POLICY ISSUE 

NOTATION VOTE 

February 17, 2012 SECY-12-0027

FOR: The Commissioners 

FROM: R. W. Borchardt 

Executive Director for Operations 

SUBJECT: PREEMPTION AUTHORITY PURSUANT TO SECTION 161A., “USE OF 

FIREARMS BY SECURITY PERSONNEL,” OF THE ATOMIC ENERGY 

ACT OF 1954, AS AMENDED 

PURPOSE: 

To request that the Commission designate the classes of U.S. Nuclear Regulatory Commission 

(NRC)-licensed facilities, radioactive material, or other property eligible to receive preemption 

authority and enhanced weapons authority under Section 161A. of the Atomic Energy Act of 

1954, as amended (AEA). This authority would allow designated licensees and certificate 

holders to possess certain weapons notwithstanding State and Federal laws. The staff is also 

requesting that the Commission delegate to the staff the authority to approve an applicant’s 

application for preemption authority, issue confirmatory orders to qualified facilities, and issue 

corresponding letters to relevant State officials. This paper does not address any new 

commitments or resource implications. 

SUMMARY: 

As part of a larger proposed rule entitled “Power Reactor Security Requirements,” the proposed 

Enhanced Weapons rulemaking was published in the Federal Register (FR) (71 FR 62663) on 

October 26, 2006. In this proposed rule, the NRC informed the public that the NRC would 

consider granting preemption authority and/or the authority to possess certain enhanced 

weapons under Confirmatory Orders in advance of a final rulemaking. 

CONTACT: Dennis Gordon, NSIR/DSP 

 (301) 415-6671
The Commissioners -2- 

To date, the staff has received applications from three power reactor licensees for preemption 

authority, and an application from one category I fuel cycle facility for both preemption and 

enhanced weapons authority under Section 161A. Before the staff can act on these 

applications, Commission action is required to designate the classes of NRC-licensed facilities 

that are eligible to receive preemption authority and to establish the process to be used to 

implement this authority. 

BACKGROUND: 

Section 653 of the Energy Policy Act of 2005, amended the AEA by adding a new Section 161A. 

Section 161A. confers upon the Commission the authority to permit the security personnel of 

designated NRC licensees or certificate holders to possess and use firearms and large-capacity 

ammunition feeding devices that were not previously permitted to be owned or possessed under 

Commission authority. 

The provisions of Section 161A. of the AEA became effective on September 11, 2009, with the 

publication in the FR of the guidelines approved by the NRC and the U.S. Attorney General, 

entitled, “Guidelines on the Use of Security Personnel in Protecting U.S. NRC-Regulated 

Facilities, Radioactive Material, and Other Property,” (74 FR 46800) (hereafter referred to as the 

“Firearms Guidelines”). 

In accordance with the Firearms Guidelines, designated facilities may apply for preemption 

authority. Preemption authority, if granted, would allow designated NRC licensees to transfer, 

receive, possess, transport, import, and use weapons notwithstanding State, local, and certain 

Federal firearms laws that would prohibit such actions. Licensees may also apply for enhanced 

weapons authority. Enhanced weapons authority would permit designated NRC licensees to 

obtain weapons not previously permitted to be owned or possessed under previous Commission 

authority (i.e., machineguns). Licensees seeking enhanced weapons authority must also obtain 

preemption authority. 

Consistent with Section 161A. of the AEA and the Firearms Guidelines, before granting 

preemption authority, the Commission must do the following through rulemaking or order. 

• Designate the specific classes of NRC licensees or certificate holders and radioactive 

materials or other property for which application for preemption authority, or enhanced 

weapons and preemption authority, can be made. 

• Establish a process for NRC-regulated entities to apply for and obtain preemption 

authority, or enhanced weapons and preemption authority, under Section 161A. of the 

AEA. 

On February 3, 2011, the Commission published in the FR (76 FR 6199) a revised proposed 

enhanced weapons rule, entitled, “Enhanced Weapons, Firearms Background Checks, and 

Security Event Notifications.” The Commission previously published in 71 FR 62663 a 

proposed Enhanced Weapons rule on October 26, 2006, as part of a larger proposed rule 

entitled “Power Reactor Security Requirements.” However, based upon subsequent changes to 

the draft firearms guidelines, the NRC determined that a revised proposed enhanced weapons 

rule was necessary. 

 
The Commissioners -3- 

DISCUSSION: 

In a letter dated April 27, 2011, Entergy Nuclear Operations, Inc. submitted an application for 

preemption authority on behalf of Indian Point Energy Center; in a letter dated August 23, 2011, 

Southern California Edison submitted an application for preemption authority on behalf of San 

Onofre Nuclear Generating Station; and in a letter dated December 22, 2011, Pacific Gas and 

Electric Company (PG&E) submitted an application for preemption authority on behalf of Diablo 

Canyon Power Plant (DCPP). These three power reactor applications request preemption 

authority and do not include a request for enhanced weapons authority. 

In a letter dated January 13, 2012, Babcock & Wilcox Nuclear Operations Group submitted an 

application for both preemption authority and enhanced weapons authority, on behalf of their 

Lynchburg, Virginia facility (B&W NOG-L) a Category I fuel cycle facility. The staff believes that 

the technical details for enhanced weapons authority in advance of a final rule are sufficiently 

different from preemption authority as to warrant discussion in a separate SECY Paper. 

Therefore, for the purpose of this SECY Paper, the staff will address only preemption authority 

in response to the B&W NOG-L application. 

These four licensees are requesting that the NRC grant them preemption authority because 

certain Federal and State laws would prohibit the possession, use, purchase, and maintenance 

of weapons and large-capacity ammunition feeding devices these licensees are currently using 

for protection of their facilities. The need for preemption authority is based on recent changes to 

certain Federal firearms laws and the reconsideration of previous determinations made by State 

officials regarding the applicability of certain State laws at these facilities. These changes have 

resulted in legal uncertainties that directly impact each licensee’s ability to meet Commission 

requirements. For example, in the case of the three power reactors, the requirement of 

Title 10 of the Code of Federal Regulations Part 73, section 73.55(n)(1)(i) states that the 

licensee shall “Establish, maintain, and implement a maintenance, testing, and calibration 

program to ensure that security systems and equipment...maintained in operable condition, and 

are capable of performing their intended functions.” Inability to maintain existing contingency 

response equipment will adversely impact physical protection at these sites and could result in 

violations of current regulatory requirements. 

The staff has initiated the technical review of these applications consistent with the criteria 

established by Section 161A. of the AEA and the Firearms Guidelines. However, in accordance 

with the Firearms Guidelines, the staff cannot make the required determinations on these 

applications until the Commission has designated the specific classes of facilities that are 

eligible to receive preemption authority. Therefore, the staff is recommending that the 

Commission designate the classes of facilities for which licensees and certificate holders are 

authorized to use the preemption authority of Section 161A. of the AEA. Additionally, the staff is 

recommending that the Commission delegate to the staff the authority to make determinations 

on individual preemption applications to include the authority to take associated actions related 

to those determinations. Making this designation and delegation of authority will enable the staff 

to finish the timely review of these preemption applications prior to implementation of the final 

enhanced weapons rule. Without such a designation and delegation of authority, the staff will 

have to submit each application for preemption authority to the Commission for its review and 

approval prior to making necessary determinations and taking associated actions in advance of 

a final enhanced weapons rule. The staff anticipates that the final rule will be submitted to the 

Commission no earlier than December 2012. 
The Commissioners -4- 

In the course of conducting its preliminary reviews of these applications, the staff has identified 

the following policy considerations: 

• The staff is continuing to work with the Federal Bureau of Investigation (FBI) to establish 

and test the process through which the required firearms background checks and 

reinvestigations will be requested and made. This process must be completed prior to 

submission of any request for a firearms background check. Licensees must complete 

these checks before receiving either preemption authority or enhanced weapons 

authority. 

• By application, PG&E requested preemption authority for the two power reactor units 

and one co-located independent spent fuel storage installation (ISFSI) at DCPP. In 

doing so, the licensee has requested that the Commission designate ISFSIs as an 

eligible class of NRC-licensed facilities for which preemption authority is considered 

appropriate. However, the revised proposed enhanced weapons rulemaking does not 

contemplate ISFSIs under the applicability statement, but rather identifies ISFSIs as a 

class of facility that would be considered for inclusion under a future rulemaking. The 

staff’s intent for the revised rulemaking was to establish the regulatory framework for 

granting preemption and enhanced weapons authority to those facilities deemed to be of 

most significance first, with consideration being given to adding other classes of facilities 

in future rulemakings. In light of the PG&E application, the staff is recommending that 

the Commission designate ISFSIs as an eligible class of licensees to receive preemption 

authority. The same security organization is responsible for protection of both the power 

reactors and the co-located ISFSI at the DCPP site, and the protective measures applied 

to both the reactors and the ISFSI are contained in the current NRC-approved DCPP 

security plans. Therefore, the staff believes that including ISFSIs within the class of 

facilities eligible to receive preemption authority will help to ensure regulatory 

consistency at DCPP. However, the staff recognizes that this recommendation has 

implications for the scope of the ongoing enhanced weapons rulemaking. These 

implications have been discussed with the staff responsible for that rulemaking. 

• Should the Commission approve delegating to the staff the authority to review and 

approve preemption applications, the staff intends to use the confirmatory order process 

to issue confirmatory orders granting preemption authority to designated licensees that 

the staff has determined should be granted preemption authority. The confirmatory 

order will set forth the requirements that the staff has determined are appropriate for the 

licensee’s exercise of the granted preemption authority. The staff plans to develop 

requirements that are, to the maximum extent possible, consistent with the proposed 

requirements in the enhanced weapons rule. However, the staff acknowledges that the 

issuance of confirmatory orders may create a regulatory condition in which the 

requirements placed on each licensee by order may be different than those 

requirements contained in the final rulemaking. Upon the effective date of a final 

enhanced weapons rule, the staff will take appropriate steps to modify or rescind the 

confirmatory orders. 

• The staff anticipates that orders may be issued to applicants on or about May 2012. 

These orders would be issued by the Directors, Office of Nuclear Reactor Regulation 

(NRR) for operating reactor facilities, the Office of Federal and State Materials and 
The Commissioners -5- 

Environmental Management Programs (FSME) for decommissioned reactor facilities, 

and the Office of Nuclear Materials Safety and Safeguards (NMSS) for materials 

facilities. The final enhanced weapons rule would be submitted to the Commission for 

review and approval on or about December 2012, with publication in the FR around the 

middle of 2013. It is important to note that the final enhanced weapons rule will mandate 

the firearms background check for all armed personnel at NRC-licensed facilities. 

Because the firearms background check will be mandatory, the issuance of confirmatory 

orders in advance of the final rulemaking will avoid overburdening the firearms 

background check system with a large volume of requests submitted within a short time 

frame in response to the final rulemaking. 

• The staff notes that because granting preemption authority has implications to State 

firearms laws, the staff believes that it is prudent to inform the Governors of affected 

States, Commonwealths, and Territories of the issuance of a confirmatory order by 

sending a letter concurrent with a confirmatory order. This letter will inform the 

appropriate State authorities that the NRC has taken such an action and will facilitate 

dialogue between the recipient and the NRC where appropriate. 

In the event that the Commission does not approve the staff’s recommendations, the staff 

requests that the Commission provide the staff with guidance on how to process these 

applications for preemption authority, as well as any future applications that may come in prior 

to implementation of the final enhanced weapons rulemaking. 

RECOMMENDATIONS: 

The staff recommends that the Commission take the following actions: 

1. Designate all power reactor facilities, ISFSIs, and Category I special nuclear material 

facilities as the specific classes of facilities for which licensees and certificate holders are 

authorized to use the preemption authority of Section 161A. of the AEA. 

2. Delegate to the staff the authority to make determinations on individual applications for 

preemption authority. This action will allow the staff to process current and future 

applications for preemption authority from designated facilities without the need to 

request a notation vote from the Commission for each application received in advance of 

the final enhanced weapons rule. 

 

3. Authorize the Directors, NRR, FSME, and NMSS to grant or deny preemption authority 

applications and issue confirmatory orders to licensees of designated facilities 

requesting preemption authority. 

4. Authorize the Directors, NRR, FSME, and NMSS to issue courtesy letters to the relevant 

State officials (i.e., Governor and/or Attorney General) informing the State officials that 

the NRC has granted or denied preemption authority, as authorized under Section 161A. 

of the AEA to an eligible NRC-licensee within that State. A courtesy copy of the 

notification letter will be provided to the applicable State Liaison Officer. 
The Commissioners -6- 

RESOURCE: 

This paper does not address any new commitments or resource implications that are not 

already budgeted for; however, enabling the staff to respond to preemption authority 

applications as they are received will facilitate agency efficiency and effectiveness by extending 

the processing of these applications over multiple fiscal years in lieu of processing multiple 

concurrent applications in fiscal year 2013 in response to the final rule. 

COORDINATION: 

The Office of Administration is coordinating with the FBI to establish and implement a system for 

processing firearms background checks and reinvestigations. The Office of General Counsel 

has reviewed this paper and has no legal objection. 

 /RA by Martin J. Virgilio for/ 

R. W. Borchardt 

Executive Director 

 for Operations 
The Commissioners -6- 

RESOURCE: 

This paper does not address any new commitments or resource implications that are not 

already budgeted for; however, enabling the staff to respond to preemption authority 

applications as they are received will facilitate agency efficiency and effectiveness by extending 

the processing of these applications over multiple fiscal years in lieu of processing multiple 

concurrent applications in fiscal year 2013 in response to the final rule. 

COORDINATION: 

The Office of Administration is coordinating with the FBI to establish and implement a system for 

processing firearms background checks and reinvestigations. The Office of General Counsel 

has reviewed this paper and has no legal objection. 

 /RA by Martin J. Virgilio for/ 

R. W. Borchardt 

Executive Director 

 for Operations 

ADAMS SUBMISSION NO.: ML113130015 EDATS: NSIR-2012-0002 

OFFICE NSIR/DSP TechEdit BC:OIS BC:ADM BC:NSIR/DSP 

NAME DGordon J. 

Dougherty 

TDonnell DD’Abate RFelts 

DATE 11/9/11 10/06/11 11/17 /11 11/09/2011 11/18/11 

OFFICE Region I Region IV NRR/DORL NSIR/DSO NSIR/DSP 

NAME CMiller via 

e-mail 

TVegel 

via e-mail 

MEvans J. Clifford E. Cobey 

DATE 11/22 /11 11/29/11 11/25/11 11 /29/11 12/02/11 

OFFICE FSME OGC NMSS NRR NSIR 

NAME CCarpenter 

/RA/ B.McDermott 

NStAmour 

NLO 

CHaney 

DDorman for 

ELeeds /RA/ 

for B. Boger 

MDapas 

DATE 12/06/11 02/08/12 12/9/11 01/23/12 02/10/12 

OFFICE EDO 

NAME RW Borchardt 

(MVirgilio for) 

 

DATE 2/17/12 

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