 
certain Federal firearms laws, including regulations, that otherwise 
prohibited these actions (hereinafter referred to as ``preemption 
authority''). Before the enactment of section 161A, with limited 
exceptions, only Federal, State, or local law enforcement authorities 
could lawfully possess machine guns. Exercise of section 161A 
authority, however, will allow certain licensees and certificate 
holders, after obtaining the necessary authorization from the NRC, to 
lawfully possess enhanced weapons that they previously were not 
authorized to possess. Licensee and certificate holder applications for 
enhanced weapons authority and preemption authority are both voluntary.
    Subsequent to the enactment of the EPAct, NRC staff and U.S. 
Department of Justice (DOJ) staff, including the Federal Bureau of 
Investigation (FBI) and the U.S. Bureau of Alcohol, Tobacco, Firearms, 
and Explosives (ATF), began development of the Firearms Guidelines 
required under section 161Ad of the AEA. As required by section 161Ad, 
the provisions of section 161A took effect when the Commission, with 
the approval of the U.S. Attorney General, published the approved 
Firearms Guidelines in the Federal Register on September 11, 2009 (74 
FR 46800). The issued Firearms Guidelines may also be found in the 
Federal e-Rulemaking Web site at http://www.regulations.gov under 
Docket ID NRC-2011-0018.

B. October 2006 Proposed Rule--Implementation of Section 161A of the 
AEA

    In parallel with the development of the Firearms Guidelines, the 
NRC developed proposed implementing regulations. On October 26, 2006 
(71 FR 62663), the NRC published proposed regulations to implement the 
provisions of section 161A as part of a larger proposed amendment to 
its regulations under Title 10 of the Code of Federal Regulations (CFR) 
parts 50, 72, and 73, ``Power Reactor Security Requirements.'' These 
proposed implementing regulations were based upon the draft version of 
the Firearms Guidelines that existed in September 2006. The NRC had 
proposed that the provisions of section 161A would apply only to power 
reactor facilities and Category I Strategic Special Nuclear Material 
(SSNM) facilities (i.e., facilities possessing or using formula 
quantities or greater of strategic special nuclear material). This 
would permit these two highest risk classes of licensed facilities to 
apply to the NRC for section 161A authority (either combined enhanced 
weapons authority and preemption authority or stand-alone preemption 
authority).
    The NRC had also indicated that it would consider making section 
161A authority available to additional classes of facilities, 
radioactive material, or other property, but this would be accomplished 
in a separate future rulemaking.
    The NRC had recognized that the language of the issued Firearms 
Guidelines might differ significantly from the September 2006 version 
of the draft Firearms Guidelines (which was used to develop the October 
2006 proposed rule), and therefore changes to the proposed rule might 
be required to ensure that the final rule text was consistent with the 
final version of the Firearms Guidelines. The NRC had noted this 
possibility in the October 2006 proposed rule (see 71 FR 62666) and had 
indicated that appropriate rulemaking actions might be necessary to 
reconcile the issued Firearms Guidelines and the proposed rule. 
Subsequent to the publication of the October 2006 proposed rule, the 
DOJ required several significant changes to the Firearms Guidelines. 
Consequently, the NRC is taking appropriate action in this proposed 
rule by proposing further revisions to the agency's regulations that 
would implement the Firearms Guidelines.

C. October 2006 Proposed Rule--Security Event Notifications

    The NRC had also proposed several changes to the security event 
notification requirements in part 73 in the October 2006 proposed rule 
to address imminent attacks or threats against power reactors as well 
as suspicious events that could be indicative of potential 
reconnaissance, surveillance, or challenges to security systems. These 
proposed changes would have made generically applicable provisions 
similar to those that had been contained in security advisories and 
other guidance issued by the NRC following the events of September 11, 
2001.
    For example, these advisories had requested that power reactor 
licensees voluntarily report suspicious activities that could be 
indicative of surveillance or reconnaissance efforts. The October 2006 
proposed rule changes were principally focused on power reactor 
facilities. Thus, they did not address identical types of events at 
Category I SSNM facilities, at other waste and special nuclear material 
(SNM) facilities, or during the transportation of spent nuclear fuel 
(SNF), high-level radioactive waste (HLW), or SSNM. Additionally, for 
licensees who obtained enhanced weapons, a new notification provision 
was also proposed when the licensee made a separate notification to ATF 
(e.g., regarding a stolen or lost enhanced weapon). However, as 
discussed previously, the final Firearms Guidelines contained new 
provisions regarding notifications to the NRC and local law enforcement 
officials involving stolen or lost enhanced weapons.
    Based upon the changes now reflected in the final Firearms 
Guidelines, comments received on the October 2006 proposed rule, and a 
reassessment by NRC staff on security event notification needs for 
equivalent facilities and activities, the NRC is proposing further 
revisions to the security event notification requirements in part 73. 
In several cases, the NRC has retained the proposed new or modified 
notification requirements from the October 2006 proposed rule, but has 
expanded their applicability to include additional classes of 
facilities and activities (e.g., Category I SSNM facilities and the 
transportation of SNF, HLW, and Category I SSNM). The NRC is proposing 
to make changes to the security event notification requirements that 
would affect a number of classes of NRC-regulated facilities and 
activities. This would include fuel cycle facilities

[[Page 6202]]

authorized to possess and use Category I quantities of SSNM, Category 
II and Category III quantities of SNM, hot cell facilities, independent 
spent fuel storage installations (ISFSIs), monitored retrievable 
storage installations (MRSs), geologic repository operations areas 
(GROAs), power reactor facilities, production reactor facilities, and 
research and test reactor facilities. This would also include 
notifications involving the transportation of Category I quantities of 
SSNM, SNF, HLW, and Category II and Category III quantities of SNM. The 
NRC is also proposing clarifying and editorial changes to these 
regulations to improve regulatory clarity and licensee implementation 
of these requirements. The security event notification requirements 
have not been updated for several years, and the NRC is taking this 
opportunity to address additional significant classes of facilities and 
activities beyond power reactors, as well as incorporating changes 
required by the final Firearms Guidelines.

III. Discussion

A. Implementation of Section 161A of the AEA

    Section 161A allows the NRC to authorize licensees and certificate 
holders to use, as part of their protective strategies, an expanded 
arsenal of weapons, including machine guns and semi-automatic, large-
capacity, assault weapons. As indicated in the October 2006 proposed 
rule, an NRC licensee or certificate holder interested in obtaining 
section 161A authority (either enhanced weapons authority and 
preemption authority or preemption authority alone) will be required to 
apply to the NRC to take advantage of this new authority. Application 
for this authority would remain voluntary. However, the firearms 
background check requirements of section 161A would become mandatory 
for certain licensees and certificate holders.
    The fingerprint-based background check by the U.S. Attorney General 
and a firearms background check against the FBI's NICS databases 
(hereinafter the ``firearms background checks'') would apply to all 
licensees and certificate holders that fall within the classes of 
facilities, radioactive material, or other property designated by the 
Commission under section 161A. The proposed Sec.  73.18(c) would 
identify the specific classes of licensee facilities, radioactive 
material, and other property designated by the Commission under section 
161A that would be eligible to apply for stand-alone preemption 
authority or for combined enhanced weapons authority and preemption 
authority. The proposed Sec.  73.19(c) would identify the specific 
classes of facilities, radioactive material, and other property 
designated by the Commission under section 161A that would be subject 
to the firearms background check requirements. In this rulemaking, the 
NRC would designate two classes of facilities as subject to the 
requirements of proposed Sec. Sec.  73.18 and 73.19: power reactor 
facilities and Category I SSNM facilities. The Commission may consider 
whether to designate additional classes of facilities, radioactive 
material, and other property in a separate future rulemaking. Although 
the October 2006 proposed rule was primarily focused on power reactor 
security requirements, the NRC expanded the scope of this proposed rule 
to also include facilities authorized to possess Category I SSNM to 
efficiently implement the provisions of section 161A for these classes 
of highest risk facilities. The NRC is continuing to follow this 
approach in this revised proposed rule to expedite the issuance of 
these regulations for these highest risk classes of facilities.
    Before granting an application to permit security personnel of an 
NRC licensee or certificate holder to transfer, receive, possess, 
transport, import, or use a weapon, ammunition, or device not 
previously authorized, the NRC must determine that the requested action 
is necessary to enable the security personnel to carry out their 
official duties associated with protecting: (1) A facility owned or 
operated by an NRC licensee or certificate holder and designated by the 
Commission; or (2) radioactive material or other property that has been 
designated by the Commission to be of significance to the common 
defense and security or public health and safety and that is owned or 
possessed by an NRC licensee or certificate holder or that is being 
transported to or from an NRC-regulated facility. Furthermore, an NRC 
licensee or certificate holder that applies to the NRC for enhanced 
weapons authority under section 161A must also comply with applicable 
ATF firearms requirements before any enhanced weapons are transferred 
to the licensee or certificate holder.
    In the October 2006 proposed rule implementing the Firearms 
Guidelines, the NRC proposed amendments to part 73 adding new 
definitions, processes for obtaining enhanced weapons, requirements for 
firearms background checks, and event notification requirements for 
stolen or lost enhanced weapons. This proposed rule continues those 
proposed changes and further impacts part 73 in four areas, as 
summarized below:
    First, the NRC is proposing substantive revisions to the following 
existing regulations in part 73:
     Section 73.2, Definitions.
     Section 73.8, Information collection requirements: OMB 
approval.
     Section 73.71, Reporting of safeguards events.
     Appendix A to part 73, U.S. Nuclear Regulatory Commission 
Offices and Classified Mailing Addresses.
     Appendix G to part 73, Reportable Safeguards Events.
    Second, the NRC is proposing adding the following new regulations 
to part 73:
     Section 73.18, Authorization for use of enhanced weapons 
and preemption of firearms laws.
     Section 73.19, Firearms background checks for armed 
security personnel.
    Third, the NRC is proposing conforming changes to the following 
existing regulations in part 73:
     Section 73.46, Fixed site physical protection systems, 
subsystems, components, and procedures.
     Section 73.55, Requirements for physical protection of 
licensed activities in nuclear power reactors against radiological 
sabotage.
     Appendix B to part 73, General Criteria for Security 
Personnel.
    Fourth, the NRC is proposing new NRC Form 754, ``Armed Security 
Personnel Firearms Background Check'' to submit the information for the 
firearms background checks required under Sec.  73.19.
    The NRC did not receive any comments on the technical content of 
this new form in response to the October 2006 proposed rule. However, 
the ATF revised the similar ATF Form 4473, ``Firearms Transaction 
Record Part I--Over-the-counter'' in August 2008. Accordingly, the NRC 
staff has reviewed the new proposed NRC Form 754 to ensure that the 
language and provisions in the NRC form are appropriately consistent 
with the ATF form. Based upon this review and ongoing discussions with 
the FBI, the NRC staff has identified that several minor changes to NRC 
Form 754 that are necessary. Accordingly, the NRC would revise proposed 
NRC Form 754 as follows:
     Revise Question 4 to only require identification of the 
State or Territory of the security individual's current duty station, 
rather than the complete address of the duty station.
     Revise Question 4 to permit the entry of multiple States 
or Territories by security personnel with multiple duty stations.
     Delete Question 13, since it is now redundant with the 
revised proposed Question 4.

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     Add appropriate clarifying, assisting, and explanatory 
note text that would be consistent with the current ATF Form 4473.
     Revise paragraph 4 in the Privacy Act Information summary 
to indicate that the submission of NRC Form 754 would be mandatory for 
certain security personnel. Finally, this proposed rule is not 
proposing changes to any of the other provisions of parts 50, 72, or 73 
that were contained in the October 2006 proposed rule.

B. Differences Between the Firearms Guidelines and the October 2006 
Proposed Rule

    The NRC has identified 14 substantive technical differences between 
the issued Firearms Guidelines and the proposed implementing text in 
the October 2006 proposed rule. Additionally, the NRC has identified 
two editorial/administrative issues that will improve the clarity of 
these implementing regulations. The NRC is not proposing any additional 
regulations to resolve technical difference number 7 but would reserve 
these actions for a future rulemaking, as necessary. A summary of these 
technical differences and the NRC's proposed solution for each issue 
follows.
    1. A new requirement was added to Sections 1, 2, and 5 of the 
Firearms Guidelines that would require firearms background checks for 
all security personnel of licensees and certificate holders who fall 
within the Commission-designated classes of facilities, radioactive 
material, and other property and who employ covered weapons as part of 
their protective strategy. The October 2006 proposed rule would only 
have required firearms background checks for the security personnel of 
licenses or certificate holders who voluntarily applied for enhanced 
weapons authority or preemption authority.
    Solution: The NRC is proposing a requirement in Sec.  73.19 on 
existing licensees and certificate holders that fall within Commission-
designated classes of facilities, radioactive material, and other 
property, and who employ covered weapons as part of their protective 
strategy, that imposes firearms background checks for security 
personnel who have, or are proposed to have, duties that require access 
to covered weapons. The NRC would designate two classes of facilities 
in this proposed rule--power reactor facilities and Category I SSNM 
facilities.
    2. In Section 5 of the Firearms Guidelines, new requirements were 
added to indicate that licensees and certificate holders in such 
designated classes who use covered weapons as part of their protective 
strategy shall begin firearms background checks for their security 
personnel within 30 days after the NRC issues a final rule designating 
these classes of facilities, radioactive material, and other property. 
Additionally, these licensees and certificate holders would be required 
to remove security personnel who have not received a satisfactory 
firearms background check from duties requiring access to covered 
weapons within 180 days of an effective final rule making these 
designations. These provisions were not addressed in the October 2006 
proposed rule.
    Solution: The NRC is proposing a requirement in Sec.  73.19 on 
existing licensees and certificate holders who fall within designated 
classes of facilities, radioactive material, and other property and 
employ covered weapons as part of their protective strategy to subject 
all of their security personnel, whose duties currently require, or 
will require, access to covered weapons, to a firearms background 
check. Affected licensees and certificate holders would have to begin 
these firearms background checks within 30 days after the effective 
date of a final rule (i.e., within 60 days after publication of a final 
rule in the Federal Register). Affected licensees and certificate 
holders would have to remove from duties requiring access to covered 
weapons any security personnel who have not completed a satisfactory 
firearms background check within 180 days after the effective date of a 
final rule (i.e., within 210 days after publication of a final rule). 
The rule would permit individuals who have been removed from duties 
requiring access to covered weapons and who subsequently receive a 
satisfactory firearms background check to be returned to duties 
requiring access to covered weapons.
    Additionally, the NRC would require applicants for licenses and 
certificates of compliance (CoC) who fall within designated classes of 
facilities, radioactive material, or other property to do the 
following: (1) Begin firearms background checks for security personnel 
whose duties will require access to covered weapons after the NRC has 
issued their respective license or CoC; and (2) complete a satisfactory 
firearms background check before these individuals have access to 
covered weapons. Future licensees and certificate holders may only 
begin firearms background checks after the NRC issues their license or 
CoC, because section 161A of the AEA does not apply to ``applicants'' 
for a license or CoC. The NRC would require completion of satisfactory 
firearms background checks before the licensee's or certificate 
holder's initial receipt of source material, special nuclear material, 
or radioactive material (i.e., the point of implementation of the 
licensee's or certificate holder's security program).
    3. In Section 5 of the Firearms Guidelines, new requirements were 
added to indicate that licensees and certificate holders in designated 
classes who use covered weapons as part of their protective strategy 
must remove from duties requiring access to covered weapons any 
security personnel who receive a ``denied'' NICS check response. During 
the 180-day implementation period, individuals who receive a 
``delayed'' NICS check response may continue their access to standard 
weapons. These provisions were not addressed in the October 2006 
proposed rule.
    Solution: The NRC is proposing a requirement in Sec.  73.19 that 
would require licensees and certificate holders who fall within 
designated classes of facilities, radioactive material, and other 
property, and employ covered weapons as part of their protective 
strategy to remove from duties requiring access to covered weapons any 
individuals who receive a ``denied'' NICS check response. During the 
180-day implementation period for existing licensees and certificate 
holders, individuals who receive a ``delayed'' NICS check response 
would be permitted to continue duties requiring access to standard 
weapons pending resolution of their ``delayed'' NICS check response. 
However, during the 180-day implementation period for existing 
licensees and certificate holders, individuals who receive a 
``delayed'' NICS check response would be required to be removed from 
duties requiring access to enhanced weapons. Individuals whose 
``delayed'' NICS check response is converted into a ``denied'' NICS 
check response (during this 180-day period) would be required to be 
removed from duties requiring access to covered weapons. Individuals 
who have been removed from duties requiring access to covered weapons 
and who subsequently complete a satisfactory firearms background check 
would be permitted to be returned to duties requiring access to covered 
weapons. As discussed in Issue 2, the 180-day implementation period 
would not apply to future licensees or certificate holders; rather, 
these applicants would be required to complete satisfactory firearms 
background checks on their security personnel before the initial 
receipt of

[[Page 6204]]

any source material, special nuclear material, or radioactive material.
    4. In Section 5 of the Firearms Guidelines, a new requirement was 
added to indicate that satisfactory completion of a firearms background 
check must be conducted before security personnel are permitted access 
to enhanced weapons. Therefore, individuals who received a ``delayed'' 
NICS check response during the 180-day transition period would not be 
permitted to continue their access to enhanced weapons during 
resolution of the ``delayed'' NICS response. However, as discussed in 
Issue 3, these individuals would be permitted continued access to 
standard weapons during this 180-day period. For licensees and 
certificate holders who already have deployed enhanced weapons under an 
authority other than section 161A,\2\ this requirement could impact 
their current ability to deploy enhanced weapons to defend their 
facility. The NRC's flexibility in this area is constrained by the 
following: (1) The language of the statute (which does not provide for 
a transition period); (2) DOJ's assertion that completion of a 
satisfactory firearms background check is a necessary prerequisite for 
both future and current access to enhanced weapons; and (3) the 
language of the Firearms Guidelines.
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    \2\ A small number of NRC licensees have previously obtained 
enhanced weapons since they are also Federal agencies or they are 
under contract to Federal agencies.
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    Solution: On May 13, 2008, the NRC issued a generic communication, 
Regulatory Issue Summary RIS-2008-10, ``Notice Regarding Forthcoming 
Federal Firearms Background Checks'' (ADAMS Accession No. ML073480158), 
to all licensees and certificate holders that might be subject to these 
firearms background check requirements. On December 22, 2008, the NRC 
issued Supplement 1 to RIS-2008-10 (ADAMS Accession No. ML082340897), 
to the same groups of licensees and certificate holders. Supplement 1 
clarified the new mandatory nature of the forthcoming firearms 
background checks. In both communications, the NRC discusses the FBI's 
Voluntary Appeal File (VAF) program wherein individuals can apply to 
the FBI to check their status under the NICS databases. This program 
permits security personnel to resolve any ``false-positive'' adverse 
records (that can create an incorrect ``delayed'' or ``denied'' NICS 
response), before the firearms background checks required by this 
proposed regulation are implemented. The FBI issues a unique personal 
identification number (UPIN) to individuals who complete the VAF 
program and receive a ``proceed'' NICS response. This UPIN can be 
included on the NRC Form 754 submitted for subsequent firearms 
background checks by security personnel and would greatly reduce the 
likelihood that the FBI's NICS databases would generate an incorrect 
``delayed'' or ``denied'' NICS response--requiring removal of the 
individual from access to enhanced weapons.
    NRC staff has discussed this issue with licensees and certificate 
holders who currently possess enhanced weapons (under an authority 
other than section 161A) so that these licensees and certificate 
holders can prepare for implementation of this new statutory 
requirement. Accordingly, the NRC proposes to include a provision in 
Sec.  73.19 that would require the removal of individuals from access 
to enhanced weapons (for licensees and certificate holders that 
currently possess enhanced weapons under an authority other than 
section 161A) if the individual receives a ``delayed'' or ``denied'' 
NICS response.
    5. In Section 5 of the Firearms Guidelines, a new requirement was 
added for periodic firearms background checks at least once every five 
years. This requirement is in conflict with the language in Sec.  
73.18(b)(2) of the October 2006 proposed rule. The proposed rule had 
indicated that no further (or recurring) firearms background checks 
would be required subsequent to the completion of an initial firearms 
background check. Additionally, no Office of Management and Budget 
(OMB) information collection burdens were identified for these 
recurring firearms background checks.
    Solution: The NRC is proposing a requirement in Sec.  73.19 for all 
licensees and certificate holders subject to firearms background checks 
to periodically complete a satisfactory firearms background check on 
security personnel whose official duties require access to covered 
weapons, after completing an initial satisfactory firearms background 
check. These periodic checks would be completed at least once every 
three years, following the initial check. Licensees and certificate 
holders would be able to perform these periodic checks more frequently 
than every three years, at the licensee's or certificate holder's 
discretion. The NRC would use a 3-year period for recurring firearms 
background checks to be consistent with the NRC's access authorization 
program background check requirements for power reactors under the 
recently revised Sec.  73.56(i)(1)(v)(B). Under that regulation, 
security personnel fall within a group of personnel that are subject to 
a criminal history records check every three years (rather than once 
every five years) to maintain their unescorted access to the reactor 
facility. Synchronizing the firearms background check with criminal 
history records checks for unescorted access could reduce licensee and 
certificate holder administrative costs. See also the ``Specific 
Questions for the Public and Stakeholder Input'' discussion on using a 
3-year or 5-year periodicity for these recurring firearms background 
checks (Section III.I of this document).
    6. In Section 5 of the Firearms Guidelines, a new restriction was 
added on the untimely submission to the FBI by an individual of his 
(her) rebuttal information to appeal an adverse firearms background 
check. An untimely submission would lead to the barring of the 
individual or abandonment of the individual's appeal of an adverse 
firearms background check. Additionally, the Firearms Guidelines 
require a licensee or certificate holder to resubmit a new NRC Form 754 
for any further consideration following an untimely submission. This 
provision is in conflict with Sec.  73.18(p) of the October 2006 
proposed rule.
    Solution: The NRC is proposing requirements that clearly present 
the consequences of an untimely submission of information concerning an 
individual's appeal of an adverse firearms background check. The rule 
also would provide for the ability of a licensee or certificate holder 
to resubmit an individual for a background check, thereby addressing 
the unintended, permanent debarment of an individual.
    7. In Section 6 of the Firearms Guidelines, a provision was added 
permitting the Commission to specify additional permissible reasons to 
remove enhanced weapons from a facility authorized to possess these 
weapons (i.e., movement of the weapons outside of the site for reasons 
other than for training on these weapons or to use the weapons in 
escorting shipments of radioactive material or other property). This 
provision was not addressed in the October 2006 proposed rule.
    Solution: The NRC is not recommending adding any additional 
authorized purposes for removing enhanced weapons from a facility 
possessing enhanced weapons at the present time. However, this 
additional flexibility is available to the Commission if it is 
necessary in the future.
    8. In Section 6 of the Firearms Guidelines, a new requirement was 
added to conduct periodic

[[Page 6205]]

accountability (i.e., inventory) requirements for enhanced weapons 
possessed by a licensee or certificate holder. These inventories must 
be completed by the licensee or certificate holder at least annually. 
These provisions were not addressed in the October 2006 proposed rule.
    Solution: The NRC is proposing requirements for licensees and 
certificate holders to conduct two types of periodic inventories for 
any enhanced weapons possessed by the licensee or certificate holder. 
The first type of inventory would be conducted monthly and would verify 
the number of enhanced weapons present at the licensee's or certificate 
holder's facilities (i.e., a ``piece-count'' inventory). The licensee 
or certificate holder may use electronic technology (e.g., bar codes on 
weapons) to conduct this inventory. The monthly inventories would not 
include weapons that are stored in locked containers which are sealed 
with a high-integrity, tamper-indicating device (TID) (e.g., ``ready-
service'' in-plant storage containers). The second type of inventory 
would be conducted every six months and would verify the serial number 
of all enhanced weapons possessed by the licensee or certificate 
holder. The six-month inventory would include a verification of any 
weapons that are stored in a locked and TID-sealed storage container. 
Both types of inventories would be conducted by teams of two 
individuals who have completed a satisfactory firearms background check 
to prevent a single individual from manipulating the inventory results 
and thus obscuring the potential theft or loss of such weapons. The NRC 
is proposing that these inventories be conducted more frequently than 
the minimum requirement of the Firearms Guidelines to ensure that 
stolen or lost weapons do not create an unacceptable security risk for 
the facility or hazard for local law enforcement in the communities 
surrounding the licensee's or certificate holder's facility.
    9. In Section 6 of the Firearms Guidelines, a new requirement was 
added to specify that a licensee or certificate holder possessing 
enhanced weapons must notify the NRC and local law enforcement 
authorities of the theft or loss of any enhanced weapon (i.e., weapons 
registered under the National Firearms Act (NFA) (see 26 U.S.C. 5841)). 
This requirement was added due to DOJ's view that NRC licensees and 
certificate holders possessing enhanced weapons under section 161A are 
not required to obtain a Federal firearms license (FFL) under ATF's 
regulations. Federal firearms licensees are required to notify local 
law enforcement officials of stolen or lost weapons. Independent of the 
NRC's proposed requirements, licensees and certificate holders who 
possess enhanced weapons are required under ATF's regulations in 27 CFR 
479.141 to immediately notify ATF of any stolen or lost weapons that 
are registered under the NFA.
    Solution: The NRC is proposing a requirement that licensees and 
certificate holders must notify local law enforcement authorities 
within 48 hours of notifying ATF of the theft or loss of an enhanced 
weapon. The NRC is also proposing that licensees or certificate holders 
must notify the NRC as follows; (1) Within four hours of notifying ATF, 
(for an enhanced weapon that is discovered to be stolen or lost outside 
the licensee's or certificate holder's protected area); and (2) within 
one hour of discovery (for an enhanced weapon that is discovered to be 
stolen or lost inside the licensee's or certificate holder's protected 
area). The shorter notification time to the NRC would be required when 
a theft or loss of an enhanced weapon occurs inside the facility's 
protected area, vital area, material access area, or controlled access 
area, because those weapons could potentially affect the security of 
the facility. The NRC views enhanced weapons stolen or lost outside of 
a facility as primarily a law-enforcement issue, rather than a facility 
security issue.
    The NRC proposes to consolidate these new event notification 
requirements for licensees and certificate holders into Sec.  73.71(g). 
Additionally, in the October 2006 proposed rule the NRC added a new 
provision under Appendix G to part 73, paragraph III(a)(3) regarding 
security notifications to be made to the NRC subsequent to a licensee's 
or certificate holder's notifications made to other State or Federal 
agencies for law-enforcement or regulatory purposes. The provision for 
notification of the NRC following notifications to Federal law 
enforcement agencies would now be located in part 73, Appendix G, 
paragraph II(d)(1).
    10. In Section 6 of the Firearms Guidelines, a new requirement was 
added on the transport of enhanced weapons. Specifically, when these 
weapons are not being used to escort shipments of radioactive material 
or other property, they must be unloaded and locked in a secure 
container during their transport. Weapons and ammunition may be 
transported in the same container. This provision was not addressed in 
the October 2006 proposed rule.
    Solution: The NRC is proposing to add requirements that enhanced 
weapons being transported to or from the licensee's or certificate 
holder's facility must be unloaded and locked in a secure container. 
The rule would permit weapons and their ammunition to be transported in 
the same secure container. This requirement would not apply to enhanced 
weapons being used in the course of escorting shipments of radioactive 
material or other property. Under those circumstances, the enhanced 
weapons would be required to be maintained in a State of loaded 
readiness and to be immediately accessible to security personnel (i.e., 
ready for immediate use in defending the shipment), except when 
prohibited by 18 U.S.C. 922(q).
    11. In Section 6 of the Firearms Guidelines, a new requirement was 
added requiring licensees and certificate holders possessing enhanced 
weapons to keep records on the receipt, transfer, and transportation of 
these enhanced weapons. This provision was not addressed in the October 
2006 proposed rule, based on the presumption that licensees and 
certificate holders would be required to comply with the recordkeeping 
requirements for the holder of an ATF FFL. However, as discussed in 
Issue 9 of this section, DOJ does not view an ATF FFL to be required 
for those possessing weapons under section 161A.
    Solution: The NRC is proposing to add requirements that records be 
kept on the receipt and transfer of enhanced weapons that would include 
the following information: Date of receipt or date of shipment of the 
weapon; the name and address of the transferor or the name and address 
of the transferee; name of the manufacturer or importer; and the model, 
serial number, type, and caliber or gauge of the weapon. Records 
requirements also would be added regarding the transportation of 
enhanced weapons (away from the licensee's or certificate holder's 
facility), including: Date of departure and date of return; the purpose 
of the enhanced weapon's transportation; the name of the person 
transporting the enhanced weapon and the name of the person/facility to 
whom the enhanced weapon is being transported; and the model, serial 
number, type, and caliber or gauge of the enhanced weapon.
    12. In Section 7 of the Firearms Guidelines, a new requirement was 
added providing for the termination, modification, suspension, or 
revocation of a licensee's or certificate holder's authority under 
section 161A of the AEA. A requirement for the NRC to notify ATF of 
these types of actions was

[[Page 6206]]

also added. Furthermore, a process for re-application for section 161A 
authority was also added. These provisions were not addressed in the 
October 2006 proposed rule.
    Solution: The NRC is proposing a requirement that the NRC provide 
timely notification to ATF regarding the termination, modification, 
suspension, or revocation of a licensee's or certificate holder's 
section 161A authority. A process would be specified for terminating, 
modifying, suspending, or revoking a licensee's or certificate holder's 
section 161A authority as well as their re-application for such 
authority following a termination, suspension, or revocation.
    13. In Section 8 of the Firearms Guidelines, new definitions were 
added. These definitions are not consistent with the October 2006 
proposed rule's new definition in Sec.  73.2 for the term: Enhanced 
weapons. Additionally, new definitions were not included in Sec.  73.2 
for the terms: Firearms background check, NICS check, NICS response, 
and Satisfactory firearms background check.
    Solution: The NRC is proposing to revise the definitions in Sec.  
73.2 to match the definitions contained in the issued Firearms 
Guidelines.
    14. In Section 8 of the Firearms Guidelines, cross references were 
added to ATF and FBI current regulations for certain weapons terms and 
NICS terms, rather than replicating these terms directly in the 
Firearms Guidelines. These provisions were not addressed in the October 
2006 proposed rule.
    Solution: The NRC is proposing to add cross references in Sec.  
73.2 that would point to the relevant definitions under ATF and FBI 
regulations, rather than fully replicating these ATF and FBI terms in 
Sec.  73.2.
    In addition to these 14 technical issues, the NRC would address 2 
administrative issues raised in the October 2006 proposed rule as 
follows:
    15. As originally developed by the NRC staff, the order of 
presentation of the new regulations implementing the Firearms 
Guidelines first presented the requirements on firearms background 
checks and then identified the classes of licensee or certificate 
holders to whom these provisions and the provisions for obtaining 
enhanced weapons and preemption authority or preemption authority alone 
would apply. Based on input from stakeholders and discussions within 
the NRC staff, the NRC recognizes that this order of presentation is 
not logical and does not support agency regulatory clarity objectives.
    Solution: The NRC is proposing to switch the order of presentation 
in these regulations implementing the Firearms Guidelines. Accordingly, 
the NRC would switch the contents of the two sections implementing this 
new authority. First, revised Sec.  73.18 would identify the classes of 
facilities designated by the Commission under section 161A authority 
that are appropriate for the voluntary stand-alone preemption authority 
or combined enhanced weapons authority and preemption authority and 
present the requirements for licensees and certificate holders 
obtaining enhanced weapons or preemption authority. Second, revised 
Sec.  73.19 would identify the classes of facilities designated by the 
Commission under section 161A authority that are appropriate for the 
mandatory firearms background checks and present the requirements for 
these firearms background checks.
    16. In the information collection requirements of Sec.  73.8 of the 
October 2006 proposed rule, a place holder was added for the OMB 
control number (for Paperwork Reduction Act purposes) regarding the 
FBI's current fingerprint Form (FBI Form FD-258). OMB has subsequently 
issued a new control number (0110-0046) to the FBI for FBI Form FD-258.
    Solution: The NRC is proposing to add the approved OMB control 
number for FBI Form FD-258 to Sec.  73.8 and to reference Sec.  73.19 
as one of the sections in part 73 where this burden is required (see 
also issue 15 of this section).
    The NRC is also proposing to specify the proposed OMB control 
number (i.e., 3150-0204) for NRC Form 754 in Sec.  73.8.

C. Application of Section 161A Authority to Additional Classes of NRC-
Regulated Facilities and Radioactive Material

    In the October 2006 proposed rule, the NRC had proposed designating 
only two classes of NRC-regulated facilities as appropriate for the 
authority of section 161A of the AEA at that time--power reactor 
facilities and Category I SSNM facilities. The NRC had taken this 
approach to focus on the highest risk facilities and had indicated that 
additional classes of facilities and radioactive material would be 
considered in future rulemakings. The NRC intends to continue this 
approach; and therefore the scope implementing section 161A authority 
in this rulemaking will be limited to these two classes of facilities. 
However, the NRC may also propose designating additional classes of 
facilities and radioactive material in a separate future rulemaking.

D. Transfer of Enhanced Weapons

    During development of the Firearms Guidelines, NRC, DOJ, and ATF 
staffs discussed the circumstances under which a licensee's or 
certificate holder's issuance of an enhanced weapon to a security 
individual would not be considered a ``transfer'' of an enhanced weapon 
under ATF's current regulations (e.g., the issuance of an enhanced 
weapon to an authorized security individual for their duty shift, for 
escort of a shipment of radioactive material, or for training 
purposes). Defining a transaction involving a weapon as a ``transfer'' 
under ATF's regulations incurs a number of additional obligations, and 
the NRC was concerned that an unnecessarily broad classification of 
``transfers'' would result in serious impacts on routine, day-to-day 
security activities involving enhanced weapons.
    For example, by definition, ATF regulations require that any 
``transfer'' of enhanced weapons (i.e., weapons registered with ATF 
under the NFA (26 U.S.C. chapter 53) (see 26 U.S.C. 5841, 
``Registration of Firearms'')), be reviewed and approved by ATF staff 
in advance of any such transfers (see 26 U.S.C. 5812). The NRC has been 
informed that the ATF's typical review process to transfer a weapon 
registered under the NFA can take a month or more in normal 
circumstances. If daily issuances of enhanced weapons to security 
personnel at nuclear power plants were considered ``transfers'' under 
ATF's regulations, these activities would then require prior ATF 
approval. Further, each weapons transfer under the NFA would also 
trigger tax implications under ATF regulations. This issue was not 
addressed in the October 2006 proposed rule.
    Following discussions between the NRC, DOJ, and ATF staffs 
regarding NRC's concerns with the transfer issue, the ATF provided a 
legal opinion to the NRC's Office of the General Counsel on potential 
circumstances that would or would not constitute the transfer of an 
enhanced weapon and thus require prior ATF approval (see letter from 
ATF listed in Section IX, ``Availability of Documents,'' of this 
document). As described in the opinion, ATF concluded that ATF's 
transfer requirements under 27 CFR part 479, ``Machine Guns, 
Destructive Devices, and Certain Other Firearms,'' would not apply in 
certain circumstances. Based on this guidance from ATF, the NRC is 
proposing language in Sec.  73.18(m) that would clarify when the 
issuance of an enhanced weapon to security personnel of licensee's and 
certificate holder's

[[Page 6207]]

authorized to possess such weapons is, or is not, considered a weapons 
transfer under the NFA.
    ATF's letter indicates that the issuance of enhanced weapons by a 
licensee or certificate holder to security personnel for the 
performance of their official duties does not constitute a transfer in 
three instances:
     When the enhanced weapons are issued to security personnel 
who are employees of the licensee or certificate holder or who are 
employees of a security contractor providing security services to the 
licensee or certificate holder and their official duties are ``at the 
site'' of an NRC-approved facility;
     When the enhanced weapons are issued to security personnel 
who are employees of the licensee or certificate holder and their 
official duties are ``beyond the site'' of an NRC-approved facility; or
     When the enhanced weapons are issued to security personnel 
who are employees of a security contractor providing security services 
to the licensee or certificate holder and their official duties are 
``beyond the site'' of an NRC-approved facility, if authorized licensee 
employees are present to oversee the activities.
    The NRC is proposing that the limit of ``at the site'' would 
include all areas of an authorized facility located within the ``site 
boundary,'' where the ``site boundary'' is defined in the facility's 
safety analysis report. Absent the presence of licensee personnel 
overseeing the contractor security personnel possessing enhanced 
weapons, when enhanced weapons are taken beyond the site boundary, ATF 
has indicated that unless licensee personnel are present to maintain 
``constructive possession'' of the enhanced weapons, such actions are 
considered a transfer of an enhanced weapon. Without prior ATF approval 
of a transfer, such an action would be a violation of 26 U.S.C. 5812 
and 5841. Licensee personnel overseeing the use of enhanced weapons 
beyond the site boundary would need to have completed a satisfactory 
firearms background check and would need to be trained on the 
accountability and notification requirements for enhanced weapons. 
However, such personnel would not have to be fully trained and 
qualified to use the enhanced weapons.
    As discussed in Technical Difference 7 (Section III, 
``Discussion,'' of this document), the licensee's or certificate 
holder's issuance of an enhanced weapon to security personnel for their 
official duties beyond the site boundary would only be authorized for: 
(1) Training at facilities designated in the licensee's or certificate 
holder's training and qualification plan; and (2) escorting shipments 
of Commission-designated radioactive material and other property. ATF's 
transfer requirements would apply in all other circumstances where 
enhanced weapons are taken beyond the site boundary by employee or 
contractor personnel (e.g., the sale or relocation of an enhanced 
weapon to another NRC licensee or certificate holder, the repair of an 
enhanced weapon at an offsite armorer or the manufacturer, or the use 
of an enhanced weapon at a shooting competition that is located away 
from the licensee's or certificate holder's training facility specified 
in the NRC-approved training and qualification plan).

E. NRC Form 754

    One comment on the information collection burden was received from 
the October 2006 proposed rule that bears on Sec.  73.19 and the 
proposed NRC Form 754. The NRC has addressed this issue in comment F.2 
(see Section IV, ``Resolution of Public Comments on the October 2006 
Proposed Rule,'' of this document). The NRC would make minor changes to 
the assisting and explanatory notes text of proposed NRC Form 754 to 
make the NRC's form consistent with similar ATF Form 4473 that was 
revised in August 2008. Separately, the NRC would revise Question 4 on 
Form 754 to require only the identification of the State or Territory 
where the security individual's duty station exists, rather than the 
complete address of the duty station, as this is unnecessary. 
Additionally, the NRC would require the security personnel to enter 
multiple States or Territories for instances where the security 
personnel routinely serves at multiple duty stations that are located 
in different States or Territories. The NRC would also delete Question 
13 (State of Residence) on proposed NRC Form 754 since this information 
is redundant to the information provided under the proposed Question 3 
(Current Residence Address). Furthermore, the NRC would revise 
paragraph 4 in the Privacy Act Information summary (page 3 of the form) 
to indicate that the submission of NRC Form 754 would be mandatory for 
certain security personnel.
    The FBI staff has indicated to the NRC that a firearms background 
check is only valid for the States or Territories identified on the NRC 
Form 754. Consequently, the duty station's State or Territory 
information is necessary for the FBI to conduct the firearms background 
check against a specific State's or Territory's firearms restrictions. 
Therefore, if security personnel are moved to a different duty station 
in a different State or Territory or if the security individual 
conducts firearms training at a facility in a different State or 
Territory, then the individual's firearms background check must be 
recompleted against all applicable States and Territories to ensure the 
individual is not disqualified under a particular State's or 
Territory's laws. This would also permit licensees to move security 
personnel to a different facility to support an outage (for example, to 
a reactor that is located in a different State but is part of a larger 
fleet of reactors within a single utility) or to use a central training 
facility and firing range that is capable of handling large-caliber 
automatic weapons.

F. Definitions

    The NRC would add several new definitions to Sec.  73.2 as 
conforming changes to the new enhanced weapons and firearms background 
check provisions in Sec. Sec.  73.18 and 73.19 and to the revised event 
notification provisions in Sec.  73.71 and Appendix G to part 73. As a 
conforming change to the event notification provisions, the NRC would 
add new definitions to Sec.  73.2 for SNF and HLW. The current 
definitions for SNF and HLW that are found in the NRC's regulations in 
parts 63, 72, and in Section 2 of the Nuclear Waste Policy Act of 1982, 
as amended (NWPA), have slight differences. Accordingly, the NRC would 
add definitions for SNF and HLW to Sec.  73.2 to support the proposed 
changes to the event notification requirements regarding shipments of 
SNF and HLW. These definitions would also support changes to 
transportation security and shipment advance notification requirements 
in a separate future rulemaking.

G. Changes to Safeguards Event Notifications

    In the October 2006 proposed rule, the NRC had proposed several 
changes to the safeguards event notification requirements in part 73. 
These requirements are located in Sec.  73.71 and in Appendix G to part 
73. In this proposed rule, the NRC would retain notification 
requirements to address imminent attacks or threats against power 
reactors as well as suspicious events that could be indicative of 
potential reconnaissance, surveillance, or challenges to security 
systems. Additionally, based upon further review of the need for these 
requirements to accomplish the agency's strategic communication 
missions, the NRC would expand the applicability of these proposed 
regulations to include Category I SSNM facilities as well as the

[[Page 6208]]

transportation of SNF, HLW, and Category I SSNM. The NRC believes these 
types of facilities and activities pose a potential for a significant 
level of risk to the public and therefore require an equivalent level 
of security event notifications. Based upon the nature of the 
stakeholder comments received on the proposed 15-minute ``imminent 
attack'' notification requirement, the NRC recognizes that the basis 
for this requirement (i.e., the accomplishment of the NRC's strategic 
communications missions) requires further clarification.
    Accordingly, while the NRC agrees it would not respond to a 
licensee's 15-minute notification with NRC resources to defeat an 
imminent or actual threat, the NRC has two strategic communications 
missions to execute in response to reports of imminent or actual 
hostile acts that are independent of the affected licensee. First, the 
NRC has a strategic mission to immediately communicate such hostile act 
information to the Department of Homeland Security (DHS) operations 
center under the National Response Framework. DHS has responsibility 
for rapidly communicating (i.e., retransmitting) this information to 
other parts of the government (e.g., national leaders and key military, 
homeland security, and critical infrastructure communication centers). 
Second, the NRC also has a strategic mission to immediately communicate 
hostile act information to other appropriate NRC licensees and 
certificate holders so that they can increase their security posture at 
their facilities or for their shipments of SNF, HLW, or Category I 
SSNM. This prompt notification could be vital in increasing licensees' 
ability to defend against a multiple-site attack and to protect the 
lives of security and plant personnel at a second facility. This 
rationale extends to other government or critical infrastructure 
facilities for defense against multiple-sector attacks. During the 
terrorist attacks of September 11, 2001, the United States saw that its 
adversaries can simultaneously attack multiple sectors of our critical 
national infrastructure (i.e., financial, military, and governmental 
sectors were attacked).
    Consequently, prompt notification to the NRC may permit NRC 
licensees and certificate holders or other government facilities or 
components of the critical national infrastructure (who receive timely 
notification of an attack or threat elsewhere) to shift their security 
defensive posture, thereby increasing the likelihood that the defensive 
forces would defeat a terrorist attack. Accordingly, the NRC views the 
licensee's 15-minute ``imminent attack'' notifications as providing the 
NRC the necessary information to permit the NRC to accomplish its 
strategic communication missions.
    The NRC would retain the proposed requirement for a licensee to 
establish a continuous communications channel with the NRC subsequent 
the licensee's initial transmission of an abbreviated set of 
information to the NRC, and thereby reduce the immediate impact on 
licensee personnel. The NRC proposes that licensees establish a 
continuous communications channel (if requested by the NRC following 
the initial 15-minute attack or threat notification) after the licensee 
has completed any required emergency plan notifications, required 
notifications or requests for assistance to local law enforcement 
officials, or 60 minutes have elapsed since event discovery. Licensees 
are required under the current Sec.  73.71 to establish a continuous 
communications channel, if requested by the NRC, following both 
facility and transportation one-hour security event notifications.
    For enhanced weapons that are stolen or lost, the NRC would add a 
notification requirement to Sec.  73.71 to notify the NRC and local law 
enforcement officials. The NRC is also proposing to add a separate 
requirement to notify the NRC if a licensee possessing enhanced weapons 
receives an adverse inspection finding from ATF (regarding the enhanced 
weapons). The NRC is proposing this second notification requirement to 
enable the NRC to respond to any press or public inquires following ATF 
action.
    The NRC is proposing to make changes to the security event 
notification requirements that would affect a number of classes of NRC-
regulated facilities and activities. This would include fuel cycle 
facilities authorized to possess and use Category I quantities of SSNM, 
Category II and Category III quantities of SNM, hot cell facilities, 
ISFSIs, MRSs, GROAs, power reactor facilities, production reactor 
facilities, and research and test reactor facilities. This would also 
include notifications involving the transportation of Category I 
quantities of SSNM, SNF, HLW, and Category II and Category III 
quantities of SNM.
    The NRC also is proposing to make several editorial and 
organizational changes to Sec.  73.71 and Appendix G to part 73 to 
provide a prioritized, graded, and parallel structure that applies to 
both licensees and certificate holders. The new structure would 
accomplish the following: (1) Provide increased regulatory clarity; and 
(2) avoid confusion regarding the applicability of individual 
provisions of Sec.  73.71 and Appendix G to part 73 to certificate 
holders, given the current language in Sec. Sec.  76.113, 76.115, and 
76.117. The NRC would also group notifications under common time 
limits, as is currently done in Sec.  50.72. The NRC also would 
incorporate changes made in response to comments to provide increased 
differentiation between required event notifications versus the 
safeguards event log, to facilitate the retraction of non-valid 
notifications, and to provide additional clarity on tampering events. 
The NRC would also add clarifying language to Sec.  73.71 and Appendix 
A to part 73 to address non-reactor facilities that are required to 
make classified security event notifications.
    The NRC views the long-term imposition of ``voluntary 
notifications'' for security events as inconsistent with the agency's 
strategic goals of long-term regulatory stability and fostering 
transparency and public involvement in developing and imposing 
regulatory requirements. Accordingly, some event notifications that 
were originally issued to licensees and certificate holders following 
the events of September 11, 2001 (via NRC bulletins and advisories) 
would be incorporated into the regulations in Sec.  73.71 and Appendix 
G rather than continuing as ``voluntary notification.'' This concept 
remains unchanged from the NRC's approach taken in the October 2006 
proposed rule.
    Additionally, the NRC would continue with the proposed removal of 
the word ``credible'' from the term ``credible threats'' reported under 
proposed Appendix G, Paragraph 1(a). The NRC maintains that only the 
NRC, the intelligence community, and law enforcement agencies should 
determine whether a threat is credible. This function should not rest 
with the licensee or certificate holder. Licensees and certificate 
holders would not have access to classified threat indicators or 
intelligence information; therefore, a licensee or certificate holder 
decision on the credibility of a specific event might be incorrect or 
incomplete.
    Additionally, the NRC is proposing to add security event reporting 
and recording requirements related to certain cyber security issues at 
nuclear power reactor facilities. The NRC is proposing the additions 
because cyber security events reporting and recording requirements were 
not included in the NRC's recent final rule that added Sec.  73.54 to 
the NRC's regulations (74 FR 13925; March 27, 2009). Section 73.54 
requires power reactor licensees to establish and maintain a cyber 
security program at their facilities to provide

[[Page 6209]]

high assurance that digital computer, communication systems, and 
networks are adequately protected against cyber attacks, up to and 
including the design basis threat as described in Sec.  73.1. The 
proposed additions would be added to the security event notification 
provisions of Sec.  73.71 and Appendix G to part 73.

H. Conforming Changes to Category I SSNM Facility, Power Reactor 
Facility, and Training and Qualification Security Requirements

    The NRC is proposing to make two conforming changes to the security 
requirements for Category I SSNM facilities and power reactor 
facilities to increase regulatory clarity. The NRC would add a new 
paragraph (b)(13) to Sec.  73.46 and a new paragraph (b)(12) to Sec.  
73.55 that would provide a cross reference to the firearms background 
check requirements of Sec.  73.19. Additionally, the NRC would add 
clarifying implementation language to these two new paragraphs to 
address the allowable time for future licensees to satisfactorily 
complete firearms background check requirements on armed security 
personnel (i.e., licenses issued by the NRC after the implementation 
date specified in the proposed Sec.  73.19(b)(4)). The NRC is proposing 
this implementation language because applicants for a license are not 
authorized under section 161A of the AEA to submit firearms background 
checks to the NRC until after the NRC issues a license and thus Sec.  
73.19(b)(4) would require immediate compliance upon issuance of a 
license, (as the implementation date will have already passed). 
Accordingly, the NRC is proposing a 6-month implementation period for 
any future licensees to satisfactorily complete these firearms 
background checks. This implementation period is the same as is 
proposed for current licensees under Sec.  73.19.
    The NRC is also proposing to make a conforming change to the 
requirements of Appendix B to part 73, Section I.A, ``Employment 
Suitability,'' to update the suitability language on felony convictions 
restrictions for unarmed security personnel and the 18 U.S.C. 922 
restrictions on armed security personnel. This proposed language is the 
same as the language used in the final rule issued on March 27, 2009 
(74 FR 13925), ``Power Reactor Security Requirements,'' under VI.B.1 to 
Appendix B to part 73--General Criteria for Security Personnel (see 74 
FR 13988).

I. Specific Questions for Public and Stakeholder Input

    The NRC is seeking specific input from the public and stakeholders 
on the proposed solution to Issue 5 discussed previously. Issue 5 
involves the requirement for designated licensees and certificate 
holders to complete a periodic firearms background check on security 
personnel whose official duties require access to covered weapons. The 
Firearms Guidelines require that a satisfactory firearms background 
check be completed for security personnel at least once every five 
years. The NRC is proposing that these checks be conducted at least 
once every three years and that licensees and certificate holders can 
conduct these checks more frequently, if they desire. The NRC is 
proposing this approach to reduce licensee and certificate holder costs 
by permitting licensees and certificate holders to submit a single set 
of fingerprints to accomplish the periodic firearms background checks 
and periodic criminal history records checks that support access 
authorization and personnel security clearance processes. For example, 
fingerprints for security personnel at power reactors are currently 
submitted to the NRC every three years as part of the licensee's access 
authorization program, as required by Sec.  73.56(i)(1)(v)(B) for power 
reactors.
    An alternative approach would be to require firearm background 
checks at least once every five years and let licensees and certificate 
holders choose how they will coordinate and/or control these checks 
with other required fingerprint checks (e.g., the access authorization 
program under Sec.  73.56 for power reactors). The Firearms Guidelines 
allow the NRC some flexibility in developing the requirements for the 
background checks. Therefore, the NRC is seeking stakeholder comments 
on the following three questions:
    A. Is it appropriate to require a 3-year periodicity for recurring 
firearms background checks? (Note: Consistent with the periodicity of 
access authorization program recurring fingerprint checks for armed 
security personnel.)
    B. Or, is it appropriate to require a 5-year periodicity for 
recurring firearms background checks, keeping in mind that the Firearms 
Guidelines require no less than 5 years?
    C. If not 3 years or 5 years, what is an appropriate periodicity 
for recurring firearms background checks, keeping in mind that the 
Firearms Guidelines require no less than 5 years?
    The NRC is also seeking public and stakeholder input on questions 
related to the periodic inventory requirements for enhanced weapons 
that are set forth in the proposed Sec.  73.18(o). Specifically, these 
proposed regulations would not require monthly accountability 
inventories of enhanced weapons that the licensee or certificate holder 
stores in a locked secure weapons container that is: (1) Physically 
located within the protected area, vital area, or material storage area 
of a facility; and (2) is sealed with a high-integrity TID.
    In such cases, only the verification of the intact TID on the 
weapon containers would be required during the monthly inventory. 
However, for the semi-annual accountability inventories, licensees and 
certificate holders would be required to physically verify the serial 
number of each enhanced weapon they possess by removing the TID and 
verifying the weapon(s) serial number.
    D. Are semi-annual accountability inventories an appropriate 
periodicity for inventories that would physically verify the serial 
number of each enhanced weapon possessed by a licensee or certificate 
holder? If not, what is an appropriate periodicity for such 
inventories?
    Finally, the NRC is seeking public and stakeholder input on the 
question of whether the proposed security event notification 
regulations (currently consisting of Sec.  73.71 and Appendix G to part 
73) should be consolidated into a single section or into a series of 
three adjacent sections (e.g., separate sections on telephonic 
notifications, written follow-up reports, and safeguards event logs) 
that would be similar in concept to the structure of Sec. Sec.  50.72 
and 50.73. The NRC is concerned that continuing to locate security 
event reporting and recording requirements in separate portions of part 
73 may reduce the regulatory clarity and ease of use of these 
regulations. Therefore, the NRC is seeking stakeholder comments on the 
following two questions and may implement these actions in a final 
rule, without further opportunity for comment:
    E. Should the requirements for reporting and recording security 
events be consolidated into a single section of part 73?
    F. Should the requirements for reporting and recording security 
events be located in a series of three adjacent sections of part 73 
(e.g., telephonic notifications, written follow-up reports, and 
safeguards event log)?

[[Page 6210]]

IV. Resolution of Public Comments on the October 2006 Proposed Rule

    On October 26, 2006 (71 FR 62663), the NRC published a proposed 
rule and requested public comments. Forty-eight comment letters were 
received on the October 2006 proposed rule, and 16 of these letters 
included comments on the proposed rule relating to the Firearms 
Guidelines and event notification provisions. Of these 16 comment 
letters, one was from a State, three were from the public, and the 
remaining 12 letters were from NRC licensees and the Nuclear Energy 
Institute. The comment letters provided various points of view and 
suggestions for clarifications, additions, and deletions. Copies of 
these letters are available for public inspection and copying for a fee 
at the NRC's PDR at 11555 Rockville Pike, Rockville, MD 20852. Copies 
of these letters may also be viewed and downloaded from the Federal 
eRulemaking Web site http://www.regulations.gov, docket number NRC-
2006-0016.
    The NRC also requested comments on six specific questions, one of 
which involved the event notification provisions. No specific questions 
were asked on the Firearms Guidelines provisions. In the specific 
question the NRC asked, ``For the types of events covered by the 
proposed four-hour notification requirements in Sec.  73.71 and 
Appendix G to part 73, should the notification time interval for some 
or all of these notifications be different (e.g., a 1-hour, 2-hour, 8-
hour, 24-hour notification)? If so, which 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. 
No commenters responded to this specific question.
    The NRC also requested comments on the information collection 
burden associated with the October 2006 proposed rule and asked four 
specific questions. One commenter responded to each of these four 
questions.
    There was a range of stakeholder views concerning the Firearms 
Guidelines and event notification provisions of the 2006 proposed 
rulemaking. However, most commenters supported the enhanced weapons and 
firearms background check provisions and only requested clarifying 
changes. There were some commenters who requested more rigorous 
provisions for the use of enhanced weapons, and some who objected 
strongly to provisions regarding event notification requirements. Some 
stakeholders viewed the 2006 proposed rulemaking as an effort to 
``codify'' the ``insufficient status quo'' while others described the 
new requirements as going well beyond the post-September 11, 2001 
security order requirements previously imposed by the Commission.
    The Commission believes that commenters who suggested that the 
Commission had no basis to go beyond the requirements that were imposed 
by the security orders misunderstood the relationship of those security 
orders and the October 2006 proposed rulemaking. The security orders 
were issued based on the specific knowledge and threat environment 
information available to the Commission at the time the orders were 
issued. The Commission advised licensees who received those orders that 
the requirements were interim and that the Commission would eventually 
undertake a more comprehensive re-evaluation of current safeguards and 
security programs. The objectives of the October 2006 proposed rule 
went beyond simply making generically applicable security requirements 
similar to those that were imposed by Commission orders. The Commission 
intended to implement requirements informed by its review of site 
security plans, its experience with the implementation of the enhanced 
baseline inspection program, and its evaluation of force-on-force 
exercises. Accordingly, the Commission will apply insight gained from 
these actions to any new requirements proposed for event notifications 
in this proposed rulemaking.
    Responses to specific comments are presented as follows.

A. General Issues

    Comment A.1: One commenter indicated that concussive type devices 
(a.k.a., flash bangs) should be covered by this rule as a significant 
addition to the armed responders' available equipment (i.e., the use of 
flash bangs would significantly increase security personnel's 
capabilities).
    Response: The NRC disagrees. Section 161A of the AEA does not 
authorize NRC licensees and certificate holders to possess destructive 
devices as they are defined under section 5845 of the NFA (26 U.S.C. 
5845). It is the NRC's understanding, however, that some flash bang 
devices are not prohibited because they are not considered destructive 
devices. Therefore, it is possible that some licensees and certificate 
holders currently may possess flash bang devices that are not 
classified as destructive devices under the NFA. However, if a flash 
bang device is classified as a destructive device under the NFA, NRC 
licensees and certificate holders in general would not be authorized to 
possess them. Information on whether or not a particular flash bang 
device is considered a destructive device should be obtained from its 
ATF-licensed manufacturer or importer.
    Under the proposed requirement, if a specific type of flash bang 
device is not classified as a destructive device, but its possession is 
restricted under applicable State or local law (applicable to the 
licensee's or certificate holder's locale), then licensees and 
certificate holders who apply for and are approved for preemption 
authority would be able to possess these devices notwithstanding any 
State or local restrictions.
    Comment A.2: One commenter asked if stakeholders would have an 
opportunity to comment on the Firearms Guidelines before they are 
published in the Federal Register.
    Response: Section 161A.d of the AEA required the NRC to develop the 
Firearms Guidelines and obtain the approval of the U.S. Attorney 
General before issuance. To meet this requirement, the NRC, DOJ, FBI, 
and ATF staff, worked jointly to develop guidelines that were approved 
by the U.S. Attorney General and which provide direction to these 
agencies on implementing section 161A of the AEA. An opportunity for 
public comment on the Firearms Guidelines was not provided before its 
publication in the Federal Register on September 11, 2009.
    Comment A.3: One commenter asked if the enhanced weapons provisions 
of the proposed rule were mandatory or voluntary.
    Response: A licensee and certificate holder application for section 
161A authority (either combined enhanced weapons authority and 
preemption authority or stand-alone preemption authority) is voluntary. 
However, the firearms background check requirements will be mandatory 
for affected licensees and certificate holders (those that are within 
the Commission-designated classes of facilities listed in Sec.  
73.19(c)). Licensees and certificate holders who apply for section 161A 
authority and receive approval from the NRC must comply with the 
applicable requirements of Sec. Sec.  73.18, 73.19, and 73.71.
    Comment A.4: One commenter asked if the rule would permit licensees 
to use enhanced weapons as a substitute for uniformed guards or other 
weapons.
    Response: The NRC recognizes that the increased defensive firepower 
from enhanced weapons may permit a licensee or certificate holder to 
adjust its protective strategy and thereby reduce

[[Page 6211]]

the size of its protective force. However, to obtain enhanced weapons, 
the licensee or certificate holder must submit updated security plans 
and contingency response plans to the NRC for review and approval. 
Consequently, the NRC will have the opportunity to evaluate and approve 
the level of defensive firepower and personnel appropriate for a 
specific site.
    Comment A5: One commenter asked what, in the NRC's view, would be 
the incentive for licensees to obtain and use enhanced weapons, given 
the increased costs to obtain and deploy such weapons?
    Response: The decision to employ enhanced weapons is essentially a 
business decision to be made on a site-specific basis by each licensee 
or certificate holder subject to this regulation. It is not the place 
of the NRC to advise such regulated entities on business decisions. 
However, from a purely tactical security viewpoint, the fundamental 
incentive for a licensee or certificate holder to obtain enhanced 
weapons is to increase its defensive capability to provide high 
assurance that the public health and safety and the common defense and 
security will be adequately protected from attempted radiological 
sabotage at reactor facilities or from the attempted theft or diversion 
of Category I SSNM at Category I SSNM facilities. Many of the weapons 
that would be accessible to licensees and certificate holders under 
this rule are considered to be ``force multipliers.'' The increased 
firepower from these weapons would permit a single security individual 
to deliver more rounds on target in a shorter period of time, thereby 
increasing the likelihood that an adversary would be neutralized.
    Because obtaining enhanced weapons is voluntary, licensees and 
certificate holders must evaluate for their specific site whether the 
costs and benefits of using enhanced weapons are appropriate in 
general, and if appropriate in general, which specific types of weapons 
are appropriate for their particular site and protective strategy. 
Likewise, as applications are submitted to the NRC for its review and 
approval, the NRC will also evaluate the site-by-site suitability of 
the use of enhanced weapons in making its own determination that the 
planned use is consistent with public health and safety and the common 
defense and security.

B. Definitions (Sec.  73.2)

    Comment B.1: One commenter suggested that the definitions for 
enhanced weapons should include remotely operated weapon systems 
(ROWS). The commenter indicated that there is growing (State or local) 
pressure to regulate enhanced weapons, and these weapons allow 
increased defensive capabilities without expanding the number of armed 
responders.
    Response: The NRC disagrees. The definition of ``enhanced weapons'' 
under this rule is consistent with that contained in the Firearms 
Guidelines. The critical distinction for an enhanced weapon (e.g., a 
machine gun) is whether multiple rounds are fired with a single pull of 
the weapon's trigger or a single round is fired with a single pull of 
the trigger. The issue is not whether the trigger is pulled directly by 
a human finger or pulled remotely by an electro-mechanical device. 
Generally speaking, a ROWS is not in itself a ``weapon'' but rather is 
a mechanical and electro-optical mechanism into which a normal or 
enhanced weapon could be incorporated and thus permit the weapon to be 
fired remotely. In the NRC's view, licensees and certificate holders 
could currently employ a ROWS using the standard weapons to which they 
currently have access. However, licensees and certificate holders who 
apply for enhanced weapons and are approved for preemption authority 
would in theory be able to incorporate these weapons into a ROWS under 
the language of section 161A, notwithstanding any applicable State or 
local restrictions. Therefore, no change is needed to the definition. 
The NRC notes that a ROWS using machine guns would require NRC approval 
of this enhanced weapon. Although ROWS could also use short-barreled 
shotguns or short-barreled rifles, the NRC considers that approach 
unlikely because of the inherent inaccuracy of these weapons (i.e., 
these are short-range weapons that are typically designed for 
concealment purposes).

C. Authorization for the Use of Enhanced Weapons and Preemption of 
Firearms Laws (Formerly Proposed Sec.  73.19, Now Revised Proposed 
Sec.  73.18)

    Comment C.1: Several commenters stated that while the proposed rule 
allows enhanced weapons to be used for defense and requires the 
licensee to protect against an insider, it does not require the 
licensee to protect against an insider using enhanced weapons for the 
purposes of radiological sabotage.
    Response: The NRC agrees that the proposed rule (Sec. Sec.  73.18 
and 73.19) did not include language requiring a ``licensee to protect 
against an insider using enhanced weapons for the purposes of 
radiological sabotage.'' However, subsequent to the close of the 
comment period on the October 2006 proposed rule, the NRC published a 
separate final rule revising the design basis threat contained in Sec.  
73.1 (see 72 FR 12705; dated March 19, 2007), which addresses this 
issue. Specifically, Sec.  73.1(a) (1) (i) (B) and (C) for radiological 
sabotage and Sec.  73.1(a) (2) (i) (B) and (C) for theft or diversion 
of formula quantities of strategic special nuclear material both 
require licensees to protect against threats that include 
``knowledgeable inside assistance'' that can be active or passive, or 
both, and also addresses the use of hand-held automatic weapons. 
Consequently, the NRC concludes that the issue raised by these 
commenters has been addressed by a separate rulemaking; no further 
changes are required in this proposed rule.
    Comment C.2: Several commenters stated that the weapons safety 
assessment (required as part of licensee's or certificate holder's 
application for enhanced weapons under the proposed rule) should be 
expanded in scope to include the assessment of an insider malevolently 
using these weapons against the facility.
    Response: The weapons safety assessment is a new concept that the 
NRC created in developing the Firearms Guidelines to aid the staff in 
evaluating applications to use enhanced weapons. The NRC's intent was 
to require licensees and certificate holders to examine how they 
intended to deploy enhanced weapons and to assess if significant onsite 
or offsite collateral damage might occur from firing such weapons. If 
these types of concerns were identified, the licensee could take 
actions to use different caliber weapons (e.g., use a 5.56 x 45 mm 
round instead of a 7.62 x 51 mm round; the latter has a greater range 
and penetrating power) or to take preventive or mitigative efforts. 
Examples of preventive efforts could include limiting a fixed machine 
gun's field of fire through the use of elevation and traverse limits or 
not deploying a fixed machine gun along certain azimuths of a facility. 
Mitigative efforts could include the use of intervening, bullet-
resistant protective barriers.
    Thus, it is unclear to the NRC how licensees and certificate 
holders could gain useable mitigative or preventive information from a 
weapons safety assessment that included an evaluation of security 
personnel malevolently using their issued enhanced weapons against 
either safety-related or sensitive structures, systems, and components 
(SSCs) or critical personnel. The NRC has reached this conclusion given 
that a security individual's ``inside knowledge'' would likely allow 
them to

[[Page 6212]]

circumvent these mitigative or preventive measures (established in 
response to the assessment) or that installation of uncircumventable 
measures would likely impose unacceptable operations, maintenance, 
radiation protection, or design impacts on the SSCs. With respect to 
non-security personnel obtaining access to enhanced weapons and acting 
as an active insider, the licensee's and certificate holder's security 
plans currently require that all weapons be controlled and secured, 
unless they are in the possession of authorized security personnel.
    Consequently, the NRC would rely upon other personnel-monitoring 
programs required by NRC regulations to significantly reduce the 
likelihood of security personnel malevolently using their weapons 
against such SSCs or against critical personnel. These programs would 
include the fitness-for-duty program, psychological-screening program, 
behavioral-observation program, and insider-mitigation program. 
Therefore, the NRC would not expand the scope of the proposed weapons 
safety assessment as requested by the commenters.
    Comment C.3: One commenter stated that the NRC did not explicitly 
recognize the authority of FFL holders (who are licensed by ATF to 
manufacture, import, or possess machine guns) to transfer enhanced 
weapons to an NRC-licensee or certificate holder who has received the 
NRC's approval under this proposed rule and the October 2006 proposed 
rule to possess specific enhanced weapons and who has also received the 
ATF's approval under ATF regulations to receive these weapons. The 
commenter requested the NRC to explicitly clarify in a final rule that 
the holder of an FFL who has received approval from ATF to transfer 
specific types and quantities of enhanced weapons (machine guns) to a 
specific NRC licensee or certificate holder, is authorized to make this 
type of transfer.
    The commenter indicated that the basis for this comment was that 
ATF was not intending to revise its regulations to add approved NRC 
licensees and certificate holders to the list of entities that are 
authorized to obtain machine guns. Therefore, the commenter was 
concerned that without explicit clarification, the holder of an ATF FFL 
would be reluctant to transfer machine guns to approved NRC licensees 
and certificate holders, notwithstanding the NRC's and the ATF's 
written authorizations.
    Response: The Firearms Guidelines developed by the NRC, DOJ, FBI, 
and ATF and approved by the U.S. Attorney General define the overall 
process for NRC licensees and certificate holders obtaining enhanced 
weapons. The proposed rule would require the NRC to document in writing 
its approval of an application for enhanced weapons to the applying 
licensee or certificate holder. The licensee or certificate holder 
would then be required to provide a copy of the NRC's approval to the 
holder of an FFL who will supply the enhanced weapons. The holder of 
the FFL would include a copy of the NRC's approval with the FFL's 
application to ATF to transfer the specific weapons to the NRC licensee 
or certificate holder. Prior ATF approval must be received to transfer 
the weapons.
    ATF staff has indicated that ATF does not intend to revise any of 
its regulations to implement the provisions of section 161A. Therefore, 
the issued Firearms Guidelines and the specific NRC approval to obtain 
enhanced weapons should provide sufficient evidence to the holder of an 
FFL that they are submitting a lawful request to transfer such weapons. 
The holder of an FFL can contact ATF in advance regarding proposed 
transfers to NRC licensees or certificate holders. Finally, before ATF 
approves the transfer request and any weapons are actually transferred, 
ATF can consult with the NRC if any questions are identified regarding 
a specific proposed transfer.

D. Firearms Background Checks for Armed Security Personnel (Formerly 
Proposed Sec.  73.18, Now Revised Proposed Sec.  73.19)

    Comment D.1: One commenter asked if the proposed rule allows 
licensees to begin firearms background checks as soon as they have 
applied for preemption authority but before the NRC approves their 
application. If this is correct, under what authority would the 
licensee request the background check information? A second commenter 
requested clarification on whether some, or all, of the licensees' 
armed security personnel would be subject to a firearms background 
check if the licensee decides to implement Sec.  73.18. A third 
commenter requested clarification on whether firearms background checks 
(NICS checks) are completely separate from any other background check 
performed on people who do not have access to enhanced weaponry. A 
fourth commenter requested clarification on whether there is any change 
to existing background check requirements for security personnel under 
10 CFR part 73, if they will not have access to enhanced weapons.
    Response: The requirements for firearms background checks have 
changed substantially from the October 2006 proposed rule due to 
changes in the Firearms Guidelines. Under the revised proposed 
regulations, all licensees and certificate holders that fall within the 
classes of facilities, radioactive material, or other property 
designated under Sec.  73.19(c) and who employ covered weapons as part 
of their protective strategy would be required to complete satisfactory 
firearms background checks for all security personnel whose official 
duties require, or will require, access to covered weapons. Affected 
licensees and certificate holders must begin these checks within 30 
days of the effective date of a final rule designating such classes of 
facilities, radioactive material, or other property. Applicants for a 
new license or CoC may only begin submitting their security personnel 
for a firearms background check after the NRC has issued their 
respective license or CoC.
    A firearms background check is a separate action from the 
background investigation required as part of an access authorization 
program required under 10 CFR part 73 or for a personnel or material 
security clearance required under 10 CFR chapter 1. The revised 
proposed firearms background check requirements would not alter these 
personnel security, material security, or access authorization program 
requirements.
    Comment D.2: A commenter asked if the disqualifying criteria for 
the NICS background checks were available for licensee review.
    Response: The disqualifying criteria are available for public 
review under ATF's regulations at 27 CFR 478.32. ATF's regulations may 
be found at the National Archives and Records Administration's Web site 
for the Code of Federal Regulations: http://www.access.gpo.gov/nara/cfr/cfr-table-search.html#page1. Additionally, the NRC issued a generic 
communication in 2008 titled: Regulatory Information Summary RIS-2008-
10, ``Notice Regarding Forthcoming Federal Firearms Background 
Checks,'' dated May 13, 2008. Enclosure 1 to this RIS contained the 
disqualifying criteria and the RIS provided additional information 
resources to licensees, certificate holders, and their security 
personnel. RIS-2008-10 can be found in the NRC's Electronic Reading 
Room under ADAMS Accession No. ML073480158.
    The NRC also issued RIS-2008-10, Supplement 1, ``Notice Regarding 
Forthcoming Federal Firearms Background Checks,'' dated December

[[Page 6213]]

22, 2008. Supplement 1 provided further information on the 
implementation of the firearms background checks. It can be found in 
the NRC's Electronic Reading Room under ADAMS Accession No. 
ML082340897.

E. Reporting of Safeguards Events (Sec.  73.71 and Appendix G to Part 
73)

    Comment E.1: One commenter stated that the October 2006 proposed 
rule would require licensees to report particular incidents within a 
certain time from discovery. The commenter indicated that additional 
time is often necessary to determine whether an event is reportable or 
not. The commenter suggested the reportability clock should start when 
the event is determined to be reportable, not when it is discovered. 
The commenter believes this position is implied in previous NRC 
guidance, such as NUREG-1304, ``Reporting of Safeguards Events,'' dated 
February 1988. The commenter recommends the NRC clarify the rule 
language (or clarify in guidance documents) that additional time may be 
required to determine whether a security event is actually reportable 
or not. This approach would minimize the submission of unnecessary 
notifications and written reports. A second commenter indicated that no 
exception language (i.e., back out clause) exists regarding the 
submission of follow-up written reports for situations in which the 
original telephonic report is retracted or for situations for which the 
reported event never advances beyond the threshold specified in the 
original proposed Appendix G to part 73, paragraph II. A third 
commenter indicated that the proposed changes to Appendix G to part 73 
would result in unnecessary notifications.
    Response: While the NRC agrees that the overall goal of reducing 
unnecessary notifications is worthy, the NRC continues to believe that 
the time period for making notifications to the NRC should begin at the 
time of discovery, as opposed to when the licensee concludes a 
reportable event has occurred. This approach is preferred for two 
reasons.
    First, the NRC needs event notifications in a timely manner to 
integrate them into its ongoing assessment of the current threat 
environment. Security events occurring at multiple facilities may 
indicate a broader trend; a seemingly innocuous event occurring at a 
single site is quite different from similar events occurring at 
multiple sites. In a threat assessment, ``connecting the dots'' between 
multiple intelligence or threat threads can allow authorities to 
develop a larger mosaic, but this integration requires prompt 
notification from licensees. Second, the use of ``time of concluding'' 
when a reportable event occurs could allow a significant amount of time 
to lapse before a licensee makes the notification. This time lapse 
could also affect the accuracy of the ongoing assessment of the current 
threat environment. The current language in Sec.  73.71 refers to 
``time of discovery,'' and the commenters have not indicated that 
licensees are unable to comply with current requirements.
    The NRC encourages licensees to report security notifications and 
then subsequently retract them if appropriate (e.g., as invalid 
events). This is preferable to allowing licensees to delay or not make 
a notification that could potentially add a critical piece to the 
threat puzzle. In comparison, the NRC routinely receives safety-related 
notifications from power reactor licensees of actuation of an 
engineered safety feature that are subsequently retracted as an 
``invalid'' actuation. Therefore, the NRC agrees with the commenter 
that written follow-up reports are not necessary for event 
notifications that are retracted by the licensee. Accordingly, the NRC 
would add a new requirement to revised proposed Sec.  73.71(m)(13) to 
indicate that a written follow-up report is not required for events 
that are retracted before the 60-day written report due date. However, 
for events that are retracted after the written follow up report is 
submitted to the NRC, the licensee would be required to submit a 
revised written report to the NRC in accordance with revised Sec.  
73.71(m). This revised report is necessary to ensure that the official 
agency record describing the event is correct.
    Comment E.2: Several commenters indicated that the wording used to 
describe the types of events that reactor licensees must report under 
the 15-minute standard is confusing and is inconsistent with NRC 
Bulletin 2005-02 (see ADAMS Accession No. ML051740058). One commenter 
recommended deleting the term ``safeguards threat'' from Sec.  
73.71(a). One commenter suggested removing the word ``threat'' in order 
to be more consistent with original proposed Appendix G to part 73, 
paragraph I. One commenter recommended replacing the language in 
original proposed Appendix G to part 73, paragraph I (a) on ``actual or 
imminent threat against a nuclear power plant'' with ``an attack by a 
hostile force against the facility.'' One commenter indicated that the 
proposed notification did not address notification to local law 
enforcement agencies (LLEA) consistent with NRC Bulletin 2005-02, nor 
did it provide allowance for delaying the notification to the NRC to 
complete the LLEA notification.
    Response: The NRC agrees that the clarity of the regulation should 
be improved and made consistent with NRC Bulletin 2005-02. The NRC 
would replace the term ``safeguards threat'' with ``hostile action'' to 
indicate the urgency of the situation. The NRC would add clarity by 
simplifying the wording in Sec.  73.71(a) and incorporating the text 
from original proposed paragraph I(b) of Appendix G to part 73. The NRC 
would also remove the 15-minute notification from Appendix G to part 73 
as it would be duplicative with Sec.  73.71(a).
    Additionally, the NRC would apply the 15-minute notification 
requirement to Category I SSNM facilities, and to significant shipments 
from these licensees involving SNF, HLW, and Category I SSNM in a new 
paragraph (b) to Appendix G to part 73.
    These changes are necessary to accomplish the agency's strategic 
communication mission responsibilities (see Section III, 
``Discussion,'' of this document).
    The NRC agrees that notifications to LLEA to request immediate 
assistance should take precedence over lengthy event notifications to 
the NRC. However, because of the NRC's strategic communication 
missions, the NRC would not delay the initial notification to the NRC 
but would simplify the notification information to allow both 
notifications and requests for assistance to be made as rapidly as 
possible. Therefore, the NRC would add a sentence to proposed Sec.  
73.71(a) and (b) to indicate that a licensee's or certificate holder's 
request to LLEA for assistance in this event may take precedence over 
the notification to the NRC.
    Comment E.3: Several commenters disagreed with the requirement to 
establish an open and continuous communications channel following a 15-
minute notification. One commenter indicated that this new requirement 
for a continuous communication channel was not included in NRC Orders, 
the ``EPAC,'' or NEI guidance document 03-12. The commenter recommended 
this provision be eliminated and follow-up notifications made in 
accordance with Sec.  50.72. Another commenter indicated this provision 
was more stringent that NRC Bulletin 2005-02. The commenter recommended 
that the requirement be removed and not apply to 15-minute 
notifications. Another commenter disagreed with the requirement to 
establish an open and continuous communications channel following a

[[Page 6214]]

one-hour notification for transportation security events. The commenter 
argued that to mandate in all instances that a licensee establish a 
continuous communication channel detracts from a full integrated 
response to the security event. The commenter recommended that the NRC 
retain the discretion allowed by the current regulation so that 
priority can be given to maintaining safety.
    Response: The NRC disagrees with these recommendations. Under the 
current regulations in Sec.  73.71(a)(3) and (b)(2), licensees making a 
one-hour notification (e.g., for an attack against either a facility or 
against a transport) are currently required to maintain an open and 
continuous communication channel, upon request from the NRC. 
Consequently, given this current regulation, the commenters' arguments 
would only apply to the time from minute 15 (time of the event 
notification) to minute 60. After 60 minutes, establishing a continuous 
communications channel upon NRC request is required under existing 
regulations.
    However, the NRC recognized that this time would be extremely busy 
for licensee personnel. Therefore, the NRC would provide additional 
flexibility in the proposed rule. After a 15-minute notification, the 
licensee would only be required to establish the continuous 
communication channel after the following occurred: (1) The licensee 
completed other required notifications (e.g., declaration of an 
emergency or requesting local law enforcement personnel assistance); 
(2) the licensee completed any immediate actions to place the plant in 
a safe condition or stabilize the plant; or (3) 60 minutes elapsed from 
event discovery. The NRC also would provide flexibility and clarity 
regarding the personnel appropriate to staff such a communication 
channel. The communication channel could be staffed by personnel from 
the licensee's security, operations, or emergency response 
organizations at a location of the licensee's discretion.
    Comment E.4: Several commenters disagreed with the requirement to 
establish an open and continuous communications channel following a 
four-hour notification by a reactor licensee. One commenter raised the 
same arguments as with this requirement following 15-minute 
notifications. The commenter indicated this provision was unnecessary 
and recommended this provision be eliminated. Another commenter 
indicated that voluntary reporting had been working very well and there 
did not appear to be regulatory justification for the underlying 
notification requirement or the continuous communication channel 
requirement.
    Response: The NRC did not propose a requirement in the October 2006 
proposed rule to establish a continuous communication channel following 
a four-hour suspicious event notification (see proposed Sec.  
73.71(e)(5) at 71 FR 62867). The NRC is not changing its original 
approach in this proposed rule. Accordingly, Sec.  73.71(h)(8) would 
not require a continuous communications channel for four-hour event 
notifications. As discussed previously, the NRC has concluded that 
incorporating suspicious event notifications in Sec.  73.71 is 
necessary not only to understand patterns that are occurring at 
multiple sites, but also to achieve regulatory stability through the 
elimination of ``voluntary reporting requirements.''
    Comment E.5: One commenter indicated that making a one-hour report 
resulted in very ``sketchy'' information and suggested that two or four 
hours were a more appropriate time. The commenter indicated that if 
additional time were available, the licensee would be able to 
``discount'' many of these notifications before they were made (i.e., 
conclude that they were unnecessary before the notification is made, 
rather than retracting a previous notification).
    Response: The NRC disagrees and views the proposed one-hour 
notifications as appropriate. (See also response to Comment E.1 in this 
document on delaying notifications until complete information is 
available).
    Comment E.6: Two commenters disagreed with the removal of the word 
``credible'' from original proposed Appendix G to part 73, paragraph 
II(a). The commenters indicated that this was inappropriate and that, 
without the qualifying language, all manner of threats and unnecessary 
reports would be made. The commenters recommended returning to the 
current wording of this regulation.
    Response: The NRC disagrees. In the October 2006 proposed rule (see 
71 FR 62840), the NRC had proposed removing the word ``credible'' 
before the word ``threat.'' As the October 2006 proposed rule stated, 
``The Commission's view is that a determination of the `credibility' of 
a threat is not a licensee responsibility, but rests with the 
Commission and the intelligence community.'' The commenters are correct 
that removing the qualifying language ``credible'' may increase the 
number of notifications made by licensees. However, without the 
licensee's consulting with local law enforcement or the NRC staff, the 
NRC's view is that a licensee could not adequately assess the 
credibility of all potential events within the time limit of this one 
hour notification (i.e., one hour from time of discovery). Therefore, 
the NRC would require licensees to make the required notification for 
all such events. Consequently, the NRC would continue the original 
approach of removing the qualifying term ``credible'' in revised 
proposed Appendix G to part 73, paragraph I(a). The NRC will continue 
to monitor trends and patterns for security event notifications. Should 
the results of this monitoring, following implementation of this 
proposed approach, indicate that an inappropriate burden has been 
placed on licensees or NRC Headquarters Operations Center staff, then 
the NRC will evaluate the need for further changes to this requirement 
by rulemaking.
    Comment E.7: Two commenters disagreed with the approach in the 
original proposed Appendix G to part 73, paragraph II(b) and indicated 
that this notification was too broad. One commenter indicated that the 
proposed language would require a one-hour report for any improper 
entry or attempted entry into a protected area (PA), a vital area (VA), 
or the owner controlled area (OCA). The commenter indicated that on a 
daily basis plant workers may inadvertently attempt to gain access to a 
VA to which they are not currently authorized access. These events are 
not security threats and therefore should not be reported as such. The 
commenters indicated that these events should be qualified by some 
intent to committing radiological sabotage or ``an intentional act by 
an unauthorized individual.''
    Response: The NRC agrees. The NRC would revise proposed Appendix G 
to part 73, paragraph I(b)(1) to require one-hour notifications for 
actual entry of an unauthorized person into a PA, VA, material access 
area (MAA), controlled access area (CAA), or transport. This would be 
accompanied by revised paragraph I(b)(2) where the NRC would require 
one-hour notifications for the attempted entry of authorized persons 
with malevolent intent into a PA, VA, MAA, CAA, or transport vehicle or 
shipment. The NRC notes that the term ``controlled access area'' is 
defined in Sec.  73.2 and is not the same as the term ``owner 
controlled area'' that is used at power reactor facilities. A CAA can 
be used to store special nuclear material (SNM) at a range of 
facilities possessing SNM that are subject to Sec.  73.67. This 
includes power reactors as well as fuel cycle facilities.

[[Page 6215]]

    Comment E.8: One commenter indicated that original proposed 
Appendix G to part 73, paragraphs II(c) and II(d) both needed further 
clarification. The same commenter urged the NRC to focus event 
notifications on intentional acts or omissions that would have allowed 
unauthorized access to any area or transport for which the licensee is 
required to control access.
    Response: The NRC agrees that additional clarification to Appendix 
G to part 73 is warranted. Accordingly, the NRC would split revised 
proposed, paragraph II(e) into two components for events involving 
failures, degradation, or the discovered vulnerabilities in safeguards 
systems, for which compensatory measures have not been employed, that 
could permit unauthorized or undetected access of explosives or 
incendiaries beyond a vehicle barrier, or personnel or contraband into 
a PA, VA, MAA, CAA, or transport. With regard to the commenter's 
suggestion that the language focus on intentional acts or omissions, 
the NRC disagrees with this suggestion. The current Appendix G to part 
73, paragraph I(c) does not limit these events to intentional acts or 
omissions. For example, the cause of the notification may arise from 
barrier degradation or natural events. Focusing or screening criteria 
on intentional acts or omissions would preclude notifications that the 
NRC deems necessary.
    The NRC would revise proposed Appendix G to part 73, paragraph I(c) 
to require notifications for actual introduction of contraband into a 
PA, VA, MAA, CAA, or transport and attempted introduction with 
malevolent intent of contraband into a PA, VA, MAA, CAA, or transport. 
Revised proposed Appendix G to part 73, paragraph I(d) would address an 
actual or attempted introduction of explosives or incendiaries beyond 
the vehicle barrier. The language in paragraphs I(c) and I(d) differs 
because some items are considered contraband when they are located at a 
nuclear facility, but not when they are away from the facility (e.g., a 
handgun and ammunition). Other items are always considered contraband--
irrespective of their location (e.g., explosives and incendiaries).
    Comment E.9: One commenter indicated that the four-hour 
notification provision was unnecessary and recommended that this 
provision be eliminated. The commenter indicated that voluntary 
reporting had been working very well and there did not appear to be 
regulatory justification for the four-hour notification requirements. 
Several commenters objected to the original proposed Appendix G to part 
73, paragraph III(a)(3) to require four-hour notifications following 
licensee notification of local, State or national law enforcement 
officials, or a law enforcement response to the facility not otherwise 
covered by original proposed paragraphs I or II. One commenter 
suggested that there was no basis for this requirement and indicated 
that many of the calls to law enforcement officials currently made by 
licensees have no nexus to the licensee's security activities. Another 
commenter indicated that this proposed requirement is problematic 
because its scope is not clearly defined.
    Response: The NRC continues to view the reporting of suspicious 
activities to the NRC as an important component in evaluating the 
threat against licensed facilities and radioactive material. Individual 
reports are integrated into a mosaic of information that is reviewed 
with law enforcement and homeland security officials, as appropriate. 
The NRC views the long-term imposition of a ``voluntary'' notification 
for suspicious events as inconsistent with regulatory stability and the 
agency's strategic goals for fostering transparency and public 
involvement in developing and imposing regulatory requirements.
    However, the NRC agrees that requirements must be clearly specified 
in regulations and have a nexus to NRC's mission. Consequently, the NRC 
agrees that a notification to local law enforcement that has no nexus 
to licensee security activities should not require a notification to 
the NRC. However, the NRC does continue to view notifications to law 
enforcement that are related to implementation of the physical security 
program as appropriate for NRC notification so that the NRC can be 
prepared to respond to public or press inquiries on the security event. 
This is similar to the current requirement for power reactor event 
notifications in Sec.  50.72(b)(2)(xi). Therefore, the NRC would narrow 
the scope of the revised proposed paragraph II(c) to require the 
existence of one of the following: (1) A nexus to the physical 
protection program; or (2) a reasonable expectation for public or media 
inquiries following a law enforcement response to the facility. The NRC 
also would add language to eliminate duplicate notifications.
    Comment E.10: Several commenters indicated that it would be hard 
for licensees to differentiate between the one-hour and four-hour 
notifications for tampering and manipulation. A second commenter 
indicated that the proposed language would result in unnecessary one-
hour notifications and suggested that the phrase ``unauthorized use 
of'' is problematic.
    Response: The NRC agrees that a clearer distinction between one-
hour and four-hour tampering event notifications is appropriate. The 
NRC also agrees that the phrase ``unauthorized use of'' is unclear. 
Therefore, the NRC would propose one-hour tampering notifications in 
the revised proposed Appendix G to part 73, paragraphs I(a)(3) and 
I(a)(4). The revised text would require that the potential tampering 
event leads to the interruption of normal operations of the facility. 
In revised proposed paragraphs II(b)(1) and II(b)(2), these four-hour 
notifications would not require the potential tampering event to lead 
to the interruption of facility operation. The NRC also would add 
clarity by indicating that the tampering refers to ``unauthorized 
operation, manipulation, or tampering with reactor controls or with 
safety-related or non safety-related structures, systems, and 
components (SSCs).'' A four-hour notification would be added in revised 
proposed II(b)(3) to address unauthorized operation, manipulation, or 
tampering with reactor controls or with security-related SSCs (i.e., 
the NRC would not expect tampering with security-related SSCs to affect 
normal reactor or facility operations).
    Comment E.11: One commenter indicated that the provision of 
original proposed Appendix G to part 73, paragraph III(c) on follow-up 
verbal communications regarding suspicious events that would be 
reported under original revised paragraph III(a)(1) are unnecessary and 
should be removed and addressed in internal NRC procedures.
    Response: The NRC disagrees. This proposed language ensures that 
the NRC Headquarters Operations Center is the single point of receipt 
for security notifications made to the NRC. These notifications would 
then be forwarded to the appropriate NRC organization.
    This information handling protocol is similar to the process for 
classified notifications to the Headquarters Operations Center 
described in revised proposed paragraph III of Appendix A to part 73.
    Comment E.12: One commenter indicated that licensees should be 
required to train personnel on indications of tampering. The commenter 
also suggested that unless licensees are required to formally 
incorporate tampering assessments into all corrective actions taken for 
target set equipment malfunction and

[[Page 6216]]

mispositioning events, this proposed regulation would not have much 
meaning.
    Response: In Sec.  73.55(i), the NRC has added requirements for 
power reactor licensees to ensure that their physical protection 
program includes surveillance, observation, and monitoring provisions 
to identify indications of tampering. The NRC may consider similar 
requirements for other classes of licensed facilities in future 
security rulemakings. The commenter suggests that tampering assessments 
be incorporated into certain corrective action reports. That suggestion 
would require changes to quality assurance program regulations which 
are beyond the scope of this rulemaking.
    Comment E.13: One commenter asked if there were restrictions on 
which licensee personnel can make four-hour event notifications. The 
commenter also asked if these notifications also would be made through 
the NRC headquarters operations personnel.
    Response: The licensee may use any trained and qualified individual 
to make a four-hour event notification to the NRC. All notifications 
required under Sec.  73.71 would be made under revised proposed Sec.  
73.71(h) to the telephone numbers for the NRC Headquarters Operations 
Center, which are specified in revised proposed Table 1 in Appendix A 
to part 73.
    Comment E.14: One commenter noted that the exemption for the use of 
nonsecure communication systems to make exigent or emergency 
notifications containing Safeguards Information should be updated from 
the current Sec.  73.71 to refer to the correct exemption paragraphs in 
Sec. Sec.  73.22 and 73.23 under the final Safeguards Information rule 
the NRC is developing.
    Response: The NRC agrees in part and has revised the proposed 
language in paragraph (h) to refer to the correct paragraph in Sec.  
73.22 to reflect the final Safeguards Information rule. The NRC issued 
the final Safeguards Information rule on October 24, 2008 (73 FR 
63545), effective February 23, 2009. The NRC would not include a 
reference to Sec.  73.23 at this time because this provision does not 
currently apply to licensees subject to Sec.  73.71.
    Comment E.15: One commenter stated that it was not clear what 
adding the term ``current'' to ``safeguards event log'' in Sec.  
73.71(f) meant. The commenter asked if the NRC was intending to require 
a new or additional time restriction requirement for these records. The 
commenter recommended that the term ``current'' be removed. One 
commenter indicated that the proposed change from ``that committed'' to 
``that described'' in original proposed Appendix G to part 73, 
paragraph IV(b) will be problematic and result in unnecessary security 
log entries. The commenter recommends that the NRC revert to the 
current ``that committed'' language.
    Response: The NRC agrees. The proposed regulations would specify 
the timeliness of adding these records and the retention period for 
these records. Therefore, the modifier ``current'' does not add value 
or clarity to the ``safeguards event log'' regulation and would be 
deleted. The NRC also would revise proposed paragraph IV(e) in Appendix 
G to use ``that committed'' to in a licensee's or certificate holder's 
NRC-approved security plan.
    Comment E.16: One commenter indicated that the logable events 
paragraph in the original proposed Appendix G to part 73, paragraph 
IV(b) has always been difficult to implement under the current 
paragraph II(b) in Appendix G to part 73.
    The commenter recommends that this provision be removed.
    Response: The NRC disagrees. The original revised paragraph has 
only a minor difference from the current regulation. This paragraph is 
intended to sweep security-related events not otherwise specifically 
identified in Appendix G to part 73 into the licensee's or certificate 
holder's security log, where they can be subsequently reviewed by NRC 
staff. The NRC considers this capability important in the security 
inspection program, and it should be retained. However, the NRC will 
evaluate whether regulatory guidance can be improved in this area.
    Comment E.17: Several commenters objected to the proposed 
requirement to submit a written report following a 15-minute 
notification under the original proposed Sec.  73.71(a). Many used the 
same objections as to the 15-minute notification itself or duplication 
with the one-hour notification. One commenter viewed this requirement 
as redundant and recommended that it be removed. Another commenter 
recommended that written follow-up reports for 15-minute notifications 
be added to the exception for written reports in original proposed 
Sec.  73.71(g)(2). One commenter indicated that the original proposed 
regulation indicating which telephonic notifications do not require a 
written follow-up report was unnecessary regulatory language and was 
not included in NRC Orders, the ``EPAC,'' or NEI guidance document 03-
12.
    Response: The NRC agrees in part and disagrees in part. The NRC 
agrees that one-hour notifications following a 15-minute notification 
for the same event are redundant. Therefore, the NRC would add a 
paragraph to revised proposed Sec.  73.71(c) and (d) (one-hour 
notifications) to eliminate redundant notifications from events 
reported under revised proposed Sec.  73.71(a) and (b), respectively. 
However, the NRC continues to view written follow-up reports as an 
important component of the event notification process. The NRC also 
views language excluding follow-up written reports following certain 
events as providing regulatory clarity and reducing licensee burden. 
Therefore, the NRC would retain a requirement for written follow-up 
reports following 15-minute notifications to provide for NRC event 
analysis and review, as well as for evaluation of any necessary 
licensee corrective actions. However, the NRC would remove language in 
Appendix G to part 73 referring to ``followed by a written report 
within 60 days,'' as this language is duplicative of the language in 
Sec.  73.71, which addresses follow-up written reports after security 
event telephonic notifications.
    Comment E.18: One commenter suggested adding a new requirement to 
original proposed Sec.  73.71(g)(11) that is similar to the proposed 
language in paragraph (f)(2) to revise the records retention 
requirements for follow-up written reports to add ``or until 
termination of the license.''
    Response: The NRC agrees. The NRC would include ``or until 
termination of the license'' in the revised proposed Sec.  
73.71(m)(12).
    Comment E.19: One commenter stated that updated guidance is needed 
on implementing this revised regulation for both event notifications 
and written reports. The commenter recommends that the NRC issue 
updated guidance before issuing a final rule. A second commenter asked 
if the final rule or regulatory guidance will give licensees detailed 
information on what reaches the threshold of tampering.
    Response: The NRC published draft regulatory guide DG-5019 on event 
notifications for public comment on July 6, 2007 (72 FR 37058). The NRC 
also held a public meeting to discuss the draft regulatory guide on 
July 27, 2007. Because of the additional changes to the event 
notification regulations, the NRC intends to reissue DG-5019 for 
additional public comment.
    The NRC will also hold an additional public meeting to discuss the 
reissued DG-5019. A final regulatory guide will be issued following the 
publication of a final rule.

[[Page 6217]]

F. Information Collection Requirements

    Comment F.1: One commenter responded to the NRC's question on 
whether the proposed information collection requirements are necessary 
(regarding the proposed 15 minute notification requirement in Sec.  
73.71(a) for imminent or actual threats) and stated that this 
notification has no practical utility. The commenter indicated that the 
NRC is not a response organization and brings no resources to bear to 
resist an actual threat. The commenter indicated that the resources and 
time spent communicating with the NRC would be better spent 
communicating with local resources that could actually assist in 
defending the licensee's facility.
    Response: The NRC disagrees. These licensee and certificate holder 
notifications are necessary for the NRC to accomplish its strategic 
communications missions (see Section III, ``Discussion,'' of this 
document). Therefore, they would be retained.
    Comment F.2: One commenter responded to the NRC's question on the 
estimate of the burden and indicated that the number of responses per 
site and the time per response estimated by the NRC for the 
fingerprinting provisions in proposed Sec.  73.19(e)(1) were too low. 
The commenter suggested a better estimate of the burdens would be 975 
annual responses per site per year and that the time to accomplish each 
response would be 1 hour.
    Response: The NRC has revised the estimated information collection 
burden for this provision in this proposed rule to reflect the 
commenter's suggestions.
    Comment F.3: One commenter responded to the NRC's question on 
whether a proposed information collection burden (regarding the 
proposed 15-minute notification requirement in Sec.  73.71(a) for 
imminent or actual threats) could be minimized, including the use of 
automated collection techniques. The commenter suggested that this 
burden should be completely automated, if not removed. The commenter 
suggested that an automated feature should be a push button that 
notifies the NRC that a threat exists. Only after the threat is 
neutralized should the licensee be required to provide additional 
details to the NRC.
    Response: While the concept of an automated imminent attack or 
threat notification system may be desirable, the NRC believes there are 
significant technological and policy challenges to be resolved to 
implement such a system. These challenges would include resolution of 
software issues such as: Message content, licensee identification, 
authentication, and non-repudiation protocols. Hardware issues could 
include circuit redundancy, independence, and tamper indication. Policy 
issues such as the degree of authentication and non-repudiation 
necessary to support automatic command and control actions, without 
human verification of the initial information, also would need to be 
addressed. Therefore, the NRC would not adopt this suggestion. However, 
the NRC may pursue evaluation of this or a similar communications and 
command and control capabilities in the future to reduce industry 
burden.

V. Section-by-Section Analysis

A. Overview

    This proposed rulemaking would implement the new voluntary enhanced 
weapons and preemption authority and the mandatory firearms background 
check requirements that are authorized under section 161A of the AEA. 
The Commission is required by this statute to designate by rule or 
order the classes of facilities, radioactive material, or property 
appropriate for the application of this authority. The proposed 
regulations in this rule are consistent with Firearms Guidelines issued 
by the Commission with the approval of the U.S. Attorney General (see 
discussion in Section II, ``Background,'' of this document).
    This proposed rulemaking to part 73 would revise three existing 
sections (Sec. Sec.  73.2, 73.8, and 73.71); add two new sections to 
(Sec. Sec.  73.18 and 73.19); revise Appendix A and Appendix G; and 
make conforming changes to Sec. Sec.  73.46, 73.55, and Appendix B to 
part 73.
    The NRC is also proposing a new NRC Form 754, ``Armed Security 
Personnel Background Check'' to implement the provisions of the 
firearms background check under proposed Sec.  73.19. The NRC would 
make minor editorial changes to the instructions and the assisting 
text. Additionally, the NRC would revise Question 4 to simplify the 
question and also provide the option for multiple duty station 
locations.

B. Definitions (Sec.  73.2)

    New definitions for the terms: Adverse firearms background check, 
covered weapon, combined enhanced weapons authority and preemption 
authority, enhanced weapon, firearms background check, NICS, NICS 
response, satisfactory firearms background check, stand-alone 
preemption authority, and standard weapon would be added in 
alphabetical order to the definitions in Sec.  73.2(a). These new 
definitions are consistent with the definitions for the same terms 
found in the Firearms Guidelines issued by the Commission, with the 
approval of the U.S. Attorney General. New definitions for the terms: 
High-level radioactive waste (HLW) and spent nuclear fuel (SNF) would 
be added as conforming changes to the changes made to Sec.  73.71 and 
Appendix G to part 73. The definitions for HLW and SNF are consistent 
with the definitions for these terms found in section 2 of the Nuclear 
Waste Policy Act of 1982, as amended (42 U.S.C. 10101(12) and (23), 
respectively).
    New paragraphs (b) and (c) would be added to Sec.  73.2 to provide 
cross references to ATF's regulations and to FBI's regulations for 
selected terms within these new definitions, rather than explicitly 
defining these same terms in the NRC's regulations. These cross-
referenced terms would include handgun, rifle, shotgun, short-barreled 
shotgun, short-barreled rifle, semi-automatic assault weapon, machine 
gun, ammunition, and large capacity ammunition feeding device (under 
ATF's regulations) and the terms proceed NICS response, delayed NICS 
response, and denied NICS response (under FBI's regulations).

C. Information Collection Requirements: OMB Approval (Sec.  73.8)

    Paragraph (b) would be revised to add Sec. Sec.  73.18 and 73.19 to 
the list of sections in part 73 that contain information collection 
requirements and that have been approved by OMB under control number 
3150-0002.
    Paragraph (c) would be added to specify the OMB control numbers for 
three forms referenced under specific sections of part 73, because 
these forms have a separate OMB control number than their initiating or 
referencing regulation. Two forms currently exist, and their inclusion 
would be added to this paragraph as a corrective change (NRC Form 366 
and FBI Form FD-258) under OMB control numbers 3150-0104 and 1110-0046, 
respectively. The third form would be added to this paragraph as a new 
form (NRC Form 754) under OMB control number 3150-0204.

D. Authorization for Use of Enhanced Weapons and Preemption of Firearms 
Laws (Sec.  73.18)

    New Sec.  73.18 would contain 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 
under section 161A of the AEA. Due to the structure of section 161A, 
licensees and

[[Page 6218]]

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. 
Proposed paragraph (a) would describe the purpose of the section and 
paragraph (b) would contain general requirements applicable to both 
types of authority.
    Paragraph (c) would list the designated classes for either stand-
alone preemption authority or combined enhanced weapons authority and 
preemption authority. Section 161A requires the Commission to designate 
classes of facilities, radioactive material, and other property for 
which the use of such authority is appropriate. The NRC would apply 
these requirements to two classes of facilities: (1) Power reactor 
facilities; and (2) Category I SSNM facilities authorized to possess or 
use a formula quantity or greater of SSNM, where the SSNM has a 
radiation level of less than or equal to 1 Gray (Gy) (100 Rad) per hour 
at a distance of 1 meter (m) (3.28 feet [ft]), without regard to any 
intervening shielding. The NRC intends to specify any additional 
classes of authorized facilities, radioactive material, and other 
property in a separate future rulemaking. Similarly, the proposed rule 
would refer to both licensees and certificate holders to be consistent 
with the scope of the statute, although the NRC would designate only 
power reactor facilities and Category I SSNM facilities as appropriate 
for section 161A authority (i.e., these facilities are owned and 
operated by licensees).
    In paragraph (d), the NRC would require authorized licensees and 
certificate holders (i.e., those that fall within designated classes of 
facilities, radioactive material, and other property) who are 
interested in obtaining this authority to apply for stand-alone 
preemption authority. The benefits that would accrue to a specific 
licensee or certificate holder under this authority would likely vary 
depending on the locale of the affected facility (i.e., State and local 
firearms restrictions can vary widely). Separately, the benefit that 
would accrue to licensees and certificate holders transporting 
designated classes of radioactive material would be a consistent 
Federal standard, rather than varying State standards, and the ability 
to maintain weapons in a loaded and ready for use condition when 
escorting a shipment across State lines (Federal law requires that 
weapons be transported across State lines in an unloaded condition). 
Before submitting their application to the NRC, licensees and 
certificate holders must have completed satisfactory firearms 
background checks for their security personnel. Alternatively, 
licensees and certificate holders can indicate that they have commenced 
the firearms background checks in their application and then supplement 
their application with information that they have completed 
satisfactory firearms background checks. The NRC would document its 
approval of the application in writing.
    In paragraph (e), the NRC would require authorized licensees and 
certificate holders (i.e., those that fall within designated classes of 
facilities, radioactive material, and other property) to apply to the 
NRC for combined enhanced-weapons authority and preemption authority. 
The benefit that would accrue to a specific licensee or certificate 
holder under this authority would be obtaining enhanced weapons to 
defend their facility or shipment of radioactive material or other 
property. Additionally, due to the structure of section 161A, licensees 
and certificate holders applying for enhanced weapons authority must 
also apply for and obtain preemption authority. Therefore, the NRC 
would use the term ``combined enhanced-weapons authority and preemption 
authority'' to refer to this authority. Licensees and certificate 
holders who previously applied for preemption authority under paragraph 
(d) would not be required to reapply for that authority, but would 
indicate the date the NRC had approved their previous application. 
Before submitting their application to the NRC, licensees and 
certificate holders must have completed satisfactory firearms 
background checks for their security personnel.
    Alternatively, licensees and certificate holders can indicate that 
they have commenced the firearms background checks in their application 
and then supplement their application with information that they have 
completed satisfactory firearms background checks. The NRC would 
document its approval of the application in writing.
    In paragraph (f), the NRC would specify the technical information 
that must be included with a licensee's or certificate holder's 
application to obtain enhanced weapons. The NRC would describe the 
requirements of the security plans, training and qualifications plans, 
and contingency response plans supporting the use of enhanced weapons. 
The NRC would require licensees and certificate holders to develop 
their training and qualification plans for enhanced weapons based upon 
standards set by nationally-recognized firearms organizations or 
Federal agencies. The NRC intends to include information on firing 
range construction for enhanced weapons in the regulatory guidance 
being developed. The NRC would require that applying licensees and 
certificate holders submit 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 enhanced weapons 
the licensee or certificate holder intends to employ; and to provide a 
weapons safety assessment of the onsite and offsite impact of the 
specific types and caliber of enhanced weapons it intends to employ. 
The NRC would take this approach because the NRC is responsible for 
making a determination on the technical adequacy of the specific 
weapons the licensee or certificate holder proposes to use. 
Consequently, the NRC would require licensees and certificate holders 
to submit these plans and analyses to the NRC as a license or 
certificate amendment, in accordance with the applicable provisions of 
parts 50, 70, and 76.
    Additionally, licensees and certificate holders who have been 
approved for enhanced weapons and who subsequently desire to obtain 
different types, calibers, or quantities of enhanced weapons must 
repeat this process to obtain the weapons.
    In paragraph (g), the NRC would require licensees and certificate 
holders to provide a copy of the NRC's approval letter to the holder of 
an ATF FFL that will be providing the enhanced weapons to the licensee 
or certificate holder. The holder of an ATF FFL would include the NRC's 
approval in the application to ATF to transfer enhanced weapons to the 
licensee or certificate holder. ATF must approve in advance all 
transfers of enhanced weapons.
    Licensees and certificate holders obtaining enhanced weapons also 
would be required to comply with applicable ATF regulations, 
registration, and tax-stamp requirements. Enhanced weapons obtained by 
the licensee or certificate holder must be registered under the name of 
the licensee or certificate holder (i.e., they may not be registered 
under the name of a security contractor to the licensee or certificate 
holder). Following the NRC's approval of a licensee's or certificate 
holder's application, if the licensee or certificate holder wants to 
obtain different or additional enhanced weapons, they would reapply 
under this section. The NRC also would indicate that licensees and 
certificate holders obtaining

[[Page 6219]]

enhanced weapons may, at their discretion, also apply to ATF to obtain 
an FFL or a special occupational tax (SOT) stamp (associated with the 
transfer of a machine gun). Obtaining an FFL and/or an SOT stamp would 
provide NRC licensees and certificate holders with greater flexibility 
in transferring and receiving machine guns. However, it also would 
subject them to greater regulation, inspection, and oversight by ATF.
    In paragraph (h), 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. Recurring training and requalification on any 
enhanced weapons also would be required in accordance with the 
licensee's or certificate holder's approved training and qualification 
plan. The NRC would reserve paragraph (i) to avoid confusion.
    In paragraph (j), the NRC would treat the use of enhanced weapons 
the same as existing weapons (e.g., standards on deadly force). 
Accordingly, the NRC would cross-reference to the applicable security 
regulations for other classes of facilities or radioactive material.
    In paragraph (k), the NRC also would require Commission licensees 
and certificate holders to notify the NRC of any adverse ATF inspection 
or enforcement findings received by the licensee or certificate holder 
regarding the receipt, possession, or transfer of enhanced weapons. The 
NRC would reserve paragraph (l) to avoid confusion.
    In paragraph (m), the NRC would define permissible reasons to 
remove an enhanced weapon from an authorized licensee's or certificate 
holder's facility that would not constitute the transfer of an enhanced 
weapon under ATF's regulations (training and escorting shipments of 
radioactive material that fall within a class designated under 
paragraph (c)). The NRC would reserve any additional reasons, if 
necessary, for a future rulemaking. The NRC would require that records 
be maintained to track not only the removal of enhanced weapons from 
licensee's or certificate holder's facility but also the return of such 
weapons to the facility. The NRC would also describe actions that would 
constitute a transfer of enhanced weapons. Such a transfer would 
require application to and prior approval from ATF. The NRC would 
indicate that weapons that are not returned to the facility are to be 
considered stolen or lost or an approved transfer. Finally, the NRC 
would indicate that the issuance of an enhanced weapon to a security 
individual with the subsequent return of the weapon upon the completion 
of official duties would not constitute a transfer under ATF's 
regulations. The NRC would require NRC licensees and certificate 
holders to assist an ATF FFL in submitting the required paperwork to 
ATF to transfer the weapons to the licensee or certificate holder.
    In paragraph (n), the NRC would describe requirements to transport 
enhanced weapons for activities that are not considered a transfer of 
the enhanced weapons. Enhanced weapons being transported would be 
unloaded and placed in a locked secure container. Ammunition for the 
weapon may be placed in the same container for transport. The exception 
to this requirement would be for purposes of escorting shipments of 
radioactive material or other property designated under paragraph (c). 
While escorting these shipments, the enhanced weapons would remain 
loaded and available for immediate use.
    In paragraph (o), the NRC would describe requirements for 
conducting periodic inventories of enhanced weapons to verify that 
these weapons are not stolen or lost. The NRC would propose two types 
of inventories. First, a monthly inventory that would require counting 
the number of enhanced weapons that are present at the licensee's or 
certificate holder's facility. Licensees and certificate holders would 
be able to use electronic technology (e.g., bar codes) to conduct this 
inventory. Second, a semi-annual inventory that would verify the serial 
number of each weapon that is present at the licensee's or certificate 
holder's facility. The monthly inventory would not require accounting 
for weapons that are located in in-plant ready-service containers that 
are locked and sealed with a TID. Instead, the inventory would verify 
the presence of the intact TID (indicating the container had not been 
opened). However, the semi-annual inventory would require a 
verification of all weapons at the licensee's or certificate holder's 
facility. The NRC would specify limits on the intervals between 
inventories. Records would be maintained on inventory results. 
Inventories would be conducted by two-person teams to prevent 
manipulation of inventory results. Minimum requirements on TIDs used 
for securing enhanced weapons would be specified.
    Finally, inventory discrepancies would require resolution within 24 
hours of identification. Otherwise, the discrepancy would be treated as 
if an enhanced weapon had been stolen or lost.
    In paragraph (p), the NRC would describe requirements for 
notification of the NRC and local law enforcement officials of this 
event. Requirements on the timing of these notifications would be 
located in Sec.  73.71. The NRC also would note that licensees and 
certificate holders possessing enhanced weapons are subject to a 
separate ATF requirement to notify ATF of any stolen or lost weapons 
registered at 49 CFR part 479 (i.e., enhanced weapons).
    In paragraph (q), the NRC would describe the records requirements 
for licensees and certificate holders relating to the receipt, 
transfer, and transportation of enhanced weapons. Retention 
requirements for records required under this section would be specified 
as up to one year after the licensee's or certificate holder's 
authority is terminated, suspended, or revoked.
    Records also would be retained on completed inventories of enhanced 
weapons and on any stolen or lost enhanced weapons. Licensees and 
certificate holders would be permitted to integrate any records 
required under this paragraph with records required by ATF relating to 
the possession of enhanced weapons. Licensees and certificate holders 
would be required to make these records available to NRC inspectors 
and/or ATF inspectors upon request.
    In paragraph (r), the NRC would describe requirements regarding the 
termination, modification, suspension, and revocation of a licensee's 
or certificate holder's section 161A authority. Licensees and 
certificate holders seeking termination or modification of their 
authority to possess enhanced weapons, or different types of enhanced 
weapons would be required to apply to the NRC in accordance with this 
section. Licensees and certificate holders would be required to 
transfer any enhanced weapons they will no longer be authorized to 
possess to an appropriate party in accordance with ATF's requirements; 
or the weapons can be surrendered to ATF for destruction. Licensees and 
certificate holders may reapply for this authority if it has been 
terminated, suspended, or revoked. The NRC would also establish 
criteria for revocation of the authority to possess enhanced weapons. 
Additionally, the NRC would promptly notify ATF of these actions.

E. Firearms Background Checks for Armed Security Personnel (Sec.  
73.19)

    New Sec.  73.19 would contain requirements for a licensee or 
certificate holder to conduct a firearms background

[[Page 6220]]

checks mandated under section 161A of the AEA. The firearms background 
checks required by Sec.  73.19 would be intended to verify that armed 
security personnel are not prohibited from receiving, possessing, 
transporting, or using firearms under Federal or State law. Proposed 
paragraph (a) would describe the purpose of the section.
    In paragraph (b), the NRC would describe general requirements 
regarding firearms background checks. These checks would apply to all 
licensees and certificate holders that fall within the classes of 
facilities, radioactive material, and other property designated under 
paragraph (c), if the licensee or certificate holder uses covered 
weapons as part of its protective strategy. These checks would apply to 
all security personnel of such licensees and certificate holders, whose 
official duties require access to covered (i.e., both standard and 
enhanced) weapons, irrespective of whether the security personnel are 
directly employed by the licensee or certificate holder or they are 
employed by a security contractor who provides security services to the 
licensee or certificate holder (see also new definitions for Covered 
weapons, Enhanced weapons, and Standard weapons in Sec.  73.2).
    The Firearms Guidelines required by section 161A refer to 
``security personnel whose official duties require access to covered 
weapons.'' The NRC would apply this criterion to individuals in the 
licensee's or certificate holder's security organization who handle, 
use, maintain, and repair covered weapons and inventory enhanced 
weapons. Specifically, individuals performing official duties involving 
access to covered weapons, including: carrying weapons (security 
personnel, supervisors, and response personnel); firearms instructors; 
armorers (repair and maintenance of weapons), weapons' issuance and 
receipt; and individuals inventorying enhanced weapons. This would not 
include warehouse or supply personnel who receive shipments of covered 
weapons, provided the weapons remain secured in their shipping 
containers, are promptly turned over to security personnel, and are 
promptly placed in secure weapons storage areas (e.g., armories).
    These checks would not apply to applicants for a license or a CoC 
until after the NRC issues the license or the CoC. These new licensees 
and certificate holders would not be able to commence firearms 
background checks until after the NRC issues their license or CoC. 
Additionally, these new licensees and certificate holders would be 
required to complete satisfactory firearms background checks for their 
affected security personnel before to the initial receipt of source, 
byproduct, or special nuclear material authorized by the license or 
CoC.
    Within 30 days after the effective date of a final NRC rule 
designating classes of facilities, radioactive material and other 
property, affected licensees and certificate holders would be required 
to commence firearms background checks (i.e., within 60 days after 
publication of the final rule in the Federal Register). Within 180 days 
after the effective date of a final NRC rule, affected licensees and 
certificate holders would be required to remove from duties requiring 
access to covered weapons any individual who has not completed a 
satisfactory firearms background check (i.e., within 210 days after 
publication of the final rule in the Federal Register). During this 
180-day transition period, affected licensees and certificate holders 
that currently possess enhanced weapons under an authority other than 
section 161a would be required to remove from any duties requiring 
access to enhanced weapons any security personnel who receive a 
``delayed'' NICS response to their firearms background check. 
Subsequent to the 180-day transition period, affected licensees and 
certificate holders must complete a satisfactory firearms background 
check for (new) personnel whose duties would require access to covered 
weapons. During this 180-day period, affected licensees and certificate 
holders would be required to remove from duties requiring access to 
covered weapons any individual who receives a ``denied'' NICS response. 
However, individuals who receive a ``delayed'' NICS response would be 
permitted to continue their access to standard weapons until the 180-
day period expires or the ``delayed'' NCIS response is resolved into a 
``denied'' NICS response. Individuals who have been removed from duties 
requiring access to covered weapons due to a ``denied'' or ``delayed'' 
NICS response would be permitted to return to such duties if they 
subsequently receive a ``proceed'' NICS response (i.e., they have 
completed a satisfactory firearms background check).
    Security personnel who have a break in service or who transfer to 
another licensee or certificate holder would be required to complete a 
new firearms background check. However, a change in the licensee, 
certificate holder, security contractor, or ownership of the license or 
CoC would not trigger a new firearms background check. Firearms 
background checks would not replace other background checks required 
for access authorization, personal security clearances, or SSNM access 
clearances.
    In paragraph (c), the NRC would designate the classes of 
facilities, radioactive material, and other property that are 
appropriate for firearms background checks. In general, the NRC intends 
that this list would be consistent with the list contained in Sec.  
73.18(c). However, the Commission would not be constrained to make 
these lists identical. The NRC would apply these requirements to two 
classes of facilities in this rulemaking: (1) Power reactor facilities, 
and (2) Category I SSNM facilities authorized to possess or use a 
formula quantity or greater of SSNM, where the SSNM has a radiation 
level of less than or equal to 1 Gy (100 Rad) per hour at a distance of 
1 m (3.28 ft), without regard to any intervening shielding.
    In paragraph (d), the NRC would describe the components of a 
firearms background check. A firearms background check would consist of 
two parts: (1) A check of an individual's fingerprints against the 
FBI's fingerprint system; and (2) a check of the individual's identity 
against the FBI's 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.
    In paragraph (e), the NRC would describe the information that is to 
be submitted for each individual to conduct a firearms background check 
and would specify a retention period for this information.
    In paragraph (f), the NRC would describe the requirements for 
periodic (i.e., recurring) firearms background checks. Periodic 
firearms background checks would be required every 3 years. The NRC 
would use this interval to be consistent with the interval for 
recurring access authorization program criminal history records checks 
for power reactor security personnel under the recently added Sec.  
73.56(i)(1)(v)(B). The 3-year interval would permit licensees and 
certificate holders to reduce administrative costs. Licensees and 
certificate holders would also be able to conduct periodic firearms 
background checks at intervals of less than three years, if they so 
desire. The NRC would specify a timely submission period of three years 
and security personnel would be permitted to continue their access to 
covered weapons pending the licensee's or certificate holder's receipt 
of the NICS response. Similar to the requirements in paragraph (b), 
individuals who receive an adverse

[[Page 6221]]

firearms background check (during this periodic check) also would be 
removed from duties requiring access to covered weapons. These 
individuals would be eligible for reinstatement if they subsequently 
complete a satisfactory firearms background check.
    In paragraph (g), the NRC would describe the requirements for 
affected licensees and certificate holders to notify the NRC that an 
individual with access to covered weapons has been removed from these 
duties because of the discovery of a disqualification or the occurrence 
of a disqualification under applicable Federal or State law. An 
exception to this requirement would be created to encourage the prompt 
identification of such information by the security personnel to their 
licensee or certificate holder (i.e., the NRC would encourage security 
personnel to timely self disclose the occurrence of a disqualifying 
event).
    In paragraph (h), the NRC would describe the requirements for 
affected security personnel to make timely disclosure of the occurrence 
of a disqualifying event at 18 U.S.C. 922 that would prevent them from 
receiving or possessing firearms.
    Timely notification would be within 3 working days of occurrence of 
the event.
    The NRC would reserve paragraph (i) to avoid confusion.
    In paragraph (j), the NRC would describe the requirements for 
training security personnel on the following: (1) Disqualifying events 
of 18 U.S.C. 922; (2) ATF's implementing regulations; and (3) security 
personnel's responsibility to notify their licensee or certificate 
holder under the requirements of paragraph (h).
    In paragraph (k), the NRC would describe the requirements for 
processing fingerprint checks as part of firearms background checks. 
This would include the submission of fingerprint cards to the NRC or 
the submission of electronic fingerprint records to the NRC. The 
proposed language would be similar to the existing regulations in Sec.  
73.57(d). Additionally, licensees and certificate holders would be 
required to include specific codes on the FBI Form FD-258 fingerprint 
cards or electronic fingerprint records to indicate whether the 
fingerprint check is solely for the purposes of a firearms background 
check or whether the firearms background check is being combined with 
an access authorization criminal history records check or a personnel 
security clearance records check. The use of these codes is necessary 
for the FBI to appropriately control dissemination of criminal history 
information. The NRC would reserve paragraph (l) to avoid confusion.
    In paragraph (m), the NRC would describe the requirements for fees 
associated with processing firearms background checks. The NRC would 
charge the same fee for fingerprints submitted for a firearms 
background check that 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 language would be similar to the existing 
regulations in Sec.  73.57(d). The cost of the fee will be specified on 
the NRC's public Web site with the existing fingerprint fee (see NRC 
Web page http://www.nrc.gov/site-help/e-submittals.html under the 
``Electronic Submittals System Notices'' box). The NRC is proposing a 
fee of $26 to process both the NICS check information and the 
fingerprint checks per individual. This fingerprint processing fee is 
separate from the fingerprint processing fee for fingerprints submitted 
to complete a criminal history records check under the NRC's access 
authorization programs (e.g., Sec.  73.56 for power reactors). Further 
information on proposed costs is contained in Section XIV, ``Regulatory 
Analysis,'' of this document.
    In paragraphs (n) and (o), the NRC would describe obligations of 
the NRC regarding the processing of firearms background checks and 
reporting potential or suspected violations of law to the appropriate 
law enforcement agency. Under paragraph (o), the NRC would forward 
licensee and certificate holder notifications to the applicable Federal 
or State law enforcement officials.
    In paragraph (p), the NRC would describe how individuals who have 
received an adverse firearms background check (i.e., a ``denied'' or 
``delayed'' NICS response) may do the following: (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). Individuals appealing an adverse firearms background check 
would not be permitted access to covered weapons during the pendency of 
the appeal. 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. The 
exception to this limitation would occur during the 180-day transition 
period described in paragraph (b) for individuals who receive a 
``delayed'' NICS response. To support effective use of FBI resources, 
timeliness requirements would be specified for individuals wishing to 
appeal an adverse firearms background check they believe is incorrect. 
An individual who fails to initiate a timely appeal or resolution 
request or provide information in response to an FBI request would 
result in the barring or abandonment of the appeal or request. 
Subsequent to a barring or abandonment action, a licensee or 
certificate holder would be permitted to resubmit the individual for a 
new firearms background check for any further consideration by the FBI. 
This resubmission would be at the discretion of the licensee or 
certificate holder. Finally, individuals who have successfully appealed 
a ``denied'' NICS response would be able to request that the FBI retain 
those records under the FBI's VAF program. Except for VAF records, the 
FBI purges the results of all NICS checks after 30 days (as required by 
the statute establishing the NICS program).
    In paragraph (q), the NRC would describe how licensees and 
certificate holders must protect personal identification information 
associated with firearms background checks and NRC Forms 754, as well 
as the results of firearms background checks, from unauthorized 
disclosure. This proposed language is similar to the current 
regulations in Sec.  73.57(f) regarding the protection of criminal 
history record check information.

F. Fixed Site Physical Protection Systems, Subsystems, Components, and 
Procedures (Sec.  73.46)

    In paragraph (b)(13), the NRC would add a conforming change to 
provide a cross reference to the new firearms background check 
requirements in Sec.  73.19 for armed security personnel. Additionally, 
the NRC would provide implementation schedule information for future 
licensees.

[[Page 6222]]

G. Requirements for Physical Protection of Licensed Activities in 
Nuclear Power Reactors Against Radiological Sabotage (Sec.  73.55)

    In paragraph (b)(12), the NRC would add a conforming change to 
provide a cross reference to the new firearms background check 
requirements in Sec.  73.19 for armed security personnel. Additionally, 
the NRC would provide implementation schedule information for future 
licensees.

H. Reporting and Recording of Safeguards Events (Sec.  73.71)

    Overall, the NRC would revise Sec.  73.71 to apply imminent or 
actual hostile action notifications to additional significant 
facilities (i.e., Category I SSNM facilities), to significant 
transportation events (i.e., the shipment of SNF, HLW, and Category I 
SSNM), and to significant cyber attacks on power reactors. 
Additionally, the NRC would revise Sec.  73.71 to accomplish the 
following: (1) Add regulatory clarity; (2) improve the structure 
through increased parallelism between facility and transportation 
notifications; and (3) add notifications for stolen or lost enhanced 
weapons and adverse ATF inspection findings.
    In paragraph (a), the NRC would require licensees and certificate 
holders for power reactor facilities and Category I SSNM facilities to 
notify the NRC within 15-minutes of discovery of an imminent or actual 
hostile action or the initiation of a security response in accordance 
with the licensee's or certificate holder's safeguards contingency plan 
due to an imminent or actual hostile action. The NRC would describe the 
abbreviated set of information to be initially provided to the NRC. The 
NRC recognizes that licensees and certificate holders would be very 
busy in these circumstances and requires a minimal set of information 
to execute the NRC's strategic communication responsibilities. 
Additionally, the NRC would recognize that the licensee or certificate 
holder should make requests for immediate assistance from a local law 
enforcement agency (LLEA) before notifying the NRC. Finally, the NRC 
would relocate the language to not require licensee notifications to 
the NRC regarding an increase in its security posture which was made in 
response to an NRC communication from original proposed Appendix G to 
part 73, paragraph I(b) to this revised paragraph. This relocation 
would reduce duplication of requirements and continue the proposed 
elimination of unnecessary notifications.
    In paragraph (b), the NRC would require similar 15-minute 
notifications for certain transportation events. This would apply to an 
imminent or actual hostile action or the initiation of a security 
response in accordance with the licensee's or certificate holder's 
safeguards contingency plan, due to an imminent or actual hostile 
action against shipments of SNF, HLW, and Category I SSNM. A similar 
abbreviated set of information would be initially provided to the NRC 
for these transportation events and similar redundancy language would 
be included. The NRC would recognize that the licensee or certificate 
holder should request immediate assistance from LLEA before notifying 
the NRC.
    In paragraph (c), the NRC would require one-hour notifications from 
licensees or certificate holders for facility-based events listed in 
revised proposed paragraph I to Appendix G to part 73. This would 
affect licensees and certificate holders of fuel cycle facilities 
authorized to possess and use Category I quantities of SSNM, Category 
II and Category III quantities of SNM, hot cell facilities, ISFSIs, 
MRSs, GROAs, power reactor facilities, production reactor facilities, 
and research and test reactor facilities. Notifications made under 
revised proposed paragraph (a) for imminent or actual hostile acts 
against facilities would not be required to be repeated under this 
paragraph.
    In paragraph (d), the NRC would require one-hour notifications from 
licensees or certificate holders for transportation-based events listed 
in revised proposed paragraph I to Appendix G to part 73. This would 
affect licensees' and certificate holders' activities involving the 
transportation of Category I quantities of SSNM, SNF, HLW, and Category 
II and Category III quantities of SNM. Notifications made under 
proposed paragraph (b) for imminent or actual hostile acts against 
shipments would not be required to be repeated under this paragraph.
    In paragraph (e), the NRC would require four-hour notifications 
from licensees or certificate holders for facility-based events listed 
in revised proposed paragraph II to Appendix G to part 73. This would 
affect licensees and certificate holders of fuel cycle facilities 
authorized to possess and use Category I quantities of SSNM, Category 
II and Category III quantities of SNM, hot cell facilities, ISFSIs, 
MRSs, GROAs, power reactor facilities, production reactor facilities, 
and research and test reactor facilities.
    In paragraph (f), the NRC would require eight-hour notifications 
from licensees or certificate holders for facilities-based events 
listed in revised proposed paragraph III to Appendix G to part 73. This 
would affect licensees and certificate holders of fuel cycle facilities 
authorized to possess and use Category I quantities of SSNM, Category 
II and Category III quantities of SNM, hot cell facilities, ISFSIs, 
MRSs, GROAs, power reactor facilities, production reactor facilities, 
and research and test reactor facilities.
    In paragraph (g), the NRC would require one-hour or four-hour 
notifications by licensees or certificate holders (i.e., power reactor 
licensees and Category I SSNM licensees) who possess enhanced weapons 
under section 161A of the AEA, and discover that these weapons are 
stolen or lost. The one-hour notification would result from weapons 
that are discovered to be stolen or lost from inside of a PA, VA, MAA, 
or CAA. The four-hour notification would result from weapons that are 
discovered to be stolen or lost from outside of a PA, VA, MAA, or CAA. 
The shorter notification is based upon the potential for weapons lost 
or stolen inside a PA, VA, MAA, or CAA to affect the security of the 
facility (i.e., an insider threat issue). The timing of a four-hour 
notification would start from the licensee's notification to ATF. The 
NRC notes that licensees and certificate holders possessing enhanced 
weapons have an independent responsibility under ATF's regulations to 
immediately upon discovery report such stolen or lost enhanced weapons 
to ATF (see 27 CFR 479.141). Additionally, the NRC would require such 
licensees and certificate holders to notify local law enforcement as 
soon as possible, but no later than 48 hours after discovery of stolen 
or lost enhanced weapons. The 48 hour requirement is consistent with 
current ATF requirements for notifying local law enforcement of stolen 
or lost weapons.
    In paragraph (h), the NRC would require a 24-hour notification from 
licensees or certificate holders who meet the following criteria: (1) 
They possess enhanced weapons per section 161A of the AEA; (2) they 
receive an adverse inspection or enforcement finding from ATF regarding 
any enhanced weapons possessed, received, stored, or transferred by the 
licensee or the certificate holder; or (3) they receive an adverse 
inspection or enforcement finding regarding a Federal firearms license 
held by the NRC-licensee or certificate holder. Paragraph (i) would be 
reserved to avoid confusion.
    In paragraph (j), the NRC would describe the notification process 
for telephonic notifications required under paragraphs (a) through (h). 
The

[[Page 6223]]

applicability of the exception for exigent or emergency safeguards 
communications would be continued using the cross reference to the 
Protection of Safeguards Information final rule (October 24, 2008; 73 
FR 63545). A provision would be added to address classified 
notifications under this section from licensees or certificate holders 
with classified security plans. Clarification would be provided as to 
when licensees or certificate holders need to able to respond to NRC 
requests to establish a continuous communication channel following a 
15-minute notification that provides for the following: (1) The 
completion of other critical tasks (e.g., declaration of an emergency 
or contacting local law enforcement); and (2) communicator staff 
requirements (i.e., the use of knowledgeable security, operations, or 
emergency response personnel from a location of the licensee's or 
certificate holder's discretion).
    In paragraph (k), the NRC would require that a safeguards event log 
be maintained for the events described in paragraph IV of Appendix G to 
part 73. This would affect licensees and certificate holders of fuel 
cycle facilities authorized to possess and use Category I quantities of 
SSNM, Category II and Category III quantities of SNM, hot cell 
facilities, ISFSIs, MRSs, GROAs, power reactor facilities, production 
reactor facilities, and research and test reactor facilities. This 
would affect licensees' and certificate holders' activities involving 
the transportation of Category I quantities of SSNM, SNF, HLW, and 
Category II and Category III quantities of SNM. Events recorded in the 
safeguards log must be entered within 24 hours of discovery and 
retained until 3 years after the last entry in each log or termination 
of the license or certificate of compliance.
    Paragraph (l) would be reserved to avoid confusion.
    In paragraph (m), the NRC would describe the form and content of 
written follow-up reports following telephonic notifications required 
by Sec.  73.71(a) through (g). The NRC also would provide new language 
to obviate the requirement for a written follow-up report if the 
licensee or certificate holder retracts the initial telephonic 
notification. However, if a written follow-up report has already been 
submitted, then licensees and certificate holders would be required to 
submit a revised written report to ensure that the NRC's official 
records are correct.
    In paragraph (n), the NRC would clarify that notifications made 
under the declaration of an emergency are covered under other 
regulations in 10 CFR chapter 1 applicable to the license or 
certificate of compliance.
    In paragraph (o), the NRC would provide for the elimination of 
duplicate notifications or records under this section relative to other 
event notifications required under 10 CFR chapter 1 (i.e., a single 
report or record may be made that lists all of the applicable reporting 
or recording requirements)

I. Criminal Penalties (Sec.  73.81)

    The NRC would not make any conforming changes to Sec.  73.81(b), 
``Criminal Penalties,'' due to the addition of new Sec. Sec.  73.18 and 
73.19 to part 73. Consequently, willful violations of Sec. Sec.  73.18 
and 73.19 may be subject to criminal penalties. Therefore, proposed 
Sec. Sec.  73.18 and 73.19 would not be included in the list of 
sections from part 73 contained in Sec.  73.81(b). See Section VII, 
``Criminal Penalties,'' of this document for further information.

J. U.S. Nuclear Regulatory Commission Offices and Classified Mailing 
Addresses (Appendix A to Part 73)

    The NRC would make administrative, conforming, and editorial 
changes to Appendix A to part 73. The NRC is proposing to make 
administrative changes in Table 1, including: updating the main 
(nonsecure) e-mail address, adding a secure e-mail address, and 
removing previously used telephone number for the NRC Headquarters 
Operations Center. Editorial changes would be made to the titles of 
Tables 1 and 2 to refer to the table number to improve clarity. 
Finally, new paragraphs III and IV would be added to Appendix A to part 
73 as conforming changes to provide direction to licensees and 
certificate holders regarding classified telephone calls and sending 
classified e-mails to the NRC for classified event notifications under 
Sec.  73.71.

K. General Criteria for Security Personnel (Appendix B to Part 73)

    In section I.A, the NRC would make a conforming change to update 
the employment suitability language to reflect the statutory 
requirements for possession of firearms under 18 U.S.C. 922. This would 
be consistent with the recently added language in Section VII.B, 
``Criminal Penalties,'' of this document.

L. Reportable and Recordable Safeguard Events (Appendix G to Part 73)

    The NRC is proposing additional conforming and corrective changes 
to Appendix G to part 73, from the language presented in the October 
2006 proposed rule. The introductory text and paragraph I would be 
revised to include Category I SSNM facilities. The requirements for 15-
minute notifications (in the October 2006 proposed Appendix G to part 
73) in paragraph I would be relocated to Sec.  73.71 and paragraphs II 
and III would be redesignated as paragraphs I and II, respectively. New 
paragraph III would be added to address unauthorized operation or 
tampering events that do not impact the operation of the facility. 
Paragraph IV would remain to address recordable events. Information on 
the applicability of the NRC's proposed security event notification 
(both reporting and recording requirements) specified under in Appendix 
G to individual classes of NRC-regulated facilities and activities is 
described in Sec.  73.71. See also Section V.H above.
    In paragraph I, the NRC would describe the types of facility-based 
and transportation-based security events that would require a one-hour 
notification per Sec.  73.71. These events would include the following: 
(1) Committed acts and attempted acts; (2) threats to commit certain 
acts involving theft or diversion of SNM; (3) significant physical 
damage to a facility or shipment; (4) unauthorized operation, 
mispositioning, or tampering with controls or SSCs that results in the 
interruption in the normal operation of a facility; (5) unauthorized 
entry of personnel into a PA, VA, MAA, or CAA, or transport; (6) 
malevolent attempted entry of personnel into a PA, VA, MAA, CAA, or 
transport vehicle or transported material; (7) actual or attempted 
entry of contraband into a PA, VA, MAA, CAA, or transport vehicle or 
transported material; (8) actual or attempted introduction of 
explosives or incendiaries beyond a vehicle barrier system; (9) an 
uncompensated vulnerability, failure, or degradation of security 
systems that could allow unauthorized access of personnel or 
contraband; (10) a lost shipment of Category I SSNM, Category II or III 
SNM, SNF, or HLW; or (11) the recovery or accounting for a lost 
shipment. Modifying language referring to ``credible'' threats would be 
removed. (The NRC views the determination of whether a threat is 
credible or not appropriately rests with government officials, such as 
the NRC, the intelligence community, or an LLEA; rather than with the 
licensee or certificate holder.) Additionally, the NRC would require 
one-hour notifications from nuclear power facilities of the 
determination of an actual cyber attack or if there is reason to 
believe that a cyber attack has

[[Page 6224]]

occurred or has been attempted on systems, networks, or equipment 
within the scope of Sec.  73.54 or against security measures that 
protect those networks or equipment.
    In paragraph II, the NRC would describe types of facility-based 
events that would require a four-hour notification per Sec.  73.71. 
These events would include suspicious activities involving the 
following: (1) Potential attempted surveillance, reconnaissance, 
intelligence-gathering acts against the facility; (2) challenges to 
security control systems and processes; (3) unauthorized operation, 
mispositioning, or tampering with controls or SSCs that does not result 
in the interruption of the normal operation of the facility; (4) 
notification of law enforcement officials in accordance with the 
licensee's or certificate holder's security program (that does not 
otherwise require a notification under the other provisions of Appendix 
G to part 73); or (5) a law enforcement response to the facility which 
could reasonably be expected to result in public or media inquires 
(that does not otherwise require a notification under the other 
provisions of Appendix G to part 73). However, this would not include 
commercial or military aircraft activity over or close to the facility 
that is considered routine or non-threatening by the licensee or 
certificate holder. Additional information on follow-up communications 
with the NRC's Information Assessment Team regarding suspicious event 
notifications also would be provided.
    Additionally, the NRC would require four-hour notifications from 
nuclear power facilities if licensee obtains or gathers information 
that indicates tampering, unauthorized access, use or modifications, or 
unauthorized gathering of information or data of systems has occurred 
or is occurring on networks, or equipment within the scope of Sec.  
73.54 or to the security measures that protect these safety, security, 
or emergency preparedness functions of nuclear power facilities are 
degraded.
    In paragraph III, the NRC would describe types of facility-based 
events that would require an eight-hour notification per Sec.  73.71. 
These events would include unauthorized operation, mispositioning, or 
tampering with controls or SSCs that that could prevent the 
implementation of the licensee's or certificate holder's protective 
strategy for protecting any target set. Additionally, the NRC would 
require eight-hour notifications from nuclear power reactor facilities 
if a licensee detects an unauthorized operation or manipulation of, or 
tampering with networks, or equipment within the scope of Sec.  73.54 
or the security measures that protect such networks and equipment, but 
such actions did not interrupt or degrade the nuclear power reactor 
facility's safety, security, or emergency preparedness functions.
    In paragraph IV, the NRC would describe types of facility-based and 
transportation-based events that would require an entry in the 
safeguards event log per Sec.  73.71. These events would include a 
compensated vulnerability, failure, or degradation of security systems 
that except for the compensatory actions could have allowed 
unauthorized access of personnel or contraband beyond a vehicle barrier 
or into a PA, VA, MAA, CAA, or transport; of a threatened, committed, 
or attempted act that would degrade the licensee's or certificate 
holder's committed physical protection program. Additionally, these 
events include (1) any other threatened, attempted, or committed act 
not previously defined in Appendix G that has resulted in or has the 
potential for decreasing the effectiveness of the security program 
including cyber security program or (2) any failure, degradation, or 
the discovered vulnerability in a security measure, system, component 
had compensatory measures not been established or employed, that could 
degrade the effectiveness of protecting any systems, networks, or 
equipment described in Sec.  73.54. The NRC also would indicate that 
events that are reported as telephonic notifications do not require an 
entry in the safeguards event log.

M. Armed Security Personnel Background Check (NRC Form 754)

    The NRC is proposing editorial changes to NRC Form 754 to increase 
clarity in the assisting notes and explanatory text. These changes 
would be consistent with the August 2008 version of similar ATF Form 
4473. The NRC is also proposing a change to Question 4 to NRC Form 754 
to (1) eliminate the address of a security individual's duty station 
and only specify the applicable State or Territory; and (2) permit the 
inclusion of multiple States or Territories where the individual 
routinely conducts official duties requiring access to covered weapons 
at multiple duty station locations or escorts shipments of radioactive 
material or other property across multiple States. The NRC is also 
proposing to delete Question 13 (State of Residence), since this 
question is now redundant with the information requested in Question 3 
(Current Residence Address). Accordingly, Questions 14 through 18 would 
be redesignated as Questions 13 through 17, respectively. The NRC is 
also proposing to revise paragraph 4 of the Privacy Act Information 
summary (on page 3 of the form) to indicate that the submission of 
information on NRC Form 754 would be mandatory for certain security 
personnel at NRC-regulated facilities.

VI. Guidance

    The NRC is preparing a new draft regulatory guide (DG-5020) (NRC-
2011-0015) that will contain detailed guidance on the implementation of 
the proposed requirements on applying for enhanced weapons and 
conducting firearms background checks. The draft regulatory guide will 
be made available for public comment. The NRC will issue a final 
regulatory guide subsequent to the publication of a final rule. The NRC 
also has developed a guidance document to assist licensees and 
certificate holders in completing the weapons safety assessment 
required as part of an application for enhanced weapons under Sec.  
73.18 (NRC-2011-0017).
    The NRC developed a draft regulatory guide (DG-5019) (NRC-2011-
0014) on event notifications that contained detailed guidance on the 
implementation of the changes in the October 2006 proposed rule to 
Sec.  73.71 and Appendix G to part 73. The NRC published draft 
regulatory guide DG-5019 for public comment on July 6, 2007 (72 FR 
37058). The NRC also held a public meeting to discuss the draft 
regulatory guide on July 27, 2007. However, the NRC has made 
substantive changes to DG-5019 to reflect the new notification 
requirements for stolen or lost enhanced weapons and the further 
changes to Sec.  73.71 and Appendix G to part 73 discussed in this 
proposed rule. Because of the scope of these proposed changes to the 
event notification regulations, the NRC intends to issue a Revision 1 
to DG-5019 for further public comment and will hold an additional 
public meeting to discuss Revision 1 to DG-5019. The NRC will issue a 
final regulatory guide (Revision 2 to RG 5.62) subsequent to the 
publication of a final rule.
    The NRC has determined that public and stakeholder access to these 
draft guidance documents is not necessary to provide informed comments 
on this proposed rule.

VII. Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act of 1954 
(AEA), as amended, the Commission is proposing to amend 10 CFR part 73 
under Sections

[[Page 6225]]

161b, 161i, or 161o of the AEA. Criminal penalties, as they apply to 
regulations in part 73, are discussed in Sec.  73.81. The new 
Sec. Sec.  73.18 and 73.19 are issued under Sections 161b, 161i, or 
161o of the AEA. Violations of these new sections are subject to 
possible criminal penalties; and therefore they are not included in 
Sec.  73.81(b).

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 Category ``NRC''; and 
new Sec. Sec.  73.18 and 73.19 are designated as Category ``NRC'' 
regulations. 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 10 CFR, 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

    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 Agency Wide 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's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
[email protected].
    Federal rulemaking Web site: Public comments and supporting 
materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID: NRC-2011-0018.
    The NRC is making the documents identified below available to 
interested persons through one or more of the following methods as 
indicated

------------------------------------------------------------------------
              Document                   PDR       Web      ERR (ADAMS)
------------------------------------------------------------------------
Firearms Guidelines.................        X         X      ML082560848
Environmental Assessment (October           X         X      ML061920093
 2006 proposed rule)................
Regulatory Analysis.................        X         X      ML061380803
Regulatory Analysis--appendices       ........  ........     ML061380796
 (October 2006 proposed rule).......
                                      ........  ........     ML061440013
Information Collection Analysis.....        X         X      ML092640277
NRC Form 754........................        X         X      ML092650459
Commission: SECY-08-0050 (April 17,         X         X      ML072920478
 2008)..............................
Commission: SECY-08-0050A (July 8,          X         X      ML081910207
 2008)..............................
Commission: SRM-SECY-08-0050/0050A          X         X      ML082280364
 (August 15, 2008)..................
Letter opinion from ATF's Office of         X         X      ML090080191
 Enforcement on the transfer of
 enhanced weapons (January 5, 2009).
------------------------------------------------------------------------

X. Plain Language

    The Presidential memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing'' directed that the Government's writing 
be in plain language. This memorandum was published on June 10, 1998 
(63 FR 31883), in the Federal Register. In complying with this 
directive, the NRC made editorial changes to improve the organization 
and readability of the existing language of the paragraphs being 
revised. These types of changes are not discussed further in this 
document. The NRC has used the phrase ``may not'' throughout this 
proposed rule to indicate that a person or entity is prohibited from 
taking a specific action. 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 address listed under the 
ADDRESSES caption.

XI. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 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. In this proposed rule, the 
NRC proposes to use standards from applicable firearms standards 
developed by nationally-recognized firearms organizations or standard 
setting bodies or from 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. The NRC invites comment on 
the applicability and use of these and other standards.
    As discussed in Section VI, ``Guidance,'' of this document, the NRC 
also intends to issue for public comment draft Regulatory Guides DG-
5019 (NRC-2011-0014) and DG-5020 (NRC-20011-0015) that would provide 
implementing information to licensees and certificate holders. DG-5020 
would include references to U.S. government manuals that have been 
developed for the training and deployment of machine guns.
    The NRC has determined that public and stakeholder access to these 
draft guidance documents is not necessary to provide informed comments 
on this proposed rule.

XII. Finding of No Significant Environmental Impact

    In the proposed rule published on October 26, 2006, the Commission 
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 the proposed rule, if adopted, would not be a major Federal 
action significantly affecting the quality of the human environment 
and, therefore, an environmental impact statement is not required.
    The determination of the environmental assessment in this proposed 
rule is that there will be no significant offsite impact to the public 
from this action. Availability of the environmental assessment is 
provided in Section IX, ``Availability of Documents,'' of this 
document.

[[Page 6226]]

Accordingly, because of the nature of the changes to the firearms 
background checks and enhanced weapons provisions presented in this 
proposed rule, the assumptions in the October 2006 proposed rule are 
not changed so the Commission is not seeking additional comments on the 
environmental assessment.
    The NRC sent a copy of the environmental assessment and the October 
26, 2006, proposed rule to every State Liaison Officer and requested 
their comments on the environmental assessment.

XIII. Paperwork Reduction Act Statement

    This proposed rule contains new or amended information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501, et seq.). This proposed rule has been submitted to the 
Office of Management and Budget for review and approval of the 
information collection requirements.
    1. Type of submission, new or revision: Revision and new.
    2. The title of the information collection: 10 CFR part 73, 
``Enhanced Weapons, Firearms Background Checks, and Security Event 
Notifications'' proposed rule, and NRC Form 754, ``Armed Security 
Personnel Background Check.''
    3. The form number, if applicable: NRC Form 754.
    4. How often the collection is required: One time for power reactor 
licensees and Category I SSNM licensees applying for combined enhanced 
weapons authority. Initial submissions of NRC Form 754 will be required 
for all of their security personnel whose duties require access to 
covered weapons; thereafter, recurring firearms background checks and 
completion of NRC Form 754 will be required once every three years. New 
records requirements are imposed to document enhanced weapon inventory 
requirements, monthly and semiannually. As needed, licensees will 
report removals of security personnel, discovery of a stolen or lost 
enhanced weapon, and security events. For certain security events, 
follow-up reports are required within 60 days.
    5. Who will be required or asked to report: The proposed NRC Form 
754 and event notification changes affect operating nuclear power 
reactors located at 65 sites, 15 decommissioning power reactor sites, 
and 2 fuel cycle facilities authorized to possess Category I SSNM. 
Security event notifications under different sections of Sec.  73.71 
could also affect 42 research and test reactor (RTR) sites, 6 Category 
II and II SNM sites, 60 Independent Spent Fuel Storage Installation 
(ISFSI) sites, 2 hot cell sites, and 3 other reactor sites. Security 
personnel must report to their management any event disqualifying them 
from possessing enhanced weapons.
    6. An estimate of the number of annual responses: 16,685 responses 
[10 CFR part 73: 7,966 (7,771 response plus 195 recordkeepers); NRC 
Form 754: 8,719 (8,637 responses plus 82 recordkeepers)].
    7. The estimated number of annual respondents: 206 (65 sites power 
reactor sites, 15 decommissioning power reactor sites, 2 fuel cycle 
facilities, 42 research and test reactors sites, 6 Category II and II 
SNM sites, 60 Independent Spent Fuel Storage Installation sties, 2 hot 
cell sites, 3 other reactor sites, plus 11 third party security 
personnel respondents).
    8. An estimate of the total number of hours needed annually to 
complete the requirement or request: 161,884 hours [10 CFR part 73: 
150,459 (130,113 reporting hours plus 20,299 recordkeeping hours plus 
47 third party notifications); NRC Form 754: 11,425 hours (8,637 
reporting hours plus 2,788 recordkeeping hours)].
    Abstract: The NRC is proposing to amend the current security 
regulations and add new security requirements pertaining to nuclear 
power reactors and Category I SSNM facilities for access to enhanced 
weapons and firearms background checks. The proposed rulemaking would 
fulfill certain provisions of the Energy Policy Act of 2005 and add 
several new requirements to event notification 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.
    The NRC is seeking public comment on the potential impact of the 
information collections contained in this proposed rule and on the 
following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility?
    2. Estimate of burden?
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the information collection be minimized, 
including the use of automated collection techniques?
    A copy of the OMB clearance package may be viewed free of charge at 
the NRC PDR, One White Flint North, 11555 Rockville Pike, Room O1-F21, 
Rockville, MD 20852. The OMB clearance package and rule are available 
at the NRC Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 30 days after the signature date of this document. These 
documents are also available at: http://www.regulations.gov under 
Docket ID (NRC-2011-0018). Documents may be viewed and downloaded 
electronically.
    Send comments on any aspect of these proposed regulations related 
to information collections, including suggestions for reducing the 
burden and on the above issues, by March 7, 2011 to the Information 
Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, or by Internet electronic mail to 
[email protected] and to the Desk Officer, Ms. Christine 
Kymm, Office of Information and Regulatory Affairs, NEOB-10202 (3150-
0002 and 3150-0204), Office of Management and Budget, Washington, DC 
20503. Comments on the proposed information collections may also be 
submitted via http://www.regulations.gov, Docket ID NRC-2011-0018. 
Comments received after this date will be considered if it is practical 
to do so, but assurance cannot be given to comments received after this 
date. You may also e-mail comments to [email protected] 
or comment by telephone at 202-395-4638.

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 NRC had prepared a draft regulatory analysis for the original 
proposed rule published on October 26, 2006 (see Section IX, 
``Availability of Documents,'' of this document). The analysis examined 
the costs and benefits of the Implementation of section 161A of the 
AEA, proposed by the NRC at that time. Given that the NRC is required 
to comply with this statute, the regulatory analysis is provided in 
this case more for informational purposes rather than as a tool for 
decision-makers, which is its customary role.
    The NRC is now taking action to conform implementing regulations to 
the firearms guidelines issued by the Commission, with the approval of 
the

[[Page 6227]]

U.S. Attorney General. Many of the requirements identified in this 
revised proposed rule were identified in the original proposed rule. 
However, for the sake of completeness in this regulatory analysis, the 
staff is providing cost and benefit estimates for the proposed changes 
to Sec. Sec.  73.18, 73.19, and 73.71 and Appendices A and G to part 
73. The NRC considers the costs and benefits associated with applying 
for enhanced weapons to be unchanged from that described in the draft 
regulatory analysis, as the plans and analysis that are required to 
accompany an application have not changed. However, additional 
requirements have been added to the proposed Sec.  73.18 that involve 
recordkeeping or reporting burdens. These include: Periodic inventories 
of enhanced weapons under paragraph (n), notifications to the NRC and 
local law enforcement of stolen or lost enhanced weapons under 
paragraph (o), and record keepings under paragraph (p). These proposed 
regulations are required to be consistent with the issued firearms 
guidelines. Additionally, the proposed regulation would require a 
licensee or certificate holder to notify the NRC of a licensee's or 
certificate holder's receipt of adverse ATF findings under paragraph 
(j). This notification would permit the NRC to effectively respond to 
any public or press inquires related to the adverse ATF findings at NRC 
licensees possessing enhanced weapons. Additional recordkeeping and 
reporting burdens have also been added to Sec.  73.19 that include 
periodic firearms background checks under paragraph (f). Finally, 
additional recordkeeping and reporting burdens have been added to the 
proposed changes to Sec.  73.71 and Appendix G. These include imminent 
or actual hostile acts under paragraphs (a) and (b), suspicious 
activities under paragraph II, and cyber events under paragraphs I, II, 
and III. This regulatory analysis was developed following the guidance 
contained in NUREG/BR-0058, ``Regulatory Analysis Guidelines of the 
U.S. Nuclear Regulatory Commission,'' Revision 4, issued September 
2004.

1. Statement of the Problem and Objective

    The information generally contained in this portion of the 
regulatory analysis may be found earlier in this document in Sections 
II, ``Background,'' and III, ``Discussion.''

2. Identification and Analysis of Alternative Approaches to the Problem

    Because this rulemaking is in response to the statutorily mandated 
provisions of the new section 161A of the AEA and the direction 
provided by the firearms guidelines issued by the Commission, with the 
approval of the U.S. Attorney General (see 74 FR 46800; September 11, 
2009), there are no acceptable alternatives to the proposed rulemaking. 
Licensee application for enhanced weapons authority and preemption 
authority under section 161A is voluntary; however, licensee compliance 
with the firearms background checks under section 161A is mandatory for 
certain designated classes of licensees. Consequently, the no-action 
option is used only as a basis against which to measure the costs and 
benefits of the proposed rule.

3. Estimation and Evaluation of Values and Impacts

    In general the parties that would be affected by this proposed rule 
are the licensees (there is no impact on applicants since they are not 
subject to the firearms background check requirements), the NRC, the 
public surrounding the plants, the on-site employees of the licensees, 
the FBI, and the ATF.
    The following attributes are expected to be affected by this 
rulemaking. Their impacts are quantified where possible. Impacts to 
accident-related attributes are qualified because estimates of 
occurrences of possible attacks and their successful repulsions are 
unknown. Further, even if reliable estimates were available, they would 
be considered Safeguards Information and not to be released for public 
dissemination.
     Safeguards and Security Considerations--The proposed 
actions regarding access to enhanced weapons and mandatory firearms 
background checks will provide high assurance that the common defense 
and security will be enhanced because of licensees' increased ability 
to repulse an attack and to comply with statutory requirements.
    The proposed actions regarding security event notifications will 
increase the NRC's ability to respond to security events and to 
effectively monitor ongoing licensee actions and inform other licensees 
in a timely manner of security-significant events and thus protect 
public health and safety and the common defense and security.
     Industry Implementation--The proposed rule would require 
licensees and certificate holders to subject their security personnel 
to a finger-print based background check and a firearms background 
check against the NICS. Requirements on security event notifications 
were also updated. Also, the rule would give licensees in Commission-
designated classes of facilities the option to apply for combined 
enhanced weapons authority and preemption authority or standalone 
preemption authority. If a licensee is so inclined, it must submit 
plans and analysis to the NRC on their proposed deployment of enhanced 
weapons. The NRC must then act on approving the request or not. 
Following NRC approval, such a licensee would apply to ATF to transfer 
the authorized enhanced weapons to its facility. Industry would, of 
course, need to develop procedures to comply with these requirements.
    For purposes of analysis, the NRC staff assumes that all licensees 
who fall within the proposed designated classes would take advantage of 
making use of enhanced weapons protection (i.e., 65 operating power 
reactor sites, 15 decommissioning power reactor sites, and 2 Category I 
SSNM facilities for a total of 82 facilities). The staff also assumes 
that it would take an individual site one-half staff year to develop 
the changes to the security, training and qualification, contingency 
response plans and security event notification reports and to develop 
the weapons safety assessment and submit these documents to the NRC for 
its review and approval. Next, the staff assumes that it would take an 
individual site one-quarter staff year to complete ATF paperwork, 
acquire the enhanced weapons, develop new training standards and then 
train security personnel, and deploy the weapons. The staff further 
assumes a weapons acquisition cost of $1000 per weapon for 50 weapons 
equaling $50,000 per individual site. The staff uses a value of 
$160,000 per staff year. Therefore, the staff estimates that an 
individual site's implementation cost for the voluntary enhanced 
weapons regulations would be sum of the values of: the half staff-year, 
the quarter staff-year, and the cost of the weapons or $170,000 
($80,000 + $40,000 + $50,000); and a total enhanced-weapons' 
implementation cost of $13,940,000 for the industry.\3\ Note: this cost 
analysis does not include any transfer tax payments required from a 
licensee to register an enhanced weapon with ATF under the National 
Firearms Act (26 U.S.C. chapter 53), since those costs fall under ATF's 
sole regulatory purview.
---------------------------------------------------------------------------

    \3\ Please note that throughout this paper sums may not equal 
shown total values because of rounding.
---------------------------------------------------------------------------

    NRC staff estimates that the costs to establish the program for 
accomplishing the mandatory firearms background checks would require 
two staff months per individual licensed facility. Therefore, the staff 
estimates that an

[[Page 6228]]

individual site's costs (excluding fees) for this task would be 
$26,700; and a total cost of $2,190,000 for the industry.
    NRC staff estimates that the total fees for the mandatory firearms 
background checks including the NICS check and the fingerprint check 
would be $26. The NRC staff also assumes that the completion of, and 
recordkeeping for each NRC form 754 for mandatory background checks 
would be equivalent to one staff-hour. The NRC staff assumes 150 
security officers per operating reactor and Category I SSNM facility 
and 75 officers for each decommissioning reactor and an hourly rate for 
industry security personnel of $50.
    This results in costs of $11,400 for each operating reactor and 
Category I SSNM facility and $5,700 for a decommissioning reactor site. 
This sums to total industry costs of $741,000 for all operating 
reactors and $22,800 for the two Category I SSNM facilities, and a 
decommissioning reactor industry cost of $85,500. Therefore, the 
overall total industry cost estimate for performing the first-time 
background checks is $849,000.
    When summed, the total implementation costs for obtaining enhanced 
weapons, establishing the program for accomplishing the mandatory 
firearms background checks, and completing the firearms background 
checks for an individual site range from $202,000 for the 
decommissioning sites to $208,000 for the operating reactor and 
Category I SSNM sites. The total industry implementation costs for 
operating reactors is $13,526,000; for Category I SSNM sites $416,000; 
and for decommissioning sites $3,036,000. The sum of the total industry 
implementation cost is $16,979,000.
     Industry Operation--Enhanced weapon Inventories' 
requirements of the proposed rule, both monthly and semi-annually would 
result in operating expenses for industry. The NRC staff estimates that 
the automatic weapons inventories would take a total of 1 staff day for 
the monthly inventories and a total of 2 staff days for the semi-annual 
inventories, for the two-person inventory team. A licensee does not 
have to do the monthly inventory (these are inventories not 
inspections) if they are doing the semi-annual check that month. 
Assuming an hourly rate for industry security personnel of $50, the NRC 
staff estimates that this requirement would result in an annual cost 
per site of $5,600 (i.e., $50/hr x [(8hrs/monthly-inventory x 10 
monthly-inventories/yr) + (16hrs/semi-ann-inventory x 2 semi-ann-
inventory/yr)]). Assuming all 65 operating power reactor sites, 15 
decommissioning reactor sites, and two Category I SSNM facilities 
decide to obtain enhanced weapons, this results in an industry annual 
cost of approximately $460,000. Based on the extended license 
expiration dates, the NRC staff assumes the average remaining life of 
operating reactors is 34 years. We also assume another 20 years in 
``SAFSTOR'' for a total of 54 years additional years. For the 15 
decommissioning reactors we assume an additional 20 years of life. 
Lastly, we assume an additional 50 years of life for the 2 Category I 
SSNM licensees. By type of licensee, the net present value (presented 
as individual cost/industry cost) using a 7 percent real discount rate 
are $72,000/$5,100,000 for operating reactors; $59,000/$890,000 for 
decommissioning reactors; and $77,000/$154,000 for Category I SSNM 
facilities. The corresponding values using a 3 percent real discount 
rate is calculated to be $149,000 per operating reactor or $9,674,000 
for all 65 reactors; $83,000 for each decommissioning reactor or 
$1,250,000 for all 15 sites; and $144,100 for each of the two Category 
I SSNM facilities or $288,174 for their total. Therefore, the total 
industry operating costs for the inventory requirements is the sum of 
the discounted flow of funds costs which is approximately $6.1 million 
using a 7 percent rate and $11.2 million using a 3 percent real rate.
    Also, the licensees need to comply with the mandatory recurring 
background checks. As mentioned in the Industry Implementation section 
above, the NRC staff estimates a one-time background-check cost of 
$11,400 per operating reactor. Recurring firearms background checks 
every 3 years would approximate an annualized cost of $3,800. 
Discounted over the assumed 34 remaining years of life of an operating 
reactor results in discounted flow values of $48,800 (7 percent) and 
$80,300 (3 percent). The NRC staff then assumed the operating reactors 
would have 20 years of life remaining as decommissioning reactors. At 
decommissioning reactors the calculated cost would be $5,700 per site, 
or $1,900 per year. This value discounted over the future years 35 
through 54 at a decommissioning site would be $1,840 (7 percent) and 
$9,670 (3 percent). Therefore, the total cost of background checks for 
a presently operating reactor is $50,680 (7 percent) and $90,000 (3 
percent). This corresponds to values for all operating reactors of 
$3,294,000 (7 percent) and $5,848,000 (3 percent).
    The discounted flow of funds value for background checks (assuming 
the $3,800 annualized cost) for the individual Category I SSNM 
licensees is $52,400 using the 7 percent rate and $97,800 using the 3 
percent discount rate. This corresponds to the Category I SSNM industry 
total of $104,900 (7 percent) and $195,500 (3 percent).
    Lastly, the discounted cost estimates for background checks for a 
decommissioning reactor are $20,100 (7 percent) and $28,300 (3 
percent). Total costs for all present decommissioning reactors are 
$301,900 (7 percent) and $424,000 (3 percent).
    The total discounted flow of funds for the industry to have the 
background checks performed is $3,401,000 
($3,294,000+$104,900+$301,900) using a 7 percent real discount rate. 
Using a 3 percent real discount rate provides a total industry cost of 
$6,468,000 ($5,848,000+$196,000+$424,000).
    With respect to the security event notification reporting 
requirements, this analysis presents combined cost estimates for both 
physical and cyber events for: Imminent or actual hostile action 
notifications, cyber and physical intrusions, suspicious activity 
notifications, unauthorized operation or tampering events (including 
cyber systems), and security logable events.
    The NRC staff estimates that for 65 operating reactor sites, 15 
decommissioning sites, and 2 Category I SSNM sites, each facility would 
make one imminent or actual hostile act notification every 10 years. 
This equates to a site-risk value of 0.1 per year. Further, the staff 
estimates that the proposed required initial communication with the NRC 
would take approximately 6 minutes, or 0.1 hours. The 2 hour open-line 
continuous communication channel requirement is, of course, assumed to 
take 2 staff-hours of time. Therefore, the annual cost per site may be 
expressed as 0.1/yr x [0.1hrs + 2hrs] = 0.21hrs/year. At the assumed 
professional level wage rate of $100/hr, this results in an annual cost 
of $21 per site.
    For the operating reactors, the annual industry cost is $1,365, for 
decommissioning reactors it is $315, and only $42 for the Category I 
SSNM facilities. When the annual costs are discounted over the average 
remaining lives of the various sites, the totals for operating reactors 
range from $19,000 (7 percent real discount rate) to $36,000 (3 
percent). For decommissioning reactors, the values range from $3,300 (7 
percent) to $4,700 (3 percent). For the two Category I facilities, the 
discounted flows of funds for the annual operating costs range from 
$600 (7 percent) to $1,000 (3 percent). Therefore, the total operating 
expenses for the imminent attack notification component of the

[[Page 6229]]

rule range from $22,900 (7 percent) to $41,700 (3 percent).
    For cyber and physical intrusions, the NRC staff assumes the 
following sites will be affected: (1) 82 operating, decommissioning, 
and Category I SSNM sites, (2) 42 operating and decommissioning 
research and test reactor (RTR) sites, (3) 3 other reactor sites, (4) 6 
Category II and Category III Special Nuclear Material Sites (SNM), (5) 
60 Independent Spent Fuel Storage Installations (ISFSI), and (6) 2 hot 
cell sites. This results in 195 affected licenses. The intrusions, 
which require a one hour notification time, are assumed by the NRC 
staff to occur on average once every 2 years, or at a rate of 0.5 per 
year. Further, the staff assumes that each event would require one hour 
of licensee staff time per event. Given the assumed professional level 
wage rate of $100/hr, this results in an annual cost of $50 per site. 
The discounted cost over the assumed life of an operating reactor and 
its additional time in SAFESTOR ranges from $700 (7 percent real 
discount rate) to $1300 (3 percent).
    The total industry costs are composed of the following. Operating 
reactors total cost estimates range from $45,000 (7 percent) to $86,000 
(3 percent). The Decommissioning Reactors range from $7,900 to $11,100. 
Category I's range from approximately $1,400 to $2,600. RTRs range from 
$28,000 to $48,000. Other sites estimates are $2,000 to $3,500. The 
Category II and III sites range from $4,000 to $6,900. The 2 Hot Cell 
sites estimated costs are from $1,300 to $2,300. The ISFSI's costs are 
estimated to range from $43,000 to $91,000. This results in an estimate 
for the total industry operating costs of from $132,000 (7 percent) to 
$252,000 (3 percent).
    For suspicious activity reports, the NRC staff assumes five reports 
per year, for each of the 195 licenses, which we assume would result in 
a 1 hour total response per report. This results in annual costs per 
site of $500. For operating reactors (including their time in 
SAFESTOR), the total costs range from $452,000 (7 percent) to $864,000 
(3 percent). Decommissioned reactors corresponding estimates run from 
$79,400 to $112,000. The 2 Category I SSNMs cost estimates range from 
$13,800 to $25,700, again showing the 7 percent value first, followed 
by the 3 percent estimate. The 42 Research and Test Reactors had 
industry total cost estimates of $280,000 to $485,000. The 3 other 
sites values were $20,000 to $34,700. The 6 Category II and III SNMs 
had approximately double those values at $40,000 to $69,300. The 2 hot 
cell sites incurred costs of $13,300 to $23,100. Lastly, the ISFSIs 
estimates ran from $427,000 to $906,000. The summed estimate for 
suspicious activity reports runs from $1,325,000 (7 percent) to 
$2,520,000 (3 percent).
    With respect to unauthorized operation or tampering events, the NRC 
staff assumes one event per year, per site, (for both physical and 
cyber events) and a 1 hour total response per event resulting in annual 
costs of $100 per site. Operating Reactors total cost estimates range 
from $90,400 (7 percent) to $173,000 (3 percent). Similar estimates for 
the decommissioning reactors range from $15,900 to $23,300. The 
Category I SSNMs were $2,800 to $5,100. Research and Test Reactors had 
estimates from $56,000 to $97,000. The 3 other sites' values ranged 
from $4,000 to $6,900. Category II and III SNM sites incurred estimates 
of $8,000 to $13,900. The hot cell sites ranged from $2,700 to $4,600. 
ISFSIs ranged from $85,300 to $181,200. Therefore the total industry 
operating expenses for unauthorized operation or tampering ranges from 
$265,000 (7 percent) to $504,000 (3 percent).
    For both requirements relating to enhanced weapons being lost or 
stolen and to adverse ATF findings, the NRC staff assumes an occurrence 
of once every 2 years or at a rate of 0.5 per year at the 82 sites. 
While these requirements differ as to time required to submit the 
report, all are assumed to require an hour of licensee staff time per 
event. Again, $100 per staff-hour is assumed as the wage rate that 
results in an annual cost of $50 per site. The resulting discounted 
cost over the assumed life of an operating reactor ranges from $700 (7 
percent real discount rate) to $1,300 (3 percent). For all 65 reactors 
that becomes $45,200 to $86,400. The corresponding values for the 15 
decommissioning reactors range from $8,000 to $11,100. Lastly, the 2 
Category I sites related values are $1,400 and $2,600. Therefore, these 
sum to ranges of $54,600 (7 percent) to $100,000 (3 percent).
    Finally, the NRC staff estimates the impact of the events requiring 
entry in the safeguards event log at 195 sites. The NRC staff assumes 
150 events requiring entry in the log per site, per year and that each 
entry requires 20 minutes of licensee staff time. Therefore, the annual 
cost per site is $5,000 and $975,000 for the industry. Total costs 
resulting from this requirement are estimated to be from $13,250,000 (7 
percent real discount rate) to $25,200,000 (3 percent rate). This is 
based on the sum of the following components. Operating reactors have 
estimated costs that range from $4,520,000 to $8,640,000. 
Decommissioning Reactors have estimates going from $794,000 to 
$1,120,000. The 2 Category I sites' costs for this paragraph go from 
$138,000 to $257,000. RTRs have estimates of from $2,800,000 to 
$4,800,000. Other reactor sites run from $200,000 to $347,000. The 
Category II and III sites have estimates of $400,000 to $693,000. The 
Hot Cell Sites account for $133,000 to $231,000, while the ISFSI sites 
have estimates of $4,270,000 to $9,060,000.
    The NRC notes that Appendix G to part 73 imposes no additional (or 
separate) requirements on licensees. It only contains a detailed 
listing of the security event notifications that are required to be 
reported under Sec.  73.71. As a result, no separate costs would be 
incurred by licensees because of the requirements of Appendix G (i.e., 
the costs for event notifications specified under Appendix G are 
accounted for under the costs associated with Sec.  73.71).
    The notification requirements' discounted flow of funds costs for 
the industry sum to from $15,056,000 (7 percent) to $28,613,000 (3 
percent).
    The total industry operating costs are the sum of the recurring 
inventory requirements ($6.1 million given the 7 percent real discount 
rate and $11.2 million with the 3 percent rate), the background checks 
($3.7 million at 7 percent and $6.5 million at 3 percent), and the 
security event notification reports ($15.1 million using the 7 percent 
rate and $28.6 million with the 3 percent rate). This total is 
estimated to range from $24.9 million (7 percent) to $46.3 million (3 
percent rate).
     NRC Implementation--NRC implementation costs include the 
labor cost for the development of the final rule and the regulatory 
guidance (two regulatory guides). The NRC would also need to develop 
appropriate inspection procedures to confirm compliance with this rule.
    NRC staff estimates that it would take approximately 1 staff year 
or 1,600 hours to develop the final rule and about a half year (800 
staff hours) to develop the final regulatory guidance. Lastly, the 
development of NRC inspection procedures will take about a quarter 
staff year (400 staff hours). Using the NRC's partially loaded hourly 
rate of $100 results in the NRC implementation cost of $280,000 (1,600 
hrs + 800 hrs + 400 hrs). The NRC estimates that it would take about a 
quarter staff year to review and comment on each licensee's security 
plan, training and qualification plan, contingency response plan, and 
weapons safety assessment, including a round of Requests for Additional

[[Page 6230]]

Information. This is estimated to cost the NRC $40,000 per site or 
$3,280,000 for the industry. Adding this amount to the initial part of 
the NRC implementation cost estimate of $280,000 results in a total NRC 
implementation cost of almost $3.6 million.
     NRC Operation--The NRC would need to inspect the 
licensees' periodic inventories, recordkeeping, and training and 
qualification of enhanced weapons as a result of this rule. These 
inspections of the licensee's enhanced weapons would take one staff day 
per year per individual licensee site, with the exception of the first 
year, which would take 2 staff days per site. This results in a first-
year NRC cost of about $1,600 for one site and about $131,200 (82 sites 
x $1,600/site) industry-wide for the first year. Subsequent years would 
result in costs of $800 per site and $65,600 (82 sites x $800/site) for 
industry-wide impacts on the NRC. This results in a discounted flow of 
funds equal to total operating costs for the inspection of the periodic 
weapons inventory ranging from an estimated high of about $1,665,000 
(using a 3 percent real discount rate) to $934,000 (using a 7 percent 
rate).
    The NRC staff estimates that inspecting the licensee's records 
program for the mandatory firearms background checks would take one 
staff day per year per individual licensee site, with the exception of 
the first year, which would take 2 staff days per site. This results in 
an NRC cost of about $1,600 for one site the first year and about 
$131,200 (82 sites x $1,600/site) industry-wide for the first year. 
Subsequent years would result in NRC costs of $800 per site and $65,600 
(82 sites x $800/site) for industry-wide impacts on the NRC. NRC's 
total operating cost for the records check of the mandatory firearms 
background checks ranges from an estimated high of $1,665,000 (using a 
3 percent real discount rate) to $934,000 (using a 7 percent rate). No 
separate estimate for NRC costs associated with recordkeeping and 
processing firearms background checks are provided, because these costs 
are already included in the NRC's fee for processing a firearms 
background check.
    The NRC's total operating costs are the sum of the above values, 
which range from slightly under $1.9 million (7 percent rate) to $3.3 
million (3 percent rate).
     Regulatory Efficiency--The proposed action would result in 
enhanced regulatory efficiency through regulatory and compliance 
improvements based upon statutory mandates involving the voluntary 
possession of enhanced weapons and mandatory firearms background checks 
at power reactor facilities and 2 Category I SSNM facilities. The 
proposed action would also result in enhanced regulatory efficiency 
involving the NRC's ability to monitor ongoing security events at a 
range of licensed facilities, and the ability to rapidly communicate 
information on security events at such facilities to other NRC-
regulated facilities and other government agencies, as necessary.
     Public Health (Accident)--The proposed action would reduce 
the risk that public health will be affected by radiological releases 
because of the increased likelihood of a successful repulsion of an 
attack.
     Occupational Health (Accident)--The proposed action would 
reduce the risk that occupational health will be affected by 
radiological releases because of the increased likelihood of a 
successful repulsion of an attack.
     Off-Site Property--The proposed action would reduce the 
risk that off-site property will be affected by radiological releases 
because of the increased likelihood of a successful repulsion of an 
attack.
     On-Site Property--The proposed action would reduce the 
risk that on-site property will be affected by radiological releases 
because of the increased likelihood of a successful repulsion of an 
attack.
     Other Government Agencies--The FBI would be affected by 
this rule because of its role in processing the mandatory fingerprint 
checks and firearms background checks the statute requires. The ATF 
would be affected by this rule because of its involvement with the 
approval to transfer of enhanced weapons to and from an authorized NRC 
licensee. Note: The FBI's fees for fingerprinting checks are 
incorporated within the NRC's fee discussed above. The FBI does not 
charge a fee for firearms background checks. Also, as previously noted, 
the ATF taxes to transfer enhanced weapons are not included in this 
analysis.
    Attributes that are not expected to be affected under any of the 
rulemaking options include the following: Occupational health 
(routine); public health (routine); environmental considerations; 
general public; improvements in knowledge; and antitrust 
considerations.

4. Presentation of Results

    Section 161A of the AEA requires several modifications to 10 CFR 
part 73. The pertinent sections and appendices which are being revised 
are Sec. Sec.  73.2, ``Definitions,'' 73.71, ``Reporting of safeguards 
events'' 73.18, ``Authorization for use of enhanced weapons and 
preemption of firearms laws,'' and 73.19, ``Firearms background checks 
for armed security personnel.''
    The fundamental incentive for a licensee to choose to obtain 
enhanced weapons is to increase their defensive capabilities to provide 
high assurance that public health and safety and the common defense and 
security will be adequately protected from any attempts of radiological 
sabotage. Since a licensee's obtaining enhanced weapons is voluntary, 
licensees must evaluate for their specific site whether the costs and 
benefits of using enhanced weapons are appropriate in general; and if 
appropriate in general, which specific types of weapons are appropriate 
for their particular site and protective strategy. Also, the firearms 
background checks will provide assurance that security personnel 
possessing enhanced weapons are not barred under Federal and State law 
from receiving, possessing, transporting, or using any covered weapons 
and ammunition. The NRC staff notes that while licensees would be 
required to pay an excise tax when transferring enhanced weapons, the 
tax is not considered a cost of this proposed rule because it is a 
result of ATF regulations.
    The total industry implementation costs for operating reactors is 
$13,526,000; for Category I SSNM sites $416,000; and for 
decommissioning sites $3,036,000. The sum of the total industry 
implementation cost is $17.0 million. The industry operating costs when 
discounted as flows of funds and based on the assumed lengths of lives 
of the various facilities ranged from $24.9 million to $46.3 million 
given the 7 percent and 3 percent real discount rates respectively.
    The total costs to industry, including both implementation and 
operating expenses are estimated to range from $41.9 million to $63.3 
million, again given the 7 percent and 3 percent real discount rates 
respectively.
    The NRC implementation costs are almost $3.6 million. The recurring 
or annual costs are calculated to have a present value of from $1.9 
million (7 percent rate) to $3.3 million (3 percent rate). Therefore, 
the total estimated NRC costs range from about $5.5 million (7 percent 
rate) to $6.9 million (3 percent rate).
    The total quantitative costs estimates for this proposed rulemaking 
are estimated to be from $47.4 million (7 percent) to $70.2 million (3 
percent).
     Disaggregation

[[Page 6231]]

    In order to comply with the guidance provided in Section 4.3.2 
(Criteria for the Treatment of Individual Requirements) of the NRC's 
Regulatory Analysis Guidelines, the NRC conducted a screening review to 
ensure that the aggregate analysis does not mask the inclusion of 
individual rule provisions that are not cost-beneficial when considered 
individually and not necessary to meet the goals of the rulemaking. 
Consistent with the Regulatory Analysis Guidelines, the NRC evaluated, 
on a disaggregated basis, each new regulatory provision expected to 
result in incremental costs. Given that the NRC is required to comply 
with section 161A of the AEA, the NRC believes that each of these 
provisions is necessary and cost-justified based on its resulting 
qualitative benefits, as discussed above.

5. Decision Rationale

    Relative to the ``no-action'' alternative, the proposed rule would 
cost industry from around $42 million to $63 million over the average 
lifetime of the plants. The total NRC costs would range from $5.5 
million to slightly under $7 million. Total costs of the rule are 
estimated to range from around $47 million to $70 million. The large 
majority of requirements in this rule is the result of the new section 
161A of the AEA. However, there are some items which the NRC has 
required that were not specifically in the statute. The NRC included 
them because it needs to be able to respond to public and press 
inquires on security event issues and the items provided the most 
opportune method for the NRC to comply with the statute. Furthermore, 
the NRC concluded that for all of these requirements, and their 
corresponding costs, the proposed approach is appropriate.
    Although the NRC did not quantify the benefits of this rule, the 
staff did qualitatively examine benefits and concluded that the rule 
would provide safety and security-related benefits. Offsetting this net 
cost, the NRC believes that the rule would result in substantial non-
quantified benefits related to safety and security, as well as enhanced 
regulatory efficiency and effectiveness. Therefore, the NRC believes 
that the rule is cost-justified for several qualitative reasons. First, 
the proposed rule would provide increased defensive capability of 
licensees and thus would increase the assurance that a licensee can 
adequately protect a power reactor facility, decommissioning site, or 
Category I SSNM facility against an external assault. Second, the 
proposed rule would provide a mechanism to accomplish a statutory 
mandate to verify that security officers protecting such facilities are 
not disqualified under Federal or State law from possessing or using 
firearms and ammunition. Lastly, as indicated above, licensee 
application for enhanced weapons authority and preemption authority 
under section 161A is voluntary.
    The NRC also modified the event notification requirements for the 
following qualitative reasons. This change would result in increasing 
the NRC's ability to respond to security-related plant events, evaluate 
ongoing suspicious activities for threat implications, and accomplish 
the Agency's strategic communication mission.
    Based on the NRC's assessment of the costs and benefits of the 
propose rule on licensee facilities, the agency has concluded that the 
proposed rule provisions would be justified.

6. Implementation

    The final rule is to take effect 30 days after publication in the 
Federal Register. A compliance date of 180 days after publication of 
the final rule will also be established for some provisions of this 
rule. The NRC staff does not expect this rule to have any impact on 
other requirements.

XV. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the NRC certifies that this rule would not, if promulgated, 
have a significant economic impact on a substantial number of small 
entities. With respect to the enhanced weapons and firearms background 
check provisions, this proposed rule affects only the licensing and 
operation of nuclear power reactors and fuel cycle facilities 
authorized to possess and use Category I quantities of SSNM. With 
respect to the security event notification provisions (both reports and 
records), this proposed rule affects fuel cycle facilities authorized 
to possess and use Category I quantities of SSNM, Category II and 
Category III quantities of SNM, hot cell facilities, ISFSIs, MRSs, 
GROAs, power reactor facilities, production reactor facilities, and 
research and test reactor facilities. Additionally, this proposed rule 
also affects licensees and certificate holders engaged in activities 
involving the transportation of Category I quantities of SSNM, SNF, 
HLW, and Category II and Category III quantities of SNM. The companies 
that own or operate these facilities or conduct these activities do not 
fall within the scope of the definition of ``small entities'' presented 
in the Regulatory Flexibility Act or the size standards established by 
the NRC (10 CFR 2.810).

XVI. Backfit Analysis

    The NRC evaluated the aggregated set of requirements in this 
proposed rule that constitute backfitting in accordance with sections 
10 CFR 50.109 and 70.76. The NRC prepared a draft regulatory analysis 
on the original proposed rule published on October 26, 2006. The 
backfit analysis is contained within Section 4.2 of that regulatory 
analysis. Availability information for the draft regulatory (and 
backfit) analysis is provided in Section IX, ``Availability of 
Documents,'' of this document. This analysis examined the costs and 
benefits of the alternatives considered by the NRC.
    Many of the provisions of this proposed rule do not constitute 
backfitting because they are voluntary in nature, and would therefore 
not impose modifications or additions to existing structures, 
components, or designs, or existing procedures or organizations. These 
provisions include those related to application for the use of enhanced 
weapons and/or preemption authority. Other provisions of the rule 
implementing section 161A, such as the mandatory firearms background 
checks, are not backfits because they implement mandatory provisions 
required by statute.
    To the extent that some of the specific implementing details of the 
firearms background checks described in this proposed rule are not 
specifically mandated by statute, or the Firearms Guidelines issued by 
the Commission with the approval of the U.S. Attorney General, the 
Commission believes that such measures are essential for the effective 
implementation of the rule's requirements, and thus necessary for the 
adequate protection to the health and safety of the public and are in 
accord with the common defense and security.
    Regarding the provisions of the October 2006 proposed rule and this 
proposed rule that relate to information collection and reporting 
requirements, revisions that amend existing information collection and 
reporting requirements or impose new information and collection and 
reporting requirements are not considered to be backfits, as presented 
in the charter for the NRC's Committee to Review Generic Requirements 
(CRGR).
    Therefore, for the reasons stated above, a backfit analysis has not 
been completed for any of the provisions of this proposed rule.

[[Page 6232]]

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 AEA, 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, 149, 68 Stat. 930, 948, as amended, 
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 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); Energy Policy Act of 2005, Pub. L. 
109-58, 119 Stat. 594 (2005).
    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.  73.2, paragraph (a), definitions for ``Adverse firearms 
background check,'' ``Combined enhanced weapons authority and 
preemption authority,'' ``Covered weapon,'' ``Enhanced weapon,'' 
``Firearms background check,'' ``High-level radioactive waste,'' 
``NICS,'' ``NICS response,'' ``Satisfactory firearms background 
check,'' ``Spent nuclear fuel or spent fuel (SNF),'' ``Stand-alone 
preemption authority,'' and ``Standard weapon'' are added in 
alphabetical order; and paragraphs (b) and (c) are added to read as 
follows:


Sec.  73.2  Definitions.

* * * * *
    (a) * * *
    Adverse firearms background check means a firearms background check 
that has resulted in a ``denied'' or ``delayed'' NICS response.
* * * * *
    Combined enhanced weapons authority and preemption authority means 
the authority granted the Commission, at 42 U.S.C. 2201a, to authorize 
licensees or certificate holders, or the designated security personnel 
of the licensee or certificate holder, to transfer, receive, possess, 
transport, import, and use one or more category of enhanced weapons, 
notwithstanding any local, State, or certain Federal firearms laws 
(including regulations).
* * * * *
    Covered weapon means any handgun, rifle, shotgun, short-barreled 
shotgun, short-barreled rifle, semi-automatic assault weapon, machine 
gun, ammunition for any of these weapons, or a large capacity 
ammunition feeding device as specified under 42 U.S.C. 2201a. Covered 
weapons include both enhanced weapons and standard weapons.
* * * * *
    Enhanced weapon means any short-barreled shotgun, short-barreled 
rifle, or machine gun. Enhanced weapons do not include destructive 
devices as defined at 18 U.S.C. 921(a)(4) (e.g., explosives or weapons 
with a bore diameter greater than 12.7 mm (0.5-in or 50-caliber)). 
Enhanced weapons do not include standard weapons.
    Firearms background check means a background check by the U.S. 
Attorney General as defined at 42 U.S.C. 2201a and that includes a 
check against the Federal Bureau of Investigation's (FBI's) fingerprint 
system and the National Instant Criminal Background Check System 
(NICS).
* * * * *
    High-level radioactive waste means--
    (1) The highly radioactive material resulting from the reprocessing 
of spent nuclear fuel, including liquid waste produced directly in 
reprocessing and any solid material derived from such liquid waste that 
contains fission products in sufficient concentrations; and
    (2) Other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.
* * * * *
    NICS means the National Instant Criminal Background Check System 
established by Section 103(b) of the Brady Handgun Violence Prevention 
Act, Public Law 103-159 (107 Stat. 1536), that is operated by the FBI.
    NICS response means a response provided by the FBI as the result of 
a firearms background check against the NICS. A response from NICS to a 
firearms background check may be ``proceed,'' ``delayed,'' or 
``denied.''
* * * * *
    Satisfactory firearms background check means a firearms background 
check that has resulted in a ``proceed'' NICS response.
* * * * *
    Spent nuclear fuel or Spent fuel (SNF) means the fuel that has been 
withdrawn from a nuclear reactor following irradiation and has not been 
chemically separated into its constituent elements by reprocessing. 
Spent fuel includes the special nuclear material, byproduct material, 
source material, and other radioactive materials associated with a fuel 
assembly.
    Stand-alone preemption authority means the authority granted by the 
Commission, under 42 U.S.C. 2201a, to authorize licensees or 
certificate holders, or the designated security personnel of a licensee 
or certificate holder, to transfer, receive, possess, transport, 
import, or use one or more categories of standard weapons or enhanced 
weapons notwithstanding any local, State, or certain Federal firearms 
laws (including regulations).
    Standard weapon means any handgun, rifle, shotgun, semi-automatic 
assault weapon, or a large capacity ammunition feeding device. Standard 
weapons do not include enhanced weapons.
* * * * *
    (b) The terms ``ammunition,'' ``handgun,'' ``rifle,'' ``machine 
gun,'' ``large capacity ammunition feeding device,'' ``semi-automatic 
assault weapon,'' ``short-barreled shotgun,'' ``short-barreled rifle,'' 
and ``shotgun'' specified in this section have the same meaning as 
provided for these terms in the U.S. Bureau of Alcohol, Tobacco, 
Firearms, and Explosives' regulations at 27 CFR 478.11.
    (c) The terms ``delayed,'' ``denied,'' and ``proceed'' that are 
used in NICS responses specified in this section have the same meaning 
as is provided for these terms in the FBI's regulations in 28 CFR 25.2.
    3. In Sec.  73.8, paragraphs (b) and (c) are revised to read as 
follows:


Sec.  73.8  Information collection requirements: OMB approval.

* * * * *
    (b) The approved information collection requirements contained in 
this part appear in Sec. Sec.  73.5, 73.18, 73.19, 73.20, 73.21, 73.24, 
73.25, 73.26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.54, 73.55, 
73.56, 73.57, 73.58, 73.60, 73.67, 73.70, 73.71, 73.72, 73.73, 73.74, 
and Appendices B, C, and G to this part.
    (c) This part contains information collection requirements in 
addition to those approved under the control number specified in 
paragraph (a) of this section. These information collection 
requirements and control numbers under which they are approved are as 
follows:
    (1) In Sec.  73.19, NRC Form 754 is approved under control number 
3150-0204;

[[Page 6233]]

    (2) In Sec. Sec.  73.19 and 73.57, FBI Form FD-258 is approved 
under control number 1110-0046; and
    (3) In Sec.  73.71, NRC Form 366 is approved under control number 
3150-0104.
    4. Section 73.18 is added to read as follows:


Sec.  73.18  Authorization for use of enhanced weapons and preemption 
of firearms laws.

    (a) Purpose. This section presents the requirements for licensees 
and certificate holders to obtain NRC approval to use the authorities 
provided under 42 U.S.C. 2201a, in protecting Commission-designated 
classes of facilities, radioactive material, or other property. These 
authorities include ``preemption authority'' and ``enhanced-weapons 
authority.''
    (b) General Requirements. (1) 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.
    (2) 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 these licensees and certificate holders.
    (c) Applicability. (1) Stand-alone preemption authority. The 
following classes of facilities, radioactive material, or other 
property are designated by the Commission pursuant to 42 U.S.C. 2201a--
    (i) Power reactor facilities; and
    (ii) Facilities authorized to possess or use a formula quantity or 
greater of strategic special nuclear material, where the material has a 
radiation level less than or equal to 1 Gray (Gy) (100 Rad) per hour at 
a distance of 1 meter (m) (3.28 feet [ft]), without regard to any 
intervening shielding.
    (2) Combined enhanced-weapons authority and preemption authority. 
The following classes of facilities, radioactive material, or other 
property are designated by the Commission under 42 U.S.C. 2201a--
    (i) Power reactor facilities; and
    (ii) Facilities authorized to possess or use a formula quantity or 
greater of strategic special nuclear material, where the material has a 
radiation level less than or equal to 1 Gy (100 Rad) per hour at a 
distance of 1 m (3.28 ft), without regard to any intervening shielding.
    (d) Application for stand-alone preemption authority. (1) Licensees 
and certificate holders listed in paragraph (c)(1) of this section may 
apply to the NRC for stand-alone preemption authority using the 
procedures outlined in this section.
    (2) Licensees and certificate holders shall submit an application 
to the NRC in writing, in accordance with Sec.  73.4, and indicate that 
the licensee or certificate holder is applying for stand-alone 
preemption authority at 42 U.S.C. 2201a.
    (3)(i) Licensees and certificate holders shall indicate that they 
have completed satisfactory firearms background checks for their 
security personnel whose official duties require access to covered 
weapons, in accordance with Sec.  73.19.
    (ii) Alternatively, licensees and certificate holders shall 
indicate they have commenced firearms background checks for their 
security personnel whose official duties require access to covered 
weapons; and they shall subsequently supplement their application to 
indicate that a sufficient number of security personnel have completed 
satisfactory firearms background checks to meet the licensee's or 
certificate holder's security personnel minimum staffing and fatigue 
requirements, in accordance with Sec.  73.19.
    (4) 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 stand-alone preemption 
authority.
    (e) Application for combined enhanced-weapons authority and 
preemption authority. (1) Licensees and certificate holders listed in 
paragraph (c)(2) of this section may apply to the NRC for combined 
enhanced-weapons authority and preemption authority.
    (2) Licensees and certificate holders shall submit an application 
to the NRC indicating that the licensee or certificate holder is 
applying for combined enhanced-weapons authority and preemption 
authority at 42 U.S.C. 2201a, in accordance with Sec.  73.4, and the 
license or certificate amendment provisions of Sec. Sec.  50.90, 70.34, 
or 76.45 of this chapter, as applicable. Licensees and certificate 
holders who have previously been approved for stand-alone preemption 
authority under paragraph (d) of this section are not required to 
reapply for preemption authority.
    (3) Licensees and certificate holders shall include with their 
application--
    (i) The specific information required by paragraph (f) of this 
section; and
    (ii) If applicable, the date they applied to the NRC for stand-
alone preemption authority and the date the NRC approved their 
application.
    (4)(i) Licensees and certificate holders shall indicate that they 
have completed satisfactory firearms background checks for their 
security personnel whose official duties require access to covered 
weapons, in accordance with Sec.  73.19.
    (ii) Alternatively, licensees and certificate holders shall 
indicate that they have commenced firearms background checks for their 
security personnel whose official duties require access to covered 
weapons. Licensees and certificate holders shall subsequently 
supplement their application to indicate that a sufficient number of 
security personnel have completed satisfactory firearms background 
checks to meet the licensee's or certificate holder's security 
personnel minimum staffing and fatigue requirements, in accordance with 
Sec.  73.19.
    (5) The NRC will make a final determination on the license 
application in accordance with Sec.  50.92, 70.35, or 76.45 of this 
chapter, as applicable, and 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 combined enhanced-
weapons authority and preemption authority.
    (6) Subsequent to the NRC's approval of a licensee's or certificate 
holder's application for combined enhanced weapons authority and 
preemption authority, if the licensee or certificate holder wishes to 
use a different type, caliber, or quantity of enhanced weapons from 
that previously approved by the NRC, then the licensee or certificate 
holder must submit revised plans and assessments specified by this 
section to the NRC for prior review and written approval in accordance 
with the license or certificate amendment provisions of Sec. Sec.  
50.90, 70.34, or 76.45 of this chapter, as applicable.
    (f) Application for enhanced-weapons authority additional 
information. (1) Licensees and certificate holders shall also submit to 
the NRC for prior review and written approval a new, or revised, 
physical security plan, security personnel training and qualification 
plan, safeguards contingency plan, and a weapons safety assessment 
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 facilities, radioactive material, or other property 
being protected.
    (2) In addition to other requirements presented in this part, these 
plans and assessments must--

[[Page 6234]]

    (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;
    (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; and
    (iv) For the weapons 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.
    (D) In assessing potential safety impacts, licensees and 
certificate holders shall consider both accidental and deliberate 
discharges of these enhanced weapons. However, licensees and 
certificate holders are not required to assess malevolent discharges of 
these enhanced weapons by trained and qualified security personnel who 
have been screened and evaluated by the licensee's or certificate 
holder's insider mitigation or personnel reliability programs.
    (3) The licensee's or certificate holder's training and 
qualification plan for enhanced weapons must include information from 
applicable firearms standards developed by nationally-recognized 
firearms organizations or standard setting bodies or from 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.
    (g) Conditions of approval. (1) Licensees and certificate holders 
who have applied to the NRC for and received combined enhanced-weapons 
authority and preemption authority shall provide a copy of the NRC's 
authorization to the U.S. Bureau of Alcohol, Tobacco, Firearms, and 
Explosives' (ATF's) Federal firearms license (FFL) holder (e.g., 
manufacturer or importer) for forwarding to ATF to request the transfer 
of the enhanced weapons to the licensee or certificate holder.
    (2) Licensees and certificate holders receiving enhanced weapons 
must also obtain any required ATF tax stamps and register these weapons 
under ATF's regulations under 27 CFR part 479.
    (3) All enhanced weapons possessed by the licensee or certificate 
holder, must be registered under the name of the licensee or 
certificate holder. Enhanced weapons may not be registered under the 
name of a licensee's or certificate holder's security contractor.
    (4) Licensees and certificate holders obtaining enhanced weapons 
may, at their discretion, also apply to ATF to obtain an FFL or a 
special occupational tax stamp in conjunction with obtaining these 
enhanced weapons.
    (h) Completion of training and qualification before use of enhanced 
weapons. (1) Licensees and certificate holders who have applied for and 
received combined enhanced-weapons authority and preemption authority 
under this section shall ensure their security personnel complete the 
required firearms training and qualification in accordance with the 
licensee's or certificate holder's NRC-approved training and 
qualification plan.
    (2) Initial training and qualification on enhanced weapons must be 
completed before the security personnel's use of enhanced weapons and 
must be documented in accordance with the requirements of the 
licensee's or certificate holder's training and qualification plan.
    (3) Recurring training and qualification on enhanced weapons by 
security personnel must be completed and documented in accordance with 
the requirements of the licensee's or certificate holder's training and 
qualification plan.
    (i) [Reserved]
    (j) Use of enhanced weapons. Requirements regarding the use of 
enhanced weapons by licensee or certificate holder security personnel, 
in the performance of their official duties, are contained in 
Sec. Sec.  73.46 and 73.55 and in appendices B, C, and H of this part, 
as applicable.
    (k) Notification of adverse ATF findings. (1) NRC licensees and 
certificate holders with enhanced weapons shall notify the NRC, in 
accordance with Sec.  73.71, of the receipt of adverse ATF inspection 
or enforcement findings related to their receipt, possession, or 
transfer of enhanced weapons.
    (2) NRC licensees and certificate holders that also possess an ATF 
FFL shall notify the NRC, in accordance with Sec.  73.71, of the 
receipt of adverse ATF inspection or enforcement findings related to 
their FFL.
    (l) (Reserved).
    (m) Transfer of enhanced weapons. (1) A licensee's or certificate 
holder's issuance of enhanced weapons to security personnel is not 
considered a transfer of those weapons under 26 U.S.C. chapter 53, as 
specified under ATF's regulations in 27 CFR part 479, if the weapons 
remain within the site of a facility. Remaining within the site of a 
facility means within the site boundary, as defined by the licensee's 
or certificate holder's safety analysis report submitted to the NRC.
    (2) A licensee's or certificate holder's issuance of enhanced 
weapons to security personnel for the permissible reasons specified in 
paragraph (m)(3) of this section, for activities that are outside of 
the facility's site boundary, are not considered a transfer at 26 
U.S.C. chapter 53, as specified under ATF's regulations in 27 CFR part 
479, if--
    (i) The security personnel possessing the enhanced weapons are 
employees of the licensee or certificate holder; or
    (ii) The security personnel possessing the enhanced weapons are 
employees of a contractor providing security services to licensee or 
certificate holder; and these contractor security personnel are under 
the direction of, and accompanied by, an authorized licensee or 
certificate holder employee.
    (3) Permissible reasons for removal of enhanced weapons from the 
licensee's or certificate holder's facility include--
    (i) Removal of enhanced weapons for use at a firing range or 
training facility that is used by the licensee or certificate holder in 
accordance with its NRC-approved training and qualification plan for 
enhanced weapons; and
    (ii) Removal of enhanced weapons for use in escorting shipments of 
radioactive material or other property designated under paragraph (c) 
of this section that are being transported to or from the licensee's or 
certificate holder's facility.
    (4) Removal of enhanced weapons from and/or return of these weapons 
to the licensee's or certificate holder's facility shall be documented 
in accordance with the records requirements of paragraph (p) of this 
section.
    (5) Removal of enhanced weapons from a licensee's or certificate 
holder's facility for other than the permissible

[[Page 6235]]

reasons set forth in paragraph (m)(3) of this section shall be 
considered a transfer of those weapons under 26 U.S.C. chapter 53, as 
specified under ATF's regulations in 27 CFR part 479. The licensee or 
certificate holder may only transfer enhanced weapons pursuant to an 
application approved by ATF in accordance with ATF's regulations. 
Examples of transfers include, but are not limited to:
    (i) Removal of an enhanced weapon from a licensee's or certificate 
holder's facility to a gunsmith or manufacturer for the purposes of 
repair or maintenance and subsequent return of the weapon to the 
licensee or certificate holder;
    (ii) Sale or disposal of an enhanced weapon to another authorized 
NRC licensee or certificate holder;
    (iii) Sale or disposal of an enhanced weapon to an authorized 
Federal firearms license holder, government agency, or official police 
organization; or
    (iv) Abandonment of an enhanced weapon to ATF.
    (6) Security personnel shall return enhanced weapons issued from 
armories to the custody of the licensee or certificate holder following 
the completion of their official duties.
    (7) A licensee or certificate holder obtaining enhanced weapons 
shall assist the transferor in completing an application to transfer 
these weapons in accordance with 26 U.S.C. 5812, and shall provide the 
transferor with a copy of the NRC's written approval of its application 
for combined enhanced weapons authority and preemption authority.
    (8) Enhanced weapons may only be transferred to a licensee or 
certificate holder, not to a contractor providing security services to 
the licensee or certificate holder.
    (9) A licensee or certificate holder that has authorized the 
removal of enhanced weapons from its facility, for any of the 
permissible reasons listed under paragraph (m)(3) of this section, 
shall verify that these weapons are returned to the facility upon the 
completion of the authorized activity.
    (10) Enhanced weapons that are not returned to the licensee's or 
certificate holder's facility, following permissible removal, shall be 
considered a transfer of a weapon under this paragraph, or a stolen or 
lost weapon under paragraph (o) of this section, as applicable. 
Information on the transfer, theft, or loss of an enhanced weapon shall 
be documented as required under paragraph (p) of this section.
    (n) Transport of weapons. (1) Security personnel transporting 
enhanced weapons to or from a firing range or training facility used by 
the licensee or certificate holder shall ensure that these weapons are 
unloaded and locked in a secure container during transport. Unloaded 
weapons and ammunition may be transported in the same locked secure 
container.
    (2) Security personnel transporting covered weapons to or from a 
licensee's or certificate holder's facility following the completion 
of, or in preparation for, the duty of escorting shipments of 
radioactive material or other property, designated under paragraph (c) 
of this section that is being transported to or from the licensee's or 
certificate holder's facility shall ensure that these weapons are 
unloaded and locked in a secure container during transport. Unloaded 
weapons and ammunition may be transported in the same locked secure 
container.
    (3) Security personnel using covered weapons to protect shipments 
of radioactive material or other property designated under paragraph 
(c) of this section that are being transported to or from the 
licensee's or certificate holder's facility (whether intrastate or 
interstate) shall ensure that these weapons are maintained in a state 
of loaded readiness and available for immediate use except when 
prohibited by 18 U.S.C. 922q.
    (4) Security personnel transporting covered weapons to or from the 
licensee's or certificate holder's facility shall also comply with the 
requirements of Sec.  73.19.
    (5) Situations where security personnel transport enhanced weapons 
to or from the licensee's or certificate holder's facility are not 
considered transfers of these weapons at 26 U.S.C. chapter 53, as 
specified under ATF's regulations in 27 CFR part 479, if--
    (i) The security personnel transporting the enhanced weapons are 
employees of the licensee or certificate holder; or
    (ii) The security personnel transporting the enhanced weapons are 
employees of a contractor providing security services to licensee or 
certificate holder; and these contractor security personnel are under 
the direction of, and accompanied by, an authorized licensee employee.
    (o) Periodic inventories of enhanced weapons. (1) Licensees and 
certificate holders possessing enhanced weapons under this section 
shall conduct periodic accountability inventories of the enhanced 
weapons in their possession to verify the continued presence of each 
enhanced weapon the licensee or certificate holder is authorized to 
possess.
    (2) The results of any periodic inventories of enhanced weapons 
shall be retained in accordance with the records requirements of 
paragraph (q) of this section.
    (3) Licensees and certificate holders possessing enhanced weapons 
under this section shall perform inventories of their enhanced weapons 
monthly, as follows--
    (i) Licensees and certificate holders shall conduct an inventory to 
verify that the authorized quantity of enhanced weapons are present at 
the licensee's or certificate holder's facility.
    (ii) Licensees and certificate holders shall verify the presence of 
each individual enhanced weapon.
    (iii) Licensees and certificate holders that store enhanced weapons 
in a locked secure weapons container (e.g., a ready-service arms 
locker) located within a protected area, vital area, or material access 
area may verify the presence of an intact tamper-indicating device 
(TID) on the locked secure weapons container, instead of verifying the 
presence of each individual weapon.
    (iv) Verification of the presence of enhanced weapons via the 
presence of an intact TID shall be documented in the inventory records 
and include the serial number of the TID.
    (v) Licensees and certificate holders may use electronic technology 
(e.g., bar-codes on the weapons) in conducting such inventories.
    (vi) The time interval from the previous monthly inventory shall 
not exceed 30  3 days.
    (4) Licensees and certificate holders possessing enhanced weapons 
under this section shall perform inventories of their enhanced weapons 
semi-annually, as follows--
    (i) Licensees and certificate holders shall conduct an inventory to 
verify that each authorized enhanced weapon is present at the 
licensee's or certificate holder's facility through the verification of 
the serial number of each enhanced weapon.
    (ii) Licensees and certificate holders shall verify the presence of 
each enhanced weapon located in a locked secure weapons container 
(e.g., a ready-service arms locker) through the verification of the 
serial number of each enhanced weapon located within the container.
    (iii) The time interval from the previous semi-annual inventory 
shall not exceed 180  7 days.
    (iv) Licensees and certificate holders conducting a semi-annual 
inventory may substitute this semi-annual inventory in lieu of 
conducting the normal monthly inventory required under paragraph (n) of 
this section.

[[Page 6236]]

    (5) Licensees and certificate holders shall conduct monthly and 
semi-annual inventories of enhanced weapons using a two-person team.
    (6) Licensees and certificate holders shall inventory using a two-
person team any locked secure weapons container that was sealed with a 
TID and has subsequently been opened and shall verify the serial number 
of enhanced weapons stored in the weapons container. The team shall 
reseal the locked secure weapons container with a new TID and record 
the TID's serial number in the monthly inventory records.
    (7) Licensees and certificate holders shall use TIDs with unique 
serial numbers on locked secure weapons containers containing enhanced 
weapons.
    (8) Licensees and certificate holders shall store unused TIDs in a 
manner similar to other security access control devices (e.g., keys, 
lock cores, etc.) and shall maintain a log of issued TID serial 
numbers.
    (9) Licensees and certificate holders must resolve any 
discrepancies identified during periodic inventories within 24 hours of 
their identification; otherwise the discrepancy shall be treated as a 
stolen or lost weapon and notifications made in accordance with 
paragraph (o) of this section.
    (p) Stolen or lost enhanced weapons. (1) Licensees and certificate 
holders that discover any enhanced weapons they are authorized to 
possess under this section are stolen or lost shall notify the NRC and 
local law enforcement officials in accordance with Sec.  73.71.
    (2) Licensees and certificate holders that discover any enhanced 
weapons they are authorized to possess under this section are stolen or 
lost are required to notify ATF in accordance with ATF's regulations.
    (q) Records requirements. (1) Licensees and certificate holders 
possessing enhanced weapons under this section shall maintain records 
relating to the receipt, transfer, and transportation of such enhanced 
weapons.
    (2) Licensees and certificate holders shall maintain the following 
minimum records regarding the receipt of each enhanced weapon, 
including--
    (i) Date of receipt of the weapon;
    (ii) Name and address of the transferor who transferred the weapon 
to the licensee or certificate holder;
    (iii) Name of the manufacturer of the weapon, or the name of the 
importer (for weapons manufactured outside the U.S.); and
    (iv) Model, serial number, type, and caliber or gauge of the 
weapon.
    (3) Licensees and certificate holders shall maintain the following 
minimum records regarding the transfer of each enhanced weapon, 
including--
    (i) Date of shipment of the weapon;
    (ii) Name and address of the transferee who received the weapon; 
and
    (iii) Model, serial number, type, and caliber or gauge of the 
weapon.
    (4) Licensees and certificate holders shall maintain the following 
minimum records regarding the transportation of each enhanced weapon 
away from the licensee's or certificate holder's facility, including--
    (i) Date of departure of the weapon;
    (ii) Date of return of the weapon;
    (iii) Purpose of the weapon removal from the facility;
    (iv) Name(s) of the security personnel transporting the weapon;
    (v) Name(s) of the licensee employee accompanying and directing the 
transportation, where the security personnel transporting the weapons 
are employees of a security contractor providing security services to 
the licensee or certificate holder;
    (vi) Name of the person/facility to whom the weapon is being 
transported; and
    (vii) The model, serial number, type, and caliber or gauge of the 
weapon.
    (5) Licensees and certificate holders shall document in these 
records the discovery that any enhanced weapons they are authorized to 
possess pursuant to this section are stolen or lost.
    (6) Licensees and certificate holders possessing enhanced weapons 
pursuant to this section shall maintain records relating to the 
inventories of enhanced weapons for a period up to one year after the 
licensee's or certificate holder's authority to possess enhanced 
weapons is terminated, suspended, or revoked under paragraph (r) of 
this section and all enhanced weapons have been transferred from the 
licensee's or certificate holder's facility.
    (7) Licensees and certificate holders may integrate any records 
required by this section with records maintained by the licensee or 
certificate holder under ATF's regulations.
    (8) Licensees and certificate holders shall make any records 
required by this section available to NRC and ATF inspectors or 
investigators upon the request of such staff.
    (r) Termination, modification, suspension, or revocation of Section 
161A authority.
    (1) Licensees and certificate holders who desire to terminate their 
stand-alone preemption authority or combined enhanced weapons authority 
and preemption authority, issued under this section, shall apply to the 
NRC, in accordance with Sec.  73.4, and the license amendment 
provisions of Sec. Sec.  50.90, 70.34, or 76.45 of this chapter, as 
applicable, to terminate their authority. These licensees and 
certificate holders must have transferred or disposed of any enhanced 
weapons obtained under the provisions of this section prior to the NRC 
approval of a request for termination.
    (2) Licensees and certificate holders who desire to modify their 
combined enhanced weapons authority and preemption authority, issued 
under this section, shall apply to the NRC, in accordance with Sec.  
73.4 and the license amendment provisions of Sec. Sec.  50.90, 70.34, 
or 76.45 of this chapter, as applicable, to modify their authority. 
Licensee and certificate holder applications to modify their enhanced 
weapons authority shall provide the information required under 
paragraphs (e) and (f) of this section.
    (i) Licensees and certificate holders replacing their enhanced 
weapons with different types or models of enhanced weapons must include 
a plan to transfer or dispose of their existing enhanced weapons once 
the new weapons are deployed.
    (ii) Licensees and certificate holders adding additional numbers, 
models, or types of enhanced weapons do not require a transfer or 
disposal plan.
    (3) Licensees and certificate holders must transfer any enhanced 
weapons that they are no longer authorized to lawfully possess under 
this section in accordance with the provisions of paragraph (m) of this 
section. Licensees and certificate holders must dispose of any enhanced 
weapons to--
    (i) A Federal, State, or local government entity authorized to 
possess enhanced weapons under applicable law and ATF regulations;
    (ii) A Federal firearms licensee authorized to receive the enhanced 
weapons under applicable law and ATF regulations; or
    (iii) Another NRC licensee or certificate holder subject to this 
section that is authorized to receive and possess these specific types 
of enhanced weapons.
    (iv) Alternatively, licensees and certificate holders may also 
abandon any enhanced weapons to ATF for destruction.
    (4) Licensees and certificate holders who had their stand alone 
preemption authority or combined enhanced weapons and preemption 
authority terminated, suspended, or revoked may reapply for such 
authority by filing a new application under the provisions of this 
section.

[[Page 6237]]

    (5) The NRC will notify ATF within three business days of issuing a 
decision to the licensee or certificate holder that the NRC has taken 
action to terminate, modify, suspend, or revoke a licensee's or 
certificate holder's stand-alone preemption authority or combined 
enhanced weapons authority and preemption authority issued under this 
section of the NRC's action. The NRC shall make such notifications to 
the position or point of contact designated by ATF.
    (6) The Commission may revoke, suspend, or modify, in whole or in 
part, any approval issued under this section for any material false 
statement in the application or in the supplemental or other statement 
of fact required of the applicant; or because of conditions revealed by 
the application or statement of fact of any report, record, inspection, 
or other means that would warrant the Commission to refuse to grant 
approval of an original application; or for violation of, or for 
failure to observe, any of the terms and provisions of the act, 
regulations, license, permit, approval, or order of the Commission.
    5. Section 73.19 is added to read as follows:


Sec.  73.19  Firearms background checks for armed security personnel.

    (a) Purpose. This section presents the requirements for completion 
of firearms background checks at 42 U.S.C. 2201a for security personnel 
whose official duties require access to covered weapons at Commission-
designated classes of facilities, radioactive material, or other 
property. Firearms background checks are intended to verify that such 
armed security personnel are not prohibited from receiving, possessing, 
transporting, importing, or using firearms under applicable Federal or 
State law, including 18 U.S.C. 922(g) and (n).
    (b) General Requirements. (1) Licensees and certificate holders who 
fall within the classes of facilities, radioactive material, or other 
property listed in paragraph (c) of this section and who use covered 
weapons as part of their protective strategy shall ensure that a 
satisfactory firearms background check has been completed for all 
security personnel requiring access to covered weapons as part of their 
official duties in protecting such facilities, radioactive material, or 
other property and for all security personnel who inventory enhanced 
weapons.
    (2) The provisions of this section apply to all security personnel 
of the licensees or certificate holders whose duties require access to 
covered weapons, whether employed by the licensee or certificate 
holder, or a security contractor who provides security services to the 
licensee or certificate holder.
    (3) By [30 days after the effective date of the final rule] 
licensees and certificate holders specified in paragraph (c) of this 
section shall commence firearms background checks of all security 
personnel whose duties require, or will require, access to covered 
weapons.
    (4) By [180 days after effective date of the final rule] licensees 
and certificate holders specified in paragraph (c) of this section 
shall--
    (i) Remove from duty any existing security personnel whose duties 
require access to covered weapons, unless the individual has completed 
a satisfactory firearms background check per this section; and
    (ii) Not assign any security personnel to duties that require 
access to covered weapons, unless the individual has completed a 
satisfactory firearms background check per this section; and
    (iii) Not permit any security personnel access to covered weapons, 
unless the individual has completed a satisfactory firearms background 
check per this section.
    (5) After [30 days after the effective date of the final rule] 
licensees and certificate holders specified in paragraph (c) of this 
section must remove any security personnel who receive a ``denied'' 
NICS response from duties requiring access to covered weapons.
    (6) Within the 180-day transition period specified in paragraph 
(b)(4) of this section, affected licensees and certificate holders that 
currently possess enhanced weapons under an authority other than 42 
U.S.C. 2201a must remove any security personnel who receive a 
``delayed'' NICS response from duties requiring access to enhanced 
weapons.
    (7) After the [effective date of the final rule], any applicants 
for a license or a certificate of compliance within the classes of 
facilities, radioactive material, or other property specified in 
paragraph (c) of this section and who plan to use covered weapons as 
part of their protective strategy shall complete satisfactory firearms 
background checks of their security personnel who will require access 
to covered weapons as follows--
    (i) Licensees and certificate holders may not commence these 
firearms background checks until after the NRC has issued their license 
or certificate of compliance.
    (ii) Licensees and certificate holders shall complete satisfactory 
firearms background checks for applicable security personnel before 
those personnel are permitted access to covered weapons.
    (iii) Licensees and certificate holders shall complete satisfactory 
firearms background checks for applicable security personnel before the 
licensee's or certificate holder's initial receipt of any source 
material, special nuclear material, or radioactive material specified 
under the license or certificate of compliance.
    (8) Licensees and certificate holders may return to duties 
requiring access to covered weapons any individual who has received an 
adverse firearms background check after the individual completes a 
satisfactory firearms background check.
    (9) Security personnel who have completed a satisfactory firearms 
background check, but who have had a break in service with the 
licensee, certificate holder, or their security contractor of greater 
than one 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 completed 
a satisfactory firearms background check on these individuals within 
the last three years), are required to complete a new satisfactory 
firearms background check.
    (10) A change in the licensee, certificate holder, or ownership of 
a facility, radioactive material, or other property designated under 
paragraph (c) of this section, or a change in the security contractor 
that provides security services for protecting such facilities, 
radioactive material, or other property, does not require a new 
firearms background check for security personnel who require access to 
covered weapons.
    (11) Firearms background checks are not a substitute for any other 
background checks or investigations required for the licensee's or 
certificate holder's personnel under this chapter
    (12) Security personnel who have completed a satisfactory firearms 
background check under Commission orders issued before the NRC issues a 
final rule designating classes of facilities, radioactive material, or 
other property under paragraph (c) of this section are not subject to a 
new initial firearms background check under this section. However, 
security personnel are subject to the periodic firearms background 
check requirement of paragraph (f) of this section.
    (c) Applicability. For the purposes of firearms background checks, 
the following classes of facilities, radioactive material, or other 
property

[[Page 6238]]

are designated by the Commission at 42 U.S.C. 2201a--
    (1) Power reactor facilities; and
    (2) Facilities authorized to possess or use a formula quantity or 
greater of strategic special nuclear material, where the material has a 
radiation level less than or equal to 1 Gray (Gy) (100 Rad) per hour at 
a distance of 1 meter (3.28 ft), without regard to any intervening 
shielding.
    (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).
    (e) Firearms background check submittals. (1) Licensees and 
certificate holders shall submit to the NRC, in accordance with Sec.  
73.4, for all security personnel requiring a firearms background check 
under this section--
    (i) A set of fingerprint impressions, in accordance with paragraph 
(k) of this section; and
    (ii) A completed NRC Form 754.
    (2) In lieu of submitting a copy of each individual completed NRC 
Form 754 to the NRC, licensees and certificate holders may submit a 
single document consolidating the NRC Forms 754 data for multiple 
security personnel.
    (3) Licensees and certificate holders submitting via an electronic 
method an individual NRC Form 754 or consolidated data from multiple 
NRC Forms 754 to the NRC shall ensure that any personally identifiable 
information contained within these documents is protected in accordance 
with Sec.  73.4.
    (4) Licensees and certificate holders shall retain a copy of all 
NRC Forms 754 submitted to the NRC for one year subsequent to the 
termination or denial of an individual's access to covered weapons.
    (f) Periodic firearms background checks. (1) Licensees and 
certificate holders shall also complete a satisfactory firearms 
background check at least once every three calendar years to continue 
the security personnel's access to covered weapons.
    (2) Licensees and certificate holders may conduct these periodic 
firearms background checks at an interval of less than once every three 
calendar years, at their discretion.
    (3)(i) Licensees and certificate holders must submit the 
information specified in paragraph (f) of this section within three 
calendar years of the individual's most recent satisfactory firearms 
background check.
    (ii) Licensees and certificate holders may continue the security 
personnel's access to covered weapons pending completion of the 
firearms background check.
    (4) Licensees and certificate holders shall remove from duties 
requiring access to covered weapons any individual who receives an 
adverse firearms background check.
    (5) Licensees and certificate holders may return individuals who 
have received an adverse firearms background check to duties requiring 
access to covered weapons, if the individual subsequently completes a 
satisfactory firearms background check.
    (g) Notification of removal. Licensees and certificate holders 
shall telephonically notify the NRC Headquarters Operations Center at 
the phone numbers specified in Table 1 of Appendix A of this part 
within 72 hours after removing a security officer from duties requiring 
access to covered weapons due to the discovery of any disqualifying 
status or the occurrence of any disqualifying event. However, this 
requirement does not apply if the removal was due to the prompt 
notification of the licensee or certificate holder by the security 
individual under paragraph (h) of this section.
    (h) Security personnel responsibilities. Security personnel 
assigned duties requiring access to covered weapons shall notify their 
employing licensee's or certificate holder's security management within 
three working days (whether directly employed by the licensee or 
certificate holder or employed by a security contractor providing 
security services to the licensee or certificate holder) of the 
existence of any disqualifying status or upon the occurrence of any 
disqualifying events listed at 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 firearms or ammunition.
    (i) [Reserved]
    (j) Training on disqualifying events. Licensees and certificate 
holders shall include within their NRC-approved security training and 
qualification plans instructions on--
    (1) Disqualifying status or events specified in 18 U.S.C. 922(g) 
and (n), and the 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 firearms or 
ammunition; and
    (2) The continuing responsibility of security personnel assigned 
duties that require access to covered weapons to promptly notify their 
employing licensee or certificate holder of the occurrence of any 
disqualifying event.
    (k) Procedures for processing fingerprint checks. (1) Licensees and 
certificate holders, using an appropriate method listed in Sec.  73.4, 
shall submit one completed, legible standard fingerprint card (FBI Form 
FD-258, ORIMDNRCOOOZ) or, where practicable, other electronic 
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-
7232, or by e-mail to [email protected].
    (2) Licensees and certificate holders shall indicate on the 
fingerprint card or other electronic fingerprint record that the 
purpose for this fingerprint check is the accomplishment of a firearms 
background check for personnel whose duties require, or will require, 
access to covered weapons. Licensees and certificate holders shall add 
the following information to the FBI Form FD-258 fingerprint card or 
electronic fingerprint records submitted to the NRC:
    (i) For fingerprints submitted to the NRC for the completion of a 
firearms background check only, the licensee or certificate holder will 
enter the terms ``MDNRCNICZ'' in the ``ORI'' field and ``Firearms'' in 
the ``Reasons Fingerprinted'' field of the FBI Form FD-258.
    (ii) For fingerprints submitted to the NRC for the completion of 
both an access authorization check or personnel security clearance 
check and a firearms background check, the licensee or certificate 
holder will enter the terms ``MDNRC000Z'' in the ``ORI'' field and 
``Employment and Firearms'' in the ``Reasons Fingerprinted'' field of 
the FBI Form FD-258.
    (3) Licensees and certificate holders shall establish procedures 
that produce high quality fingerprint images, cards, and records with a 
minimal rejection rate.
    (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

[[Page 6239]]

includes one free resubmission if the initial submission is returned by 
the FBI because the fingerprint impressions cannot be classified. The 
one free resubmission must have the FBI Transaction Control Number 
reflected on the resubmission. 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 resubmittal, if necessary. 
Previously rejected submissions may not be included with the third 
submission because the submittal will be rejected automatically.
    (5) 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. For a 
firearms background check by itself, the FBI will only provide the 
``proceed,'' ``delayed,'' or ``denied'' responses and will not provide 
the FBI's fingerprint record.
    (l) [Reserved]
    (m) Fees. (1) Fees for the processing of firearms background checks 
are due upon application. The fee for the processing of a firearms 
background check consists of a fingerprint fee and a NICS check fee. 
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. Nuclear Regulatory 
Commission.'' Combined payment for multiple applications is acceptable. 
The Commission publishes the amount of the firearms background check 
application fee on the NRC's public Web site.\4\ The Commission will 
directly notify licensees and certificate holders who are subject to 
this regulation of any fee changes.
---------------------------------------------------------------------------

    \4\ For information on the current fee amount, go to the 
Electronic Submittals page at http//www.nrc.gov/site-help/e-
submittals.html, and see the link for Firearms Background Checks 
under Electronic Submission Systems.
---------------------------------------------------------------------------

    (2) The application fee for the processing of fingerprint checks 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.
    (3) The application fee for the processing of NICS checks is an 
administrative processing fee assessed by the NRC. The FBI does not 
charge a fee for processing NICS checks.
    (n) Processing of the NICS portion of a firearms background check. 
(1) The NRC will forward the information contained in the submitted NRC 
Forms 754 to the FBI for evaluation against the NICS databases. Upon 
completion of the NICS portion of the firearms background check, the 
FBI will inform the NRC of the results with one of three responses 
under 28 CFR part 25; ``proceed,'' ``delayed,'' or ``denied,'' 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.
    (2) The submitting licensee or certificate holder shall provide 
these results to the individual who completed the NRC Form 754.
    (o) 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.
    (p) Appeals and resolution of erroneous system information.
    (1) Individuals who require a firearms background check under this 
section and who receive a ``denied'' or a ``delayed'' NICS response may 
not be assigned duties requiring access to covered weapons, except as 
provided under paragraph (b) of this section, 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 their specific firearms background check.
    (4)(i) 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.
    (ii) 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 received the 
``denied'' response.
    (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 
first contact the FBI at the address stated in paragraph (p)(4)(i) of 
this section.
    (i) The individual shall file any appeal of a ``denied'' response 
or file a request to resolve a ``delayed'' response within 45 calendar 
days of the date the NRC forwards the results of the firearms 
background check to the licensee or certificate holder.
    (ii) 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 adverse 
response. These individuals must supply this information to the FBI 
within 45 calendar days after the FBI's response is issued.
    (iii) Individuals may request extensions of the time to supply the 
additional information requested by the FBI in support of a timely 
appeal or resolution request. These extension requests shall be made 
directly to the FBI. The FBI may grant an extension request for good 
cause, as determined by the FBI.
    (iv) 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.
    (v) 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.

[[Page 6240]]

    (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.
    (7) The failure of an individual to timely initiate an appeal or 
resolution request or timely provide additional information requested 
by the FBI will result in the barring of the individual or abandonment 
of the individual's appeal or resolution request.
    (8) Appeals or resolution requests that are abandoned or result in 
debarment because of an individual's failure to comply with submission 
deadlines may only be pursued, at the sole discretion of a licensee or 
certificate holder, after the resubmission of a firearms background 
check request on the individual.
    (9) 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 or periodic firearms background checks.
    (q) Protection of information. (1) Each licensee or certificate 
holder who obtains a firearms background check and NRC Form 754 
information on individuals under this section shall establish and 
maintain a system of files and procedures to protect the records and 
personal information from unauthorized disclosure.
    (2) The licensee or certificate holder may not disclose the record 
or personal information collected and maintained to persons other than 
the subject individual, his/her representative, or to those who have a 
need to have access to the information in performing assigned duties in 
the process of granting access to covered weapons. No individual 
authorized to have access to the information may re-disseminate the 
information to any other individual who does not have a need to know.
    (3) The personal information obtained on an individual from a 
firearms background check may be transferred to another licensee or 
certificate holder--
    (i) Upon the individual's written request to the licensee or 
certificate holder holding the data to re-disseminate the information 
contained in his/her file; and
    (ii) Upon verification from the gaining licensee or certificate 
holder of information such as name, date of birth, social security 
number, sex, and other applicable physical characteristics for 
identification.
    (4) The licensee or certificate holder shall make firearms 
background check records and NRC Forms 754 obtained under this section 
available for examination by an authorized representative of the NRC to 
determine compliance with applicable regulations and laws.
    6. In Sec.  73.46, paragraph (b)(13) is added to read as follows:


Sec.  73.46  Fixed site physical protection systems, subsystems, 
components, and procedures.

* * * * *
    (b) * * *
    (13)(i) The licensee shall ensure that the firearms background 
check requirements of Sec.  73.19 of this part are met for all members 
of the security organization whose official duties require access to 
covered weapons or who inventory enhanced weapons.
    (ii) For licensees who are issued a license after [effective date 
of final rule], the licensee shall ensure that the firearms background 
check requirements of Sec.  73.19 of this part are met for all members 
of the security organization whose official duties require access to 
covered weapons or who inventory enhanced weapons. Additionally and 
notwithstanding the implementation schedule provisions of Sec.  
73.19(b), such licensees shall ensure that the firearms background 
check requirements of Sec.  73.19 are satisfactorily completed within 6 
months of the issuance of the license, or within 6 months of the 
implementation of a protective strategy that uses covered weapons, 
whichever is later.
* * * * *
    7. In Sec.  73.55, paragraph (b)(12) is added to read as follows:


Sec.  73.55  Requirements for physical protection of licensed 
activities in nuclear power reactors against radiological sabotage.

* * * * *
    (b) * * *
    (12)(i) The licensee shall ensure that the firearms background 
check requirements of Sec.  73.19 of this part are met for all members 
of the security organization whose official duties require access to 
covered weapons or who inventory enhanced weapons.
    (ii) For licensees who are issued a license after [effective date 
of final rule], the licensee shall ensure that the firearms background 
check requirements of Sec.  73.19 of this part are met for all members 
of the security organization whose official duties require access to 
covered weapons or to inventory enhanced weapons. Additionally and 
notwithstanding the implementation schedule provisions of Sec.  
73.19(b), such licensees shall ensure that the firearms background 
check requirements of Sec.  73.19 are satisfactorily completed within 6 
months of the issuance of the license, or within 6 months of the 
implementation of a protective strategy that uses covered weapons, 
whichever is later.
* * * * *
    8. Section 73.71 is revised to read as follows:


Sec.  73.71   Reporting and recording of safeguards events.

    (a) 15-minute notifications--facilities. Each licensee or 
certificate holder subject to the provisions of Sec. Sec.  73.20, 
73.45, 73.46, or 73.55 shall notify the NRC Headquarters Operations 
Center, as soon as possible but not later than 15 minutes after--
    (1) The discovery of an imminent or actual hostile action against a 
nuclear power or production reactor or Category I SSNM facility; or
    (2) The initiation of a security response in accordance with a 
licensee's or certificate holder's safeguards contingency plan or 
protective strategy, based on an imminent or actual hostile action 
against a nuclear power reactor or Category I SSNM facility;
    (3) These notifications shall:
    (i) Identify the facility name;
    (ii) Include the authentication code; and
    (iii) Briefly describe the nature of the hostile action or event, 
including:
    (A) Type of hostile action or event (e.g., armed assault, vehicle 
bomb, credible bomb threat, etc.); and
    (B) Current status (i.e., imminent, in progress, or neutralized).
    (4) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (5) The licensee or certificate holder is not required to report 
security responses initiated as a result of threat or warning 
information communicated to the licensee or certificate holder by the 
NRC.
    (6) A licensee's or certificate holder's request for immediate 
local law enforcement agency (LLEA) assistance can take precedence over 
the notification to the NRC.

[[Page 6241]]

    (b) 15-minute notifications--shipments. Each licensee or 
certificate holder subject to the provisions of Sec. Sec.  73.20, 
73.25, 73.26, or 73.37 shall notify the NRC Headquarters Operations 
Center or make provisions to notify the NRC Headquarters Operations 
Center, as soon as possible but not later than 15 minutes after--
    (1) The discovery of an actual or attempted act of sabotage against 
shipments of spent nuclear fuel or high-level radioactive waste;
    (2) The discovery of an actual or attempted act of sabotage or of 
theft against shipments of strategic special nuclear material; or
    (3) The initiation of a security response in accordance with a 
licensee's or certificate holder's safeguards contingency plan or 
protective strategy, based on an imminent or actual hostile action 
against a shipment of spent nuclear fuel, high-level radioactive waste, 
or strategic special nuclear material.
    (4) These notifications shall:
    (i) Identify the name of the facility making the shipment, the 
material being shipped, and the last known location of the shipment; 
and
    (ii) Briefly describe the nature of the threat or event, including:
    (A) Type of hostile threat or event (e.g., armed assault, vehicle 
bomb, theft of shipment, etc.); and
    (B) Threat or event status (i.e., imminent, in progress, or 
neutralized).
    (5) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (6) The licensee or certificate holder is not required to report 
security responses initiated as a result of threat or warning 
information communicated to the licensee or certificate holder by the 
NRC.
    (7) A licensee's or certificate holder's request for immediate LLEA 
assistance can take precedence over the notification to the NRC.
    (c) One-hour notifications--facilities. (1) Each licensee or 
certificate holder subject to the provisions of Sec. Sec.  73.20, 
73.45, 73.46, 73.50, 73.51, 73.54, 73.55, 73.60, or 73.67 shall notify 
the NRC Headquarters Operations Center within one hour after discovery 
of the facility safeguards events described in paragraph I of Appendix 
G to this part.
    (2) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (3) Notifications made under paragraph (a) of this section are not 
required to be repeated under this paragraph.
    (d) One-hour notifications--shipments. (1) Each licensee or 
certificate holder subject to the provisions of Sec. Sec.  73.25, 
73.26, 73.27, 73.37, and 73.67 shall notify the NRC Headquarters 
Operations Center within one hour after discovery of the transportation 
safeguards events described in paragraph I of Appendix G to this part.
    (2) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (3) Notifications made under paragraph (b) of this section are not 
required to be repeated under this paragraph.
    (e) Four-hour notifications--facilities. (1) Each licensee subject 
to the provisions of Sec. Sec.  73.20, 73.45, 73.46, 73.50, 73.51, 
73.54, 73.55, 73.60, or 73.67 shall notify the NRC Headquarters 
Operations Center, as soon as possible but not later than four hours 
after discovery of the safeguards events described in paragraph II of 
Appendix G to this part.
    (2) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (f) Eight-hour notifications--facilities. (1) Each licensee subject 
to the provisions of Sec. Sec.  73.20, 73.45, 73.46, 73.50, 73.51, 
73.54, 73.55, 73.60, or 73.67 shall notify the NRC Headquarters 
Operations Center, as soon as possible but not later than eight hours 
after discovery of the safeguards events described in paragraph III of 
Appendix G to this part.
    (2) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (g) Enhanced weapons--stolen or lost. (1) Each licensee or 
certificate holder possessing enhanced weapons in accordance with the 
provisions of Sec.  73.18 shall--
    (i) Notify the NRC Headquarters Operations Center, as soon as 
possible but not later than one hour after the discovery of any stolen 
or lost enhanced weapons possessed by the licensee or certificate 
holder. This notification applies to enhanced weapons that were stolen 
or lost from within a licensee's or certificate holder's protected 
area, vital area, or material access area.
    (ii) Notify the NRC Headquarters Operations Center, as soon as 
possible but not later than four hours subsequent to the notification 
of the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) 
of the discovery of any stolen or lost enhanced weapons possessed by 
the licensee or certificate holder. This notification applies to 
enhanced weapons that were stolen or lost from outside of the 
licensee's or certificate holder's protected area, vital area, or 
material access area.
    (iii) Notify the appropriate local law enforcement officials, as 
soon as possible but not later than 48 hours of the discovery of stolen 
or lost enhanced weapons. These notifications must be made by telephone 
to the appropriate local law enforcement officials. Licensees and 
certificate holders shall identify the appropriate local law 
enforcement officials for these notifications and include their contact 
phone number(s) in written procedures.
    (2) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (3) Independent of the requirements of this section, licensees and 
certificate holders possessing enhanced weapons in accordance with 
Sec.  73.18 also have an obligation under ATF's regulations to 
immediately upon discovery notify ATF of any stolen or lost enhanced 
weapons (see 27 CFR 479.141).
    (h) Enhanced weapons--adverse ATF findings. (1) Each licensee or 
certificate holder possessing enhanced weapons in accordance with Sec.  
73.18 shall--
    (i) Notify the NRC Headquarters Operations Center as soon as 
possible but not later than 24 hours after receipt of an adverse 
inspection or enforcement finding or other adverse notice from the ATF 
regarding the licensee's or certificate holder's possession, receipt, 
transfer, or storage of enhanced weapons; and
    (ii) Notify the NRC Headquarters Operations Center as soon as 
possible but not later than 24 hours after receipt of an adverse 
inspection or enforcement finding or other adverse notice from the ATF 
regarding the licensee's or certificate holder's ATF issued Federal 
firearms license.
    (2) Notifications must be made according to paragraph (j) of this 
section, as applicable.
    (i) [Reserved]
    (j) Notification process. (1) Each licensee and certificate holder 
shall make the telephonic notifications required by paragraphs (a), 
(b), (c), (d), (e), (f), (g), and (h) of this section to the NRC 
Headquarters Operations Center via any available telephone system. 
Commercial telephone numbers for the NRC Headquarters Operations Center 
are specified in Table 1 of Appendix A of this part.
    (2) Licensees and certificate holders shall make required 
telephonic notifications via any method that will ensure that a report 
is received by the NRC Headquarters Operations Center or other 
specified government officials within the timeliness requirements of 
paragraphs (a), (b), (c), (d), (e), (f), (g), and (h) of this section, 
as applicable.

[[Page 6242]]

    (3) Notifications required by this section that contain Safeguards 
Information may be made to the NRC Headquarters Operations Center 
without using secure communications systems under the exception of 
Sec.  73.22(f)(3) of this part for emergency or extraordinary 
conditions.
    (4)(i) Notifications required by this section that contain 
classified national security information and/or restricted data must be 
made to the NRC Headquarters Operations Center using secure 
communications systems appropriate to the classification level of the 
message. Licensees and certificate holders making classified telephonic 
notifications shall contact the NRC Headquarters Operations Center at 
the commercial numbers specified in Table 1 of Appendix A to this part 
and request a transfer to a secure telephone, as specified in paragraph 
III of Appendix A to this part.
    (ii) If the licensee's or certificate holder's secure 
communications capability is unavailable (e.g., due to the nature of 
the security event), the licensee or certificate holder shall provide 
as much information to the NRC as is required by this section, without 
revealing or discussing any classified information, in order to meet 
the timeliness requirements of this section. The licensee or 
certificate holder shall also indicate to the NRC that its secure 
communications capability is unavailable.
    (iii) Licensees and certificate holders using a non-secure 
communications capability may be directed by the NRC Emergency Response 
management to provide classified information to the NRC over the non-
secure system, due to the significance of the ongoing security event. 
In such circumstances, the licensee or certificate holder shall 
document this direction and any information provided to the NRC over a 
non-secure communications capability in the follow-up written report 
required in accordance with paragraph (m) of this section.
    (5)(i) For events reported under paragraph (a) of this section, the 
NRC may request that the licensee or certificate holder maintain an 
open and continuous communication channel with the NRC Headquarters 
Operations Center as soon as possible. Licensees and certificate 
holders shall establish the requested continuous communication channel 
once the licensee or certificate holder has completed other required 
notifications under this section, Sec.  50.72 of this chapter, Appendix 
E of part 50 of this chapter, or Sec.  70.50 of this chapter; or 
completed any immediate actions required to stabilize the plant, to 
place the plant in a safe condition, to implement defensive measures, 
or to request assistance from the LLEA.
    (ii) When established, the continuous communications channel shall 
be staffed by a knowledgeable individual in the licensee's security, 
operations, or emergency response organizations from a location deemed 
appropriate by the licensee.
    (iii) The continuous communications channel may be established via 
any available telephone system.
    (6)(i) For events reported under paragraph (b) of this section, the 
NRC may request that the licensee or certificate holder maintain an 
open and continuous communication channel with the NRC Headquarters 
Operations Center as soon as possible. Licensees and certificate 
holders shall establish the requested continuous communication channel 
once the licensee or certificate holder has completed other required 
notifications under this section, Sec.  50.72 of this chapter, Appendix 
E of part 50 of this chapter, or Sec.  70.50 of this chapter; or 
requested assistance from the LLEA.
    (ii) When established, the continuous communications channel shall 
be staffed by a knowledgeable individual in the communication center 
monitoring the shipment.
    (iii) The continuous communications channel may be established via 
any available telephone system.
    (7) For events reported under paragraphs (c), (d), (e), (f), (g), 
and (h) of this section, the NRC may request that the licensee or 
certificate holder maintain an open and continuous communication 
channel with the NRC Headquarters Operations Center.
    (8) Licensees and certificate holders desiring to retract a 
previous security event report that has been determined to be invalid 
shall telephonically notify the NRC Headquarters Operations Center in 
accordance with paragraph (j) of this section and shall indicate the 
report being retracted and basis for the retraction.
    (k) Safeguards event log. Each licensee or certificate holder 
subject to the provisions of Sec. Sec.  73.20, 73.25, 73.26, 73.37, 
73.45, 73.46, 73.50, 73.51, 73.54, 73.55, 73.60, or 73.67 shall 
maintain a safeguards event log.
    (1) The licensee or certificate holder shall record the facility-
based or transportation-based events described in paragraph IV of 
Appendix G of this part within 24 hours of discovery in the safeguards 
event log.
    (2) The licensee or certificate holder shall retain the safeguards 
event log as a record for three years after the last entry is made in 
each log or until the termination of the license or certificate of 
compliance.
    (l) (Reserved).
    (m) Written reports. (1) Each licensee or certificate holder making 
an initial telephonic notification under paragraphs (a), (b), (c), (d), 
(e), (f), and (g) of this section shall also submit a written follow-up 
report to the NRC within 60 days of the telephonic notification, in 
accordance with Sec.  73.4.
    (2) Licenses and certificate holders are not required to submit a 
written report following a telephonic notification made under 
paragraphs (g) and (h) of this section.
    (3) Licenses and certificate holders are not required to submit a 
written report following a telephonic notification made under paragraph 
(j) of this section involving suspicious event or law enforcement 
interaction specified in paragraphs II(a), II(c), or II(d) of Appendix 
G.
    (4) Each licensee and certificate holder shall submit to the 
Commission written reports that are of a quality that will permit 
legible reproduction and processing.
    (5) Licensees subject to Sec.  50.73 of this chapter shall prepare 
the written report on NRC Form 366.
    (6) Licensees and certificate holders not subject to Sec.  50.73 of 
this chapter shall prepare the written report in letter format.
    (7) In addition to the addressees specified in Sec.  73.4, the 
licensee or certificate holder shall also provide one copy of the 
written report addressed to the Director, Office of Nuclear Security 
and Incident Response (NSIR). The copy of a classified written report 
to the Director, NSIR, shall be provided to the NRC headquarters' 
classified mailing address specified in Table 2 of Appendix A to this 
part or in accordance with paragraph IV of Appendix A to this part.
    (8) The report must include sufficient information for NRC analysis 
and evaluation.
    (9) Significant supplemental information that becomes available 
after the initial telephonic notification to the NRC Headquarters 
Operations Center or after the submission of the written report must be 
telephonically reported to the NRC Headquarters Operations Center under 
paragraph (j) of this section and also submitted in a revised written 
report (with the revisions indicated) as required under paragraph (m) 
of this section.
    (10) Errors discovered in a written report must be corrected in a 
revised written report with the revisions indicated.

[[Page 6243]]

    (11) The revised written report must replace the previous written 
report; the update must be complete and not be limited to only 
supplementary or revised information.
    (12) Each licensee and certificate holder shall maintain a copy of 
the written report of an event submitted under this section as a record 
for a period of three years from the date of the report or until 
termination of the license or the certificate of compliance.
    (13)(i) If the licensee or certificate holder subsequently retracts 
a telephonic notification made under this section as invalid and has 
not yet submitted a written report required by paragraph (m) of this 
section, then submission of a written report is not required.
    (ii) If the licensee or certificate holder subsequently retracts a 
telephonic notification made under this section as invalid, after it 
has submitted a written report required by paragraph (m) of this 
section, then the licensee or certificate holder shall submit a revised 
written report in accordance with paragraph (m) of this section.
    (14) Each written report containing Safeguards Information or 
classified information must be created, stored, marked, labeled, 
handled, and transmitted to the NRC in accordance with the requirements 
of Sec. Sec.  73.21 and 73.22 of this part or with part 95 of this 
chapter, as applicable.
    (n) Declaration of emergencies. Notifications made to the NRC for 
the declaration of an emergency class shall be performed in accordance 
with Sec. Sec.  50.72, 70.50, 72.75, and 76.120 of this chapter, as 
applicable.
    (o) Elimination of duplication. Separate notifications and reports 
are not required for events that are also reportable in accordance with 
Sec. Sec.  50.72, 50.73, 70.50, 72.75, and 76.120 of this chapter. 
However, these notifications should also indicate the applicable Sec.  
73.71 reporting criteria.
    9. In appendix A to part 73, a heading is added for Table 1, the 
first row in Table 1 is revised, the heading for Table 2 is revised, 
and paragraphs III and IV are added to read as follows:

APPENDIX A TO PART 73--U.S. NUCLEAR REGULATORY COMMISSION OFFICES AND 
CLASSIFIED MAILING ADDRESSES

                       Table 1--Mailing Addresses, Telephone Numbers, and E-Mail Addresses
----------------------------------------------------------------------------------------------------------------
                                               Address            Telephone  (24 hour)            E-Mail
----------------------------------------------------------------------------------------------------------------
NRC Headquarters Operations Center...  USNRC, Division of       (301) 816-5100, and      [email protected]
                                        Preparedness and         (301) 816-5151 (fax).    [email protected]
                                        Response, Washington,                             (secure)
                                        DC 20555-0001.
----------------------------------------------------------------------------------------------------------------

* * * * *

Table 2--Classified Mailing Addresses

* * * * *
    III. Classified telephone calls must be made to the telephone 
numbers for the NRC Headquarters Operations Center in Table 1 of 
this appendix and the caller shall request transfer to a secure 
telephone to convey the classified information.
    IV. Classified e-mails must be sent to the secure e-mail address 
specified in Table 1 of this appendix.

    10. In appendix B to part 73, the heading for section I.A in the 
Table of Contents and section I.A are revised to read as follows:

Appendix B to Part 73--General Criteria for Security Personnel

* * * * *
    I. * * *
    A. Employment suitability.
* * * * *
    I. Employment suitability and qualification.
    A. Employment suitability.
    1. Suitability.
    (a) Before employment, or assignment to the security 
organization, an individual shall:
    (1) Possess a high school diploma or pass an equivalent 
performance examination designed to measure basic mathematical, 
language, and reasoning skills, abilities, and knowledge required to 
perform security duties and responsibilities;
    (2) Have attained the age of 21 for an armed capacity or the age 
of 18 for an unarmed capacity; and
    (3) Not have any felony convictions that reflect on the 
individual's reliability.
    (4) Individuals in an armed capacity would not be disqualified 
from possessing or using firearms or ammunition in accordance with 
applicable State or Federal law, to include 18 U.S.C. 922. Licensees 
shall use information that has been obtained during the completion 
of the individual's background investigation for unescorted access 
to determine suitability. Satisfactory completion of a firearms 
background check for the individual under Sec.  73.19 of this part 
will also fulfill this requirement.
    (b) The qualification of each individual to perform assigned 
duties and responsibilities must be documented by a qualified 
training instructor and attested to by a security supervisor.
* * * * *

    11. Appendix G to part 73 is revised to read as follows:

Appendix G to Part 73--Reportable and Recordable Safeguards Events

    Under the provisions of Sec.  73.71(c), (e), and (j), licensees 
and certificate holders subject to the provisions of Sec. Sec.  
73.20, 73.45, 73.46, 73.54, and 73.55 of this part shall 
telephonically report the safeguards events specified under 
paragraphs I, II, and III of this appendix. Under the provisions of 
Sec.  73.71(c), (d), and (j), licensees and certificate holders 
subject to the provisions of Sec. Sec.  73.25, 73.26, 73.27, 73.37, 
73.50, 73.51, 73.60, and 73.67 of this part shall telephonically 
report the safeguards events specified under paragraphs I and III of 
this appendix. Licensees and certificate holders shall make such 
telephonic reports to the Commission in accordance with the 
provisions of Sec.  73.71 and appendix A to this part.
    Under the provisions of Sec.  73.71(k), licensees and 
certificate holders subject to the provisions of Sec. Sec.  73.20, 
73.25, 73.26, 73.37, 73.45, 73.46, 73.50, 73.51, 73.54, 73.55, 
73.60, and 73.67 of this part shall record in a safeguards event log 
the safeguards events specified under paragraph IV of this appendix. 
Licensees and certificate holders shall record these events in 
accordance with the provisions of Sec.  73.71.

I. Events To Be Reported Within One Hour of Discovery

    (a) Significant security events. Any event in which there is 
reason to believe that a person has committed or caused, or 
attempted to commit or cause, or has made a threat to commit or 
cause:
    (1) A theft or diversion of special nuclear material;
    (2) Significant physical damage to any nuclear reactor or 
facility possessing or using Category I strategic special nuclear 
material;
    (3) Significant physical damage to any vehicle transporting 
special nuclear material, spent nuclear fuel, or high-level 
radioactive waste; or to the special nuclear material, spent nuclear 
fuel, or high-level radioactive waste itself;
    (4) The unauthorized operation, manipulation, or tampering with 
any nuclear reactor's controls or with structures, systems, and 
components (SSCs) that results in the interruption of normal 
operation of the reactor; or
    (5) The unauthorized operation, manipulation, or tampering with 
any Category I strategic special nuclear material (SSNM) facility's 
controls or SSCs that

[[Page 6244]]

results in the interruption of normal operation of the facility.
    (b) Unauthorized entry events.
    (1) An actual entry of an unauthorized person into a facility's 
protected area (PA), vital area (VA), material access area (MAA), or 
controlled access area (CAA).
    (2) An actual entry of an unauthorized person into a transport 
vehicle.
    (3) An attempted entry of an unauthorized person with malevolent 
intent into a PA, VA, MAA, or CAA.
    (4) An attempted entry of an unauthorized person with malevolent 
intent into a vehicle transporting special nuclear material, spent 
nuclear fuel, or high-level radioactive waste; or to the special 
nuclear material, spent nuclear fuel, or high-level radioactive 
waste itself.
    (c) Contraband events.
    (1) The actual introduction of contraband into a PA, VA, MAA, or 
CAA.
    (2) The actual introduction of contraband into a transport.
    (3) An attempted introduction of contraband by a person with 
malevolent intent into a PA, VA, MAA, or CAA.
    (4) An attempted introduction of contraband by a person with 
malevolent intent into a vehicle transporting special nuclear 
material, spent nuclear fuel, or high-level radioactive waste; or to 
the special nuclear material, spent nuclear fuel, or high-level 
radioactive waste itself.
    (d) Authorized weapon events.
    (1) The discovery that a standard weapon that is authorized by 
the licensee's security plan is lost or uncontrolled within a PA, 
VA, MAA, or CAA.
    (2) Uncontrolled authorized weapons means weapons that are 
authorized by the licensee's or certificate holder's security plan 
and are not in the possession of authorized personnel or are not in 
an authorized weapons storage location.
    (e) Vehicle barrier system events. For licensees and certificate 
holders with a vehicle barrier system protecting their facility, the 
actual or attempted introduction of explosives or incendiaries 
beyond the vehicle barrier.
    (f) Uncompensated security events. Any failure, degradation, or 
the discovered vulnerability in a safeguard system, for which 
compensatory measures have not been employed, that could allow 
unauthorized or undetected access of--
    (1) Explosives or incendiaries beyond a vehicle barrier;
    (2) Personnel or contraband into a PA, VA, MAA, or CAA; or
    (3) Personnel or contraband into a vehicle transporting special 
nuclear material, spent nuclear fuel, or high-level radioactive 
waste; or to the special nuclear material, spent nuclear fuel, or 
high-level radioactive waste itself.
    (g) Lost shipments of nuclear or radioactive material.
    (1) The discovery of the loss of a shipment of Category I SSNM, 
Category II and III special nuclear material, spent nuclear fuel, or 
high-level radioactive waste.
    (2) The recovery of or accounting for a lost shipment.
    (h) Cyber security events.
    (1) Any event in which there is reason to believe that a person 
has committed or caused, or attempted to cause, or has made a threat 
to commit or cause, an act to modify, destroy, or compromise any 
systems, networks, or equipment that falls within the scope of Sec.  
73.54 of this part.
    (2) Uncompensated cyber security events. Any failure, 
degradation, or the discovered vulnerability in systems, networks, 
and equipment that falls within the scope of Sec.  73.54 of this 
part, for which compensatory measures have not been employed and 
that could allow unauthorized or undetected access into such 
systems, networks, or equipment.
    (i) [Reserved]
    (j) Loss or theft of classified information. The discovery of 
the loss or theft of classified material (e.g., documents, drawings, 
analyses, or data) that contains either National Security 
Information or Restricted Data.
    (k) Loss or theft of Safeguards Information. The discovery of 
the loss or theft of material (e.g., documents, drawings, analyses, 
or data) that contains Safeguards Information--
    (1) Provided that such material could substantially assist an 
adversary in the circumvention of the facility or transport security 
or protective systems or strategies; or
    (2) Provided that such material is lost or stolen in a manner 
that could allow a significant opportunity for the compromise of the 
Safeguards Information.

II. Events To Be Reported Within Four Hours of Discovery

    (a) Suspicious events. Any information received by the licensee 
of suspicious or surveillance activities or attempts at access, 
including:
    (1) Any event or incident involving suspicious activity that may 
be indicative of potential pre-operational surveillance, 
reconnaissance, or intelligence-gathering activities directed 
against the facility. This type of activity may include, but is not 
limited to--
    (A) Attempted surveillance or reconnaissance activity. 
Commercial or military aircraft activity considered routine or non-
threatening by the licensee or certificate holder is not required to 
be reported;
    (B) Elicitation of information from facility personnel relating 
to the security or safe operation of the facility; or
    (C) Challenges to security systems (e.g., willful failure to 
stop for security checkpoints, possible tests of security response 
and security screening equipment, or suspicious entry of watercraft 
into posted off-limits areas).
    (2) Any event or incident involving suspicious aircraft activity 
over or in close proximity to the facility. Commercial or military 
aircraft activity considered routine or non-threatening by the 
licensee or certificate holder is not required to be reported.
    (b) Unauthorized operation or tampering events. An event 
involving--
    The unauthorized operation, manipulation, or tampering of any 
nuclear reactor's or Category I SSNM facility's SSCs that could 
prevent the implementation of the licensee's or certificate holder's 
protective strategy for protecting any target set.
    (c) Suspicious cyber security events.
    (1) Any information received or collected by the licensee or 
certificate holder of suspicious activity that may be indicative of 
tampering, malicious or unauthorized access, use, operation, 
manipulation, modification, potential destruction, or compromise of 
the systems, networks, and equipment that falls within the scope of 
Sec.  73.54 of this part, or the security measures that could weaken 
or disable the protection for such systems, networks, or equipment.
    (2) An attempted but unsuccessful cyber attack or event that 
could have caused significant degradation to any system, network, or 
equipment that falls within the scope of Sec.  73.54 of this part.
    (d) Law enforcement interactions. (1) An event related to the 
licensee's or certificate holder's implementation of their security 
program for which a notification was made to local, State, or 
Federal law enforcement officials and that does not otherwise 
require a notification under paragraph I or the other provisions of 
paragraph II of this appendix.
    (2) An event involving a law enforcement response to the 
facility that could reasonably be expected to result in public or 
media inquiries and that does not otherwise require a notification 
under paragraphs I or the other provisions of paragraph II of this 
appendix.

III. Events To Be Reported Within Eight Hours of Discovery

    Unauthorized operation or tampering events. An event involving--
    (1) The unauthorized operation, manipulation, or tampering with 
any nuclear reactor's controls or SSCs that does not result in the 
interruption of the normal operations of the reactor;
    (2) The unauthorized operation, manipulation, or tampering with 
any Category I SSNM facility's controls or SSCs that does not result 
in the interruption the normal operations of the facility; or
    (3) The tampering, malicious or unauthorized access, use, 
operation, manipulation, or modification of any security measures 
associated with systems, networks, and equipment that falls within 
the scope of Sec.  73.54 of this part, that does not result in the 
interruption of the normal operation of such systems, networks, or 
equipment.

IV. Events To Be Recorded in the Safeguards Event Log Within 24 Hours 
of Discovery

    (a) Compensated security events. Any failure, degradation, or 
discovered vulnerability in a safeguards system, had compensatory 
measures not been established, that could have--
    (1) Allowed unauthorized or undetected access of--
    (i) Explosives or incendiaries beyond a vehicle barrier;
    (ii) Personnel or contraband into a PA, VA, MAA, or CAA; or
    (iii) Personnel or contraband into a vehicle transporting 
special nuclear material, spent nuclear fuel, or high-level 
radioactive waste; or to the special nuclear material, spent nuclear 
fuel, or high-level radioactive waste itself.

[[Page 6245]]

    (2) Degrade the effectiveness of the licensee's or certificate 
holder's cyber security program or allow unauthorized or undetected 
access to any systems, networks, or equipment that fall within the 
scope of Sec.  73.54 of this part. Decreases in the effectiveness of 
the cyber security program include any other threatened, attempted, 
or committed act not previously defined in this appendix that has 
resulted in or has the potential for decreasing the effectiveness of 
the cyber security program in a licensee's or certificate holder's 
NRC-approved cyber security plan.
    (b) Ammunition events.
    (1) A discovery that ammunition that is authorized by the 
licensee's security plan has been lost or uncontrolled inside a PA, 
VA, MAA, or CAA.
    (2) A discovery that unauthorized ammunition is inside a PA, VA, 
MAA, or CAA.
    (3)(i) Uncontrolled authorized ammunition means ammunition 
authorized by the licensee's or certificate holder's security plan 
or contingency response plan that is not in the possession of 
authorized personnel or is not in an authorized ammunition storage 
location.
    (ii) Uncontrolled unauthorized ammunition means ammunition that 
is not authorized by the licensee's or certificate holder's security 
plan or contingency response plan.
    (iii) Ammunition in the possession of law-enforcement personnel 
performing official duties inside a PA, VA, MAA, or CAA is 
considered controlled and authorized.
    (4) The discovery of lost or uncontrolled authorized or 
unauthorized ammunition under circumstances that indicate the 
potential for malevolent intent shall be reported under paragraph 
I(f) of this appendix.
    (c) Loss of control or protection of classified information. A 
discovery that a loss of control over, or protection of, classified 
material containing National Security Information or Restricted Data 
has occurred, provided--
    (1) There does not appear to be evidence of theft or compromise 
of the material, and
    (2) The material is recovered or secured within one hour of the 
loss of control or protection.
    (d) Loss of control or protection of Safeguards Information. A 
discovery that a loss of control over, or protection of, classified 
material containing Safeguards Information has occurred, provided--
    (1) There does not appear to be evidence of theft or compromise 
of the material, and
    (2) The material is recovered or secured within one hour of the 
loss of control or protection; or
    (3) The material would not have allowed unauthorized or 
undetected access to facility or transport contingency response 
procedures or strategies.
    (e) Decreases in the effectiveness of the physical security 
program or the cyber security program. Any other threatened, 
attempted, or committed act not previously defined in this appendix 
that has resulted in or has the potential for decreasing the 
effectiveness of the licensee's or certificate holder's physical 
security program or cyber security program below that committed to 
in a licensee's or certificate holder's NRC-approved physical 
security plan or cyber security plan.
    (f) Non duplication. Events reported under paragraphs I, II, or 
III of this appendix are not required to be recorded under the 
safeguards event log.

    Dated at Rockville, Maryland, this 21st day of January 2011.

    For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.

[FR Doc. 2011-1766 Filed 2-2-11; 8:45 am]
BILLING CODE 7590-01-P