[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Proposed Rules]
[Pages 5743-5746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00974]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 90, No. 11 / Friday, January 17, 2025 /
Proposed Rules
[[Page 5743]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
[NRC-2024-0167]
Law Enforcement Response in Power Reactor Physical Protection
Programs
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed interpretive rule; request for comment.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a
notice of proposed interpretation of regulatory requirements to clarify
that a power reactor applicant or licensee may, when designing or
updating its physical protection program, incorporate law enforcement
response into its site physical protection program through the
implementation of a site-specific Security Bounding Time. This proposed
interpretation would provide flexibility to applicants and licensees by
allowing them to consider the assistance of law enforcement responders
as part of the physical protection program. The NRC is requesting
comment on the proposed interpretation and will hold a public meeting
during the public comment period to address questions regarding the
proposed interpretation and to facilitate public comments.
DATES: Submit comments on the proposed interpretation by March 3, 2025.
Comments received after this date will be considered if it is practical
to do so, but the NRC is able to ensure consideration only for comments
received before this date.
ADDRESSES: You may submit comments by any of the following methods;
however, the NRC encourages electronic comment submission through the
Federal rulemaking website:
Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2024-0167. Address
questions about NRC dockets to Helen Chang; telephone: 301-415-3228;
email: [email protected]. For technical questions contact the
individuals listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
Email comments to: [email protected]. If you do
not receive an automatic email reply confirming receipt, then contact
us at 301-415-1677.
Fax comments to: Secretary, U.S. Nuclear Regulatory
Commission at 301-415-1101.
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
Hand deliver comments to: 11555 Rockville Pike, Rockville,
Maryland 20852, between 7:30 a.m. and 4:15 p.m. eastern time, Federal
workdays; telephone: 301-415-1677.
You can read a plain language description of this proposed
interpretation at https://www.regulations.gov/docket/NRC-2024-0167. For
additional direction on obtaining information and submitting comments,
see ``Obtaining Information and Submitting Comments'' in the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Wellington Tejada, Office of Nuclear
Security and Incident Response, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; telephone: 301-415-1623; email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Obtaining Information and Submitting Comments
A. Obtaining Information
Please refer to Docket ID NRC-2024-0167 when contacting the NRC
about the availability of information for this action. You may obtain
publicly available information related to this action by any of the
following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2024-0167.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Document collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's Public
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or
by email to [email protected]. For the convenience of the reader,
instructions about obtaining materials referenced in this document are
provided in the ``Availability of Documents'' section.
NRC's PDR: The PDR, where you may examine and order copies
of publicly available documents, is open by appointment. To make an
appointment to visit the PDR, please send an email to
[email protected] or call 1-800-397-4209 or 301-415-4737, between 8
a.m. and 4 p.m. eastern time, Monday through Friday, except Federal
holidays.
B. Submitting Comments
The NRC encourages electronic comment submission through the
Federal rulemaking website (https://www.regulations.gov). Please
include Docket ID NRC-2024-0167 in your comment submission.
The NRC cautions you not to include identifying or contact
information that you do not want to be publicly disclosed in your
comment submission. The NRC will post all comment submissions at
https://www.regulations.gov as well as enter the comment submissions
into ADAMS. The NRC does not routinely edit comment submissions to
remove identifying or contact information.
If you are requesting or aggregating comments from other persons
for submission to the NRC, then you should inform those persons not to
include identifying or contact information that they do not want to be
publicly disclosed in their comment submission. Your request should
state that the NRC does not routinely edit comment submissions to
remove such information before making the comment submissions available
to the public or entering the comment into ADAMS.
II. Background
In the NRC's regulatory framework, power reactor licensees
regulated under title 10 of the Code of Federal Regulations (10 CFR)
part 50, ``Domestic Licensing of Production and Utilization Facilities,
or 10 CFR part 52, ``Licenses, Certifications, and Approvals for
Nuclear Power Plants,'' are required to provide physical protection
sufficient to prevent radiological sabotage from a hostile adversary,
the characteristics of which fall within a defined design basis threat
(DBT). The DBT of radiological
[[Page 5744]]
sabotage has been part of the NRC's regulations in 10 CFR part 73,
``Physical Protection of Plants and Materials,'' since 1979. To date,
the Commission has interpreted its regulatory requirements to mean that
a licensee's defense against the DBT may not consider the assistance
provided by local, State, or Federal law enforcement agencies.
In 2005, the NRC undertook a rulemaking to revise the DBT of
radiological sabotage as directed by Section 651 of the Energy Policy
Act of 2005. In the final rule, ``Design Basis Threat,'' the Commission
set forth its views on the corresponding roles of licensee security
forces and offsite Federal and State law enforcement agencies in
protecting against the threats applicable to power reactors (72 FR
12705). As the Commission explained, the DBT reflects the Commission's
determination of the composite set of adversary features against which
private security forces should reasonably have to defend. Although the
rule sets an upper limit on the threat that must be considered in the
design of licensee security programs, the Commission noted that the
defense of our Nation's critical infrastructure is a shared
responsibility between the NRC, the Department of Defense, the
Department of Homeland Security, Federal and State law enforcement, and
other Federal agencies. The Commission also noted that, although
licensees are not required to develop protective strategies to defend
against beyond-DBT events, it should not be concluded that licensees
can provide no defense against those threats. The Commission expressed
its confidence that a licensee's security force would respond to any
threat--no matter the size or capabilities--that may present itself,
and the Commission stated that it expects that licensees and Federal
and State authorities will use whatever resources are necessary in
response to both DBT and beyond-DBT events.
In 2006, the Commission undertook a separate rulemaking effort to
amend its security regulations in Sec. 73.55 and add new security
requirements pertaining to nuclear power reactors. As revised in the
2009 final rule, ``Power Reactor Security Requirements,'' the NRC
regulations in Sec. 73.55(b)(1) through (3) provide a general
performance objective and requirements for a licensee to establish and
maintain a physical protection program that must protect against the
DBT of radiological sabotage (74 FR 13926). Specific requirements for
the design and implementation of the physical protection program are
provided in Sec. 73.55(c) through (q). These regulatory requirements
establish that the licensee has the ultimate responsibility for
protecting an operating power reactor site against an adversary force
up to and including the DBT of radiological sabotage. In the 2009 final
rule, the Commission further stated that a licensee's ability to defend
against the DBT of radiological sabotage is not dependent on the
availability of offsite responders.
Taken together, the 2007 and 2009 final rules reflect an
interpretation of the security regulations that required licensees to
establish a physical protection program, including a private security
organization, that is capable of defending against the DBT without the
assistance of local, State, or Federal law enforcement. As currently
implemented, licensee physical protection programs do not include
credit for local, State, or Federal law enforcement response. While
Sec. 73.55(k)(9) and paragraph II.B.3.d in appendix C to 10 CFR part
73 require licensees to document and maintain response agreements with
law enforcement agencies to the extent practicable, licensees do not
recognize this law enforcement response as an essential contributor for
how the site will defend against the DBT.
On October 9, 2018, the Commission issued Staff Requirements
Memorandum (SRM) to SECY-17-0100, ``Staff Requirements--SECY-17-0100--
Security Baseline Inspection Program Assessment Results and
Recommendations for Program Efficiencies,'' and directed the staff to
provide recommendations for providing credit for response by local,
State, and Federal law enforcement in the NRC's security inspection
program. On July 30, 2020, in SECY-20-0070, ``Technical Evaluation of
the Security Bounding Time Concept for Operating Nuclear Power
Plants,'' the NRC staff presented the Commission with a methodology for
power reactor licensees to incorporate law enforcement response into
their physical protection programs and leverage additional operator
actions and equipment to further strengthen site capabilities to
protect against the DBT of radiological sabotage through a site-
specific Security Bounding Time (SBT). A redacted version of SECY-20-
0070 is publicly available and describes how the SBT concept could be
implemented at a power reactor site.
On June 6, 2024, the Commission issued SRM-SECY-20-0070, ``Staff
Requirements--SECY-20-0070--Technical Evaluation of the Security
Bounding Time Concept for Operating Nuclear Power Plants,'' approving
the staff's recommendation to reinterpret existing security regulations
through a notice of interpretation. This proposed interpretation of
regulatory requirements would reinterpret Sec. 73.1 and Sec. 73.55 to
allow a licensee to consider the assistance of law enforcement
responders as part of its physical protection program through a site-
specific SBT and revise its security plans and site procedures to
reflect this reading of the regulations in part 73.
III. Proposed Interpretation
Under the regulatory requirements in Sec. 3.55(b)(1) through (3),
operating power reactor licensees are required to establish and
maintain a physical protection program, to include a security
organization, with the capabilities to detect, assess, interdict, and
neutralize threats up to and including the DBT of radiological sabotage
at all times. This proposed interpretation would allow operating power
reactor licensees to establish a site-specific SBT that incorporates
law enforcement response as a component of a physical protection
program that meets the requirements of Sec. 73.55(b)(1) through (3).
The SBT concept would provide a methodology for developing robust
tactical response plans with participating law enforcement agencies to
preclude prolonged adversary interference with plant operator actions
following the initiation of an attack. A site-specific SBT represents
the amount of time, following the initiation of an attack, needed to
execute this response plan, preclude adversary interference, and
complete any planned operator actions to prevent damage to the reactor
core or spent fuel. A more detailed description of the SBT concept is
found in SECY-20-0070.
A licensee that chooses to develop an SBT, through the
incorporation of law enforcement response as a component of its
physical protection program, will be responsible for justifying its
site-specific SBT and providing assurance that its overall physical
protection program meets the requirements of Sec. 73.55(b)(1) through
(3). Licensees cannot compel law enforcement agencies to maintain the
capabilities documented in any specific agreements they have with
licensees, and the NRC does not have regulatory authority over law
enforcement agencies. Nevertheless, the NRC has confidence that, when
called upon, law enforcement agencies will honor their commitments. As
stated in the 2007 DBT final rule, the Commission expects that
licensees and State and Federal authorities will use whatever resources
are necessary in response to both DBT and beyond-DBT events.
Additionally, the Commission has recognized in its regulations, in the
[[Page 5745]]
emergency planning context, the reality that in an actual emergency,
State and local government officials will exercise their best efforts
to protect the health and safety of the public (Sec.
50.47(c)(1)(iii)(B)). The NRC expects that the exercising of best
efforts would extend to law enforcement agencies responding to a
security emergency, consistent with the existing agreements between
licensees and those agencies. Accordingly, it is reasonable and prudent
to allow licensees to consider the assistance of law enforcement
responders when designing their physical protection programs.
The inclusion of law enforcement response in the licensee's
physical protection program does not mean that law enforcement
responders are subject to the same training requirements as members of
the licensee's security organization. The NRC's regulations in Sec.
73.55(d)(3) state that the licensee may not permit any individual to
implement any part of the physical protection program unless the
individual has been trained, equipped, and qualified to perform their
assigned duties and responsibilities in accordance with section VI of
appendix B to 10 CFR part 73 and the licensee's Training and
Qualification Plan. Further, Sec. 73.55(k)(1) states that the licensee
shall establish and maintain, at all times, properly trained, qualified
and equipped personnel required to interdict and neutralize threats up
to and including the DBT of radiological sabotage, to prevent
significant core damage and spent fuel sabotage. These provisions are
properly applied solely to the licensee's own personnel (i.e.,
employees or contractors), and not to any law enforcement responders
who may be part of the law enforcement response that would be
considered a component of the physical protection program through a
site-specific SBT. Although law enforcement responders may be
considered a part of the licensee's physical protection program, they
should not be considered security personnel or members of the
licensee's security organization required by Sec. 73.55(d)(1), nor
should they be considered among the individuals subject to the
requirements of Sec. 73.55(d)(3).
IV. Discussion
This proposed interpretation, if issued, would apply to any
licensee of an operating power reactor or applicant for a power reactor
license under 10 CFR part 50 or part 52. The NRC expects that the
proposed interpretation would allow applicants and licensees to
consider, when designing their physical protection programs, that law
enforcement agencies will exercise their best efforts to protect the
health and safety of the public.
The proposed interpretation would not supplant any physical
protection strategies currently permitted under the NRC's regulations.
Rather, the proposed interpretation explains that applicants and
licensees could consider the expected law enforcement response,
developed and documented in accordance with the SBT concept, as part of
the physical protection program and revise their security plans and
site procedures to reflect this consideration. The proposed
interpretation would recognize how, following initiation of an attack,
the security at a site evolves over time and additional support from
law enforcement is expected to be provided to the licensee to continue
to defend against the DBT. Recognizing the role of law enforcement
support in a licensee's physical protection program does not reduce the
NRC's confidence that licensees can maintain adequate physical
protection of their sites against the DBT.
The NRC intends to issue regulatory guidance for developing
acceptable site-specific SBTs and associated response plans with
participating law enforcement agencies. This guidance will describe
planning considerations and tactical response plan elements that should
be included in a site-specific SBT. Additionally, the NRC intends to
issue regulatory guidance to assist licensees in determining whether
Commission approval would be required prior to implementing an SBT at
an operating power reactor facility. In accordance with Sec.
50.54(p)(1), licensees may not make a change which would decrease the
effectiveness of a physical security plan without prior Commission
approval. Prior Commission approval is not required if the changes do
not decrease the safeguards effectiveness of the plan; however, these
changes must be reported to the NRC within 2 months after the change is
made. Implementing an SBT at a site would require a change to the
site's security plans, and licensees would need to use existing site or
fleet processes to assess the impact of SBT implementation on the
effectiveness of the site security plans prior to implementation. The
regulatory guidance would include a method that the NRC considers
acceptable to determine whether a change would decrease the safeguards
effectiveness of the plan, particularly as it relates to SBT
implementation, to ensure the appropriate level of NRC review is
completed. The NRC plans to solicit public comment on the proposed
regulatory guidance in calendar year 2025.
V. Backfit and Issue Finality Considerations
Under Sec. 50.109(a), backfitting is defined in part as the NRC's
imposition of staff interpretations of its regulations on nuclear power
reactor licensees or certain nuclear power reactor applicants.
Provisions analogous to the backfitting requirements, referred to as
issue finality provisions, appear in 10 CFR part 52.
The proposed interpretation of regulatory requirements would expand
the options available for licensee physical protection programs to meet
the NRC's regulatory requirements. Under the proposed interpretation, a
licensee could continue to comply with the requirements of its current
licensing basis or voluntarily choose to adopt an SBT by revising its
security plans and site procedures to reflect the role of law
enforcement in the site protective strategy. Because the NRC would not
be imposing a staff interpretation of the regulations on nuclear power
reactor licensees, this proposed interpretation would not meet the
definition of backfitting under Sec. 50.109 and, therefore, would not
constitute a backfit or affect the issue finality of any approval
issued under 10 CFR part 52.
VI. Request for Comments
The NRC is requesting comments on this proposed interpretation of
regulatory requirements. The NRC will publish a document in the Federal
Register containing an evaluation of the significant comments and any
revisions to this proposed interpretation resulting from the comments
and their evaluation.
VII. Availability of Documents
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ADAMS accession No./
Document weblink/Federal
Register citation
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Design Basis Threat, Final Rule, March 19, 2007. 72 FR 12705.
Power Reactor Security Requirements, Final Rule, 74 FR 13926.
March 27, 2009.
[[Page 5746]]
SRM-SECY-17-0100, ``Staff Requirements--SECY-17- ML18283A072.
0100--Security Baseline Inspection Program
Assessment Results and Recommendations for
Program Efficiencies,'' October 9, 2018.
SECY-20-0070, ``Technical Evaluation of the ML20126G265.
Security Bounding Time Concept for Operating
Nuclear Power Plants'' (Redacted), November 8,
2021.
SRM-SECY-20-0070, ``Staff Requirements--SECY-20- ML24158A083.
0070--Technical Evaluation of the Security
Bounding Time Concept for Operating Nuclear
Power Plants,'' June 6, 2024.
Energy Policy Act of 2005 (Pub. L. 109-58)...... https://www.govinfo.gov/app/details/PLAW-109publ58 109publ58.
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VIII. Paperwork Reduction Act
This proposed interpretation does not contain any new or amended
collections of information subject to the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). Existing collections of information were
approved by the Office of Management and Budget (OMB), approval numbers
3150-0002 and 3150-0011.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the document requesting
or requiring the collection displays a currently valid OMB control
number.
IX. Public Meeting
The NRC plans to conduct a public meeting to address questions
regarding the proposed interpretation. The NRC will publish a notice of
the location, time, and agenda of the meeting on the NRC's public
meeting website at least 10 calendar days before the meeting.
Stakeholders can monitor the NRC's public meeting website for
information about the public meeting at https://www.nrc.gov/public-involve/public-meetings/index.cfm.
Dated December 9, 2024.
For the Nuclear Regulatory Commission.
John McKirgan,
Director, Division of Physical and Cyber Security Policy, Office of
Nuclear Security and Incident Response.
[FR Doc. 2025-00974 Filed 1-16-25; 8:45 am]
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