POLICY ISSUE 

NOTATION VOTE 

 

July 8, 2008 SECY-08-0050A

FOR: The Commissioners 

FROM: Stephen G. Burns 

 Acting General Counsel 

 R.W. Borchardt 

 Executive Director for Operations 

 

SUBJECT: FIREARMS GUIDELINES IMPLEMENTING SECTION 161A. OF THE 

ATOMIC ENERGY ACT OF 1954 AND ASSOCIATED POLICY ISSUES 

— SUPPLEMENTAL INFORMATION 

PURPOSE: 

To obtain the Commission’s approval of proposed actions necessitated by changes in the final 

version of the firearms guidelines implementing section 161A. of the Atomic Energy Act of 1954 

(AEA). 

SUMMARY:

This paper supplements the information provided to the Commission in SECY-08-0050, dated 

April 17, 2008. This paper replaces Enclosure 1 of SECY-08-0050 with the enclosed firearms 

guidelines and provides new recommendations on the issuance of a revised proposed rule. 

This paper also recommends against the issuance of orders to implement the firearms 

background checks. 

 

BACKGROUND:

AEA section 161A. empowers the Commission to authorize security personnel of any NRC 

licensee or certificate holder to transfer, receive, possess, transport, import, and use firearms, 

ammunition, or devices listed in the section, if certain determinations are made by the 

CONTACTS: Philip Brochman, NSIR/DSP 

 301-415-6557 

 Susan Fonner, OGC 

(301) 415-1629 

SECY NOTE: THIS SECY PAPER, WITHOUT ENCLOSURES, TO BE MADE 

PUBLICLY AVAILABLE AFTER PUBLICATION OF THE FIREARMS GUIDELINES IN 

THE FEDERAL REGISTER. 
The Commissioners - 2 -

Commission. Subsection d. of section 161A. of the Atomic Energy Act (AEA) provides that the 

section takes effect on the date on which guidelines (referred to in this paper as “the guidelines” 

or “the firearms guidelines”) are issued by the Commission, with the approval of the Attorney 

General (AG). In SECY-08-0050 the staff provided the Commission with such guidelines for its 

review and approval. These guidelines were developed by Nuclear Regulatory Commission 

staff working in coordination with Department of Justice (DOJ). SECY-08-0050 included, 

among other things, a draft Federal Register Notice of issuance of the guidelines, along with the 

text of the guidelines that had been agreed to by NRC staff and DOJ staff. 

DISCUSSION: 

In May of this year, following submission of SECY-08-0050 to the Commission, DOJ made a 

significant change in its interpretation of subsection c. of section 161A. Subsection c. provides 

the following: 

“A person that receives, possesses, transports, imports, or uses a weapon, ammunition, 

or a device under subsection [b.] shall be subject to a background check by the Attorney 

General, based on fingerprints and including a background check under section 103(b) 

of the Brady Handgun Violence Prevention Act (citation omitted) to determine whether 

the person is prohibited from possessing or receiving a firearm under Federal or State 

law.” 1

Section 103(b) of the Brady Handgun Violence Prevention Act required the Attorney General to 

establish the national instant criminal background check system (NICS), which conveys 

information by telephone or other electronic means, on whether receipt of a firearm by a 

prospective transferee would violate 18 U.S.C. 922 or State law. 18 U.S.C. 922(g) contains a 

list of persons for whom it is unlawful to possess in or affecting commerce, or to receive, any 

firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 

The list of persons includes, among others, any person who has been convicted of a felony, is 

an unlawful user of or addicted to any controlled substance, is an illegal alien, has received a 

dishonorable discharge from the U.S. Armed Forces, or has been convicted of a misdemeanor 

crime of domestic violence. 

Initially, DOJ staff interpreted section 161A.c. as only requiring NICS checks of security 

personnel of licensees and certificate holders that had applied for enhanced weapon or 

preemption authority. However, in May of this year, DOJ determined that section 161A.c. 

requires NICS checks of all Commission-designated licensees’ and certificate holders’ security 

personnel who have access to any weapon in carrying out their official duties. This 

interpretation requires a considerable increase in the number of individuals who will be required 

to have a NICS check under section 161A. Commissioners’ Assistants were made aware of the 

 

1

 Subsection 161A.b. of the Atomic Energy Act covers handguns, rifles, shotguns, short-barreled 

shotguns, short-barreled rifles, machineguns, semiautomatic assault weapons, ammunition for any such 

gun or weapon, and large capacity ammunition feeding devices. 
The Commissioners - 3 -

change in DOJ interpretation at a meeting with OGC representatives that was held after OGC 

was informed of the change by DOJ. This change in interpretation requires a change in the 

firearms guidelines and in the regulations implementing the guidelines. The revised guidelines 

are enclosed with this paper (Enclosure 1). A comparative text is also enclosed, highlighting the 

recent changes (Enclosure 2). 

Staff estimates that approximately 8000 security personnel would undergo NICS checks once 

the requirement becomes effective, with each check costing the industry $35, totaling $280,000. 

These checks will be required to be repeated every three years thereafter, meaning the industry 

will continue to incur costs of approximately $94,000 per year. 

In SECY-08-0050, the staff proposed that upon issuance of the guidelines, staff would issue a 

direct final rule and accompanying proposed rule that would implement the guidelines. With 

these additional changes, the likelihood of receiving adverse public comments has increased 

and we now recommend that the Commission issue a revised proposed rule affording members 

of the public 45 days to comment on the changes that have been made to the proposed rule 

that the Commission had published in October 2006 for public comment. 

Under section 161A.of the AEA, the NICS check requirement takes effect for classes of 

facilities, radioactive material, and other property only after the NRC designates that class to be 

covered by the provisions of section 161A. The revised proposed rule would require NICS 

checks only for security personnel at power reactor facilities and Category I strategic special 

nuclear material (SSNM) facilities as these are the only licensed facilities covered by the initial 

proposed rule issued in October 2006 for public comment. These checks would commence 

only after a final rule is promulgated. The NICS check requirement for security personnel at 

other classes of licensees or certificate holders would be addressed in the separate rulemaking 

discussed in SECY-08-0050 that would commence in FY 2010 or later. 

To expedite issuance of the revised proposed rule, the NRC staff recommends that the EDO be 

given the authority to issue the revised proposed rule without further Commission review. The 

information contained in SECY-08-0050 and this paper provides the Commission with a 

description of the substance of the proposed rule. The changes to the NICS check 

requirements in the revised proposed rule will be consistent with the enclosed firearms 

guidelines. The staff would require periodic NICS checks every three years to be consistent 

with the recently revised criminal history records checks provisions for security personnel in 

10 CFR 73.56. The staff would provide a final rule to the Commission for its review and 

approval after the staff evaluated and addressed public comments. 

Staff has considered whether, after the guidelines have been published, the NRC should issue 

orders to licensees requiring them immediately to commence NICS checks for security 

personnel prior to publication of a final rule. For the reasons below, the staff is not 

recommending this approach. 

As indicated above, 18 U.S.C. 922(g) contains a list of persons for whom it is unlawful to 

possess in or affecting commerce, or to receive, any firearm or ammunition which has been 

shipped or transported in interstate or foreign commerce. In addition, under 18 U.S.C. 922(d), 

any person, including a licensee or certificate holder, is prohibited from selling or disposing of 

any firearm or ammunition to any person who they know or have reasonable cause to believe to 

be under such a disability. Consequently, the firearms background checks will only inform a 
The Commissioners - 4 -

licensee or certificate holder whether an individual is disqualified from possessing firearms and 

ammunition under Federal (or State) law; they will not establish a new disqualification standard 

for access to weapons. 

Additionally, the staff recently issued a generic communication to industry on this subject (see 

RIS-2008-10, “Notice Regarding Forthcoming Federal Firearms Background Checks,” dated 

May 13, 2008). The RIS provided advance planning information to licensees, certificate 

holders, and their security officers on the forthcoming firearms background checks, described 

how security officers can determine whether the FBI’s NICS databases contain any incorrect 

information indicating they are prohibited from possessing firearms or ammunition, and 

reminded licensees and certificate holders of their current obligation under 18 U.S.C. 922(d) not 

to issue any firearms or ammunition to security officers they know or have a reason to believe 

are prohibited from possessing firearms or ammunition. 

Under these circumstances, the issuance of immediately effective orders requiring power 

reactor licensees and Category I SSNM licensees to institute firearms background checks lacks 

the degree of urgency and necessity associated with the NRC’s previous issuance of security 

orders. In fact, it is the staff’s judgment that the issuance of orders mandating firearms 

background checks for designated classes of facilities prior to the promulgation of a final rule 

would not significantly increase the defensive capabilities of such licensees. The staff took into 

consideration the fact that a broad range of stakeholders, including both industry and a public 

interest organization, have strongly indicated to the NRC that rulemaking should be used to 

implement further security measures, absent a compelling need. Given the nature of the 

firearms background checks for armed security officers at these facilities, and the presence of 

other existing NRC background investigation programs, the staff does not consider that a 

compelling need exists for issuance of such orders. 

The staff further notes that the development of the orders, additional security measures (ASMs), 

and associated guidance documents, and obtaining stakeholder input on the proposed ASMs 

would divert resources from the development of the revised proposed rule. Consequently, the 

development of these orders, ASMs, and any associated tasks would likely delay the issuance 

of a final rule on the subject. Additionally, Office of Management and Budget (OMB) approval of 

the new NRC Form 754 is required before security officers can be required to submit these 

forms to the NRC to accomplish any firearms background checks mandated under either 

regulations or orders. In a recent conversation with a representative of the Office of the General 

Counsel, OMB stated that it preferred to review the form as part of its review of a draft final rule. 

However, OGC was told that if the Commission provided a detailed justification for separating 

the OMB review of the form from its review of the final rule, OMB would consider an early review 

of the form.2

 

 

2

 OMB reviewed the proposed NRC Form 754 as part of its review of the proposed rule issued for 

public comment in October of 2006. It gave the NRC staff comments on the form, but did not give it a 

Paperwork Reduction Act clearance. OMB desires to review the final rule before giving us the clearance, 

giving it the opportunity to evaluate how the NRC addressed public comments on the information 

collection provisions. 
The Commissioners - 5 -

Lastly, the staff believes that the NRC’s use of rulemaking processes to impose the NICS check 

requirement, given the opportunity for public comment in rulemaking, provides greater 

transparency regarding the agency’s actions and is consistent with the Commission’s current 

approach to implementing new security requirements. 

COMMITMENTS: 

The staff identified commitments in SECY 08-0050, which we have modified below. No further 

commitments are required. 

1. The General Counsel will forward the firearms guidelines to the AG upon the 

 Commission’s direction. 

2. Publish the firearms guidelines in the Federal Register following the AG’s approval. 

3. Develop a revised proposed rule, which will be followed by a final rule after the 

 comment period for the revised proposed rule has expired. 

4. Provide a draft final rule to the Commission for its approval. 

5. Issue draft regulatory guidance on the firearms guidelines (DG 5020) and regulatory 

 guidance on event notifications (DG 5019) following publication of the proposed rule. 

6. Develop an MOU with the FBI and an MOU with ATF to support implementation of the 

 firearms guidelines. 

7. Conduct a technical workshop, with support from FBI, ATF, and USACE, for 

stakeholders on the implementation of the firearms guidelines. 

8. Develop a separate rulemaking designating additional classes of facilities and 

 radioactive material for application of section 161A. authority. 

9. Provide the proposed rule designating additional classes of licensees that could take 

 advantage of section 161A. authorities to the Commission on a schedule developed in 

 the staff’s rulemaking common prioritization list. No rulemaking plan would be 

 provided. 

RESOURCES: 

No changes have been made to the resources identified in SECY-08-0050. 

RECOMMENDATIONS: 

That the Commission: 

1. Approve issuing the firearms guidelines and notice in the enclosure to this paper after 

obtaining the AG’s approval, and publishing them in the Federal Register. 

2. Delegate to the EDO the authority to publish the revised proposed rule. The rule will be 

signed by the EDO and provide for a 45-day comment period. The final rule would be 

submitted to the Commission for its approval. 

3. Authorize the staff to develop a separate rulemaking expanding section 161A. authority 

to the additional classes of facilities and radioactive material specified in Enclosure 3 of 

SECY-08-0050. 

4. Approve sending the letters to Governors that are in Enclosure 5 to SECY-08-0050 prior 

to the publication of the approved firearms guidelines in the Federal Register. 
The Commissioners - 6 -

5. Approve SECY publicly releasing SECY-O8-0050, except for Enclosures 1 and 5, and 

 all of this paper except for the Enclosures following publication of the approved firearms 

 guidelines in the Federal Register. At that time, the final Guidelines would have been 

 published and there is no compelling justification for disclosing the draft guidelines. 

 Also, the Commission does not routinely release drafts of letters to Governors. The 

 signed letters to Governors will have been public at that time. 

 

COORDINATION:

No review of the Office of the Chief Financial Officer was required since no changes were made 

to the resources identified in SECY-08-0050. 

 /RA/ 

 Stephen G. Burns 

 Acting General Counsel 

 /RA/ 

 R. W. Borchardt 

 Executive Director for Operations 

Enclosures: 1. Revised Federal Register Notice and 

 Firearms Guidelines 

 2. Comparison of Revised Guidelines with those Contained in SECY-08-0050 
The Commissioners - 7 -

RECOMMENDATIONS: 

That the Commission: 

1. Approve issuing the firearms guidelines and notice in the enclosure to this paper after 

obtaining the AG’s approval, and publishing them in the Federal Register. 

2. Delegate to the EDO the authority to publish the revised proposed rule. The rule will be 

signed by the EDO and provide for a 45-day comment period. The final rule would be 

submitted to the Commission for its approval. 

3. Authorize the staff to develop a separate rulemaking expanding section 161A. authority 

to the additional classes of facilities and radioactive material specified in Enclosure 3 of 

SECY-08-0050. 

4. Approve sending the letters to Governors that are in Enclosure 5 to SECY-08-0050 prior 

to the publication of the approved firearms guidelines in the Federal Register. 

5. Approve SECY publicly releasing SECY-O8-0050, except for Enclosures 1 and 5, and 

 all of this paper except for the Enclosures following publication of the approved firearms 

 guidelines in the Federal Register. At that time, the final Guidelines would have been 

 published and there is no compelling justification for disclosing the draft guidelines. 

 Also, the Commission does not routinely release drafts of letters to Governors. The 

 signed letters to Governors will have been public at that time. 

 

COORDINATION:

No review of the Office of the Chief Financial Officer was required since no changes were made 

to the resources identified in SECY-08-0050. 

 Stephen G. Burns 

 Acting General Counsel 

 R.W. Borchardt 

 Executive Director for Operations 

Enclosures: 1. Revised Federal Register Notice and 

 Firearms Guidelines 

 2. Comparison of Revised Guidelines with those Contained in SECY-08-0050 

G:GC\Supp Commission paper on Firearms (2).doc *see previous concurrence 

OFFICE OGC* OGC* OGC* OGC 

NAME SFonner TRothschild JGray SBurns 

DATE 7 / 8 /2008 7 / 8 /2008 7 / 8 /2008 7 / 8 /2008 

OFFICE EDO 

NAME RWBorchardt 

DATE 7 / 8 /2008 

OFFICIAL RECORD COPY