POLICY ISSUE 

NOTATION VOTE 

August 30, 2012 SECY-12-0118

FOR: The Commissioners 

FROM: R. W. Borchardt 

 Executive Director for Operations 

SUBJECT: RESOURCE ESTIMATES AND REQUEST FOR FINAL RULE SCHEDULE 

EXTENSION AND DELEGATION OF SIGNATURE AUTHORITY FOR THE 

ENHANCED WEAPONS RULEMAKING 

PURPOSE: 

This paper informs the Commission of the additional resources needed to complete both the 

Enhanced Weapons, Firearms Background Checks and Security Event Notifications (hereafter 

referred to as enhanced weapons) final rulemaking and the supplemental proposed rule to 

expand the scope of the enhanced weapons rulemaking to include co-located independent 

spent fuel storage installations (ISFSIs). Additionally, the staff requests that the Commission 

approve a schedule extension for the final enhanced weapons rule and a delegation authorizing 

the Executive Director for Operations (EDO) to issue a supplemental proposed rule on 

co-located ISFSIs. 

SUMMARY

This paper responds to two directions from the Commission in Staff Requirements 

Memorandum (SRM)-SECY-12-0027 related to the enhanced weapons rulemaking. First, the 

Commission directed the staff to expand the scope of the enhanced weapons rulemaking to 

include co-located ISFSIs. Accordingly, the staff is preparing the necessary supplemental 

proposed rule. Second, the Commission directed the staff to seek Commission approval for 

additional resources to complete the enhanced weapons rulemaking as promptly as possible. 

The staff estimates an additional 0.9 full-time equivalents (FTE) in fiscal year (FY) 2013 and 0.5 

FTE in FY 2014 are needed to complete the supplemental proposed and draft final rules. 

CONTACT: Margaret E. Stambaugh, NRR/DPR 

 301-415-7069 
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To expedite the rulemaking, the staff requests that the Commission approve delegation to the 

EDO to issue the enhanced weapons supplemental proposed rule. There is past precedent for 

delegating this authority to the EDO under similar circumstances, and it is consistent with the 

policy described in Management Directive (MD) 6.3, “The Rulemaking Process.” The scope of 

the supplemental proposed rule is limited to only co-located ISFSIs, as directed by the 

Commission. In order to allow the public adequate time to comment on the supplemental 

proposed rule and to address the public comments received in the draft final rule, the 

rulemaking schedule will need to be extended to November 2013, should the Commission 

approve the delegation of issuing the supplemental proposed rule to the EDO. Without the 

delegation authority, staff estimates completion of the final rule around March 2014. 

BACKGROUND: 

The U.S. Nuclear Regulatory Commission (NRC) published the proposed rule for the enhanced 

weapons rulemaking in the Federal Register (FR) on February 3, 2011 (76 FR 6200). The 

principal purpose of the proposed rule was to designate power reactor facilities and Category 1 

strategic special nuclear material (Cat. 1) facilities as the classes of facilities eligible to apply for 

preemption authority under Section 161A of the Atomic Energy Act of 1954 (AEA), as amended. 

The proposed rule also stated that other classes of facilities, including co-located ISFSIs, would 

be addressed in a later rulemaking. After the proposed rule was published, several licensees 

submitted letters to the NRC requesting preemption authority under Section 161A of the AEA. 

In SECY-12-0027, “Preemption Authority Pursuant to Section 161A, Use of Firearms by 

Security Personnel, of the Atomic Energy Act of 1954, As Amended,” (Agencywide Documents 

Management System (ADAMS) Accession No. ML113130015), the staff recommended issuing 

confirmatory orders in response to these requests. The Commission disapproved the staff’s 

proposed approach to resolving these requests for preemption authority in SRM-SECY-12-0027 

(ADAMS Accession No. ML12124A377). In addition, the Commission directed the staff to 

expand the scope of the enhanced weapons rulemaking to consider co-located ISFSIs and to 

complete the enhanced weapons rulemaking as promptly as possible. 

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

Section 161A provides new statutory authority to the Commission to authorize the security 

personnel of designated licensees and certificate holders to transfer, receive, possess, 

transport, import, and use certain weapons notwithstanding State, local, and certain Federal 

firearms laws and regulations that prohibit such actions. This is generally referred to as 

preemption authority. This statutory authority also allows the Commission to permit designated 

licensees and certificate holders to obtain weapons not previously permitted to be owned or 

possessed under Commission authority. This is generally referred to as enhanced weapons 

authority. For more information about this statutory authority and the NRC’s implementation of 

this authority through rulemaking, please see the proposed rule. 

DISCUSSION: 

The February 2011 proposed enhanced weapons rule limited the classes of facilities eligible to 

apply for preemption authority to power reactor and Cat. 1 facilities. The Commission has 

directed that the scope of the rule be expanded to consider co-located ISFSIs. To comply with 

the requirements of the Administrative Procedures Act, the public must be provided with notice 

and an opportunity to comment on the expanded scope of the enhanced weapons rulemaking. 
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Therefore, the staff is preparing a supplemental proposed rule expanding the scope of the 

enhanced weapons rulemaking to include co-located ISFSIs as a designated class of facilities 

eligible to apply for preemption authority. The supplemental proposed rule will be published in 

the FR for a limited time. Upon completion of the public comment period, the staff will develop a 

single draft final rule package that addresses the public comments from both the proposed 

enhanced weapons rule and the supplemental proposed rule. The staff will provide the draft 

final enhanced weapons rule package to the Commission for review and approval in accordance 

with the standard final rule process. 

The following provides a discussion of resource estimates and schedule impacts for the 

supplemental proposed rule, the resulting impacts to the final enhanced weapons rulemaking, 

as well as a request that the Commission delegate the authority to issue the supplemental 

proposed rule to the EDO to expedite the completion of that supplemental rulemaking process. 

Resources for the Supplemental Proposed Rule

The staff currently anticipates delivering the supplemental proposed rule package to the EDO by 

early November 2012. The supplemental proposed rule would then be published for a 30-day 

public comment period before the end of the year, if the Commission approves the delegation of 

authority to the EDO to issue the supplemental proposed rule as discussed below. 

The current budget formulation for FY 2013 and FY 2014 does not include a supplemental 

rulemaking phase for the enhanced weapons rulemaking in the Operating Reactors business 

line. As a result, staff will need additional resources to develop the supplemental proposed rule. 

In addition, because of the expansion in scope of the enhanced weapons rulemaking, it is 

necessary to add staff with expertise in ISFSIs to the rulemaking process. The budget request 

for the enhanced weapons rulemaking did not account for this additional staff. 

The staff estimates that the following additional resources will be needed in the Operating 

Reactors business line to complete the supplemental proposed rulemaking: 

Office FY 2013 (FTE) 

NRR 0.1 

NSIR 0.1 

NMSS 0.1 

OGC 0.1 

Total 0.4 

Impact on the Proposed Schedule for the Final Rule 

The proposed final rule schedule is largely driven by the need to coordinate with other Federal 

agencies (i.e., the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives). Each of these agencies generally needs 30 to 45 days to review the 

draft final rule language. The staff will need additional time to address and incorporate any 

comments received from these agencies into the draft final rule package that will be submitted 

for the Commission’s approval. 
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In addition, the supplemental proposed rulemaking will follow a similar process as the proposed 

rule, which can take between nine months and one year to complete. The staff is able to 

achieve some efficiency in the final rule schedule by working on the supplemental rule and the 

final rule simultaneously. However, the staff will need to review and incorporate public 

comments on the expanded scope supplemental proposed rule prior to completing work on the 

final rule. For this reason, and because of the additional coordination needed with other Federal 

agencies mentioned above, the staff has determined that additional resources for the final rule 

phase will not expedite the rulemaking schedule. 

Taking these factors and efficiencies into account, the staff requests that the due date for 

delivery of the comprehensive final rule to the Commission be extended from the current due 

date of May 16, 2012, to November 22, 2013. This extension represents an expedited schedule 

that will allow the staff to develop a supplemental rule package, issue it for public comment, and 

incorporate any new public comments into the final rule package and supporting regulatory 

guidance. If the Commission denies the delegation authority, staff anticipates the final rule will 

not be completed until March 2014. 

Impact on Resources for the Final Rule 

 

The delay in the final rule schedule will make it necessary for staff to work on the final rule 

during FY 2014. Resources for this work were included in the budget request for FY 2014. The 

staff estimates that the following resources will be needed to complete the final rule: 

Office FY13 (FTE) FY14 (FTE) 

NRR 0.2 0.2 

NSIR 0.1 0.1 

NMSS 0.1 0.1 

OGC 0.1 0.1 

Total 0.5 0.5 

As noted previously, following the enhanced weapons rulemaking, the Commission directed the 

staff to conduct a follow-on rulemaking to designate licensees other than power reactors or 

Cat. 1 facilities (SRM-SECY-2008-0590). During budget formulation this year, the staff 

requested resources in FY 2013 and FY 2014 to work on that follow-on rulemaking. Since the 

enhanced weapons rulemaking schedule now extends into FY 2014, work on that follow-on 

rulemaking will begin later than budgeted. Therefore, the resources that were requested for 

FY 2013 and some of the resources requested for FY 2014 to support the follow-on rulemaking 

will be redirected to completing the enhanced weapons rulemaking. Both the resources for the 

supplemental proposed rulemaking and the final enhanced weapons rule will be addressed 

through the planning, budgeting, and performance management (PBPM) process. 

Delegation of Authority to the EDO

The staff recommends that the Commission approve the delegation of authority to issue the 

supplemental proposed rule to the EDO. Delegation of authority to the EDO to issue the 

supplemental proposed rule is consistent with the agency policy in Management Directive (MD) 

6.3, “The Rulemaking Process.” In particular, MD 6.3 states that the EDO is delegated authority 

to issue a rule involving a minor new issue and provides four criteria: 
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1. The issue was previously considered by the Commission in a similar context; 

2. The rule has a limited impact; 

3. The rule does not present important health, safety, environmental, or safeguards or 

security questions; or 

4. The rule requires limited resources to implement. 

Each of the four criteria applies to the enhanced weapons supplemental proposed rule. The 

sole purpose of the supplemental proposed rule for the enhanced weapons rulemaking is to 

implement Commission direction given to the staff in SRM-SECY-12-0027. Therefore, the 

content of the supplemental proposed rule involves an issue that the Commission has already 

considered in the context of the overall enhanced weapons rulemaking. Also, the staff 

anticipates that the supplemental proposed rule will have a limited impact on affected 

stakeholders because there is little, if any, difference between the set of facilities potentially 

affected by the supplemental proposed rule and the set of facilities potentially affected by the 

proposed enhanced weapons rule issued on February 3, 2011. In most, if not all, cases, a colocated ISFSI facility is protected by the same guard force as the associated nuclear power 

plant facility, which was the subject of the February 2011 proposed rule. In addition, because 

the content of the supplemental proposed rule will have a limited impact on affected 

stakeholders, it will require limited resources to implement. The staff has determined that this 

scope expansion, which will result in little, if any, difference from the set of facilities potentially 

affected by the proposed enhanced weapons rule issued on February 3, 2011 does not present 

any new important health, safety, or environmental or safeguards of security questions that 

have not been considered by the Commission. Accordingly, the EDO may be delegated the 

authority to issue the supplemental proposed rule consistent with the direction in MD 6.3. 

There is also past precedent delegating to the EDO issuance of supplemental proposed 

rulemakings. In a similar circumstance, the EDO issued the supplemental proposed rule for the 

Alternate Fracture Toughness Requirements for Protection against Pressurized Thermal Shock 

(PTS) rulemaking (73 FR 46557). The supplemental proposed PTS rule, like the supplemental 

proposed enhanced weapons rule, involved a minor change to the proposed rule, the content of 

which was previously considered by the Commission. For more information about the PTS rule 

delegation, see the memo transmitting the supplemental proposed PTS rule to the EDO 

(ADAMS Accession No. ML081560352). 

Delegation of this authority to the EDO would expedite the supplemental proposed rule process 

and consequently lessen the schedule impact the supplemental proposed rule has on the 

publication of the final enhanced weapons rule. After the supplemental proposed rule is 

published in the FR, the staff will develop a single draft final rule package that addresses the 

public comments from both the proposed rule and the supplemental proposed rule. The staff 

will provide the draft final rule package to the Commission for review and approval in 

accordance with the standard final rule process. 

Cumulative Effects of Regulation 

The staff issued three supporting regulatory guidance documents for public comment along with 

the February 2011 proposed rule. One of those guidance documents was Draft Regulatory 

Guide (DG)-5020, “Applying for Enhanced Weapons Authority, Applying for Preemption 

Authority, and Accomplishing Firearms Background Checks Under 10 CFR Part 73” (ADAMS 
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Accession No. ML100321956). Publishing DG-5020 at that time was in accordance with 

SRM-SECY-11-0032, “Consideration of the Cumulative Effects of Regulation in the Rulemaking 

Process” (ADAMS Accession No. ML112840466), in which the Commission directed the staff to 

publish draft guidance with proposed rules. SRM-SECY-11-0032 also stated that the EDO 

should promptly inform the Commission of any instances, and the associated reasons, in which 

a proposed rule package will be provided to the Commission without having completed the draft 

guidance. Having already issued the draft guide for public comment, the staff recommends not 

re-issuing a revised DG-5020 for additional public comment. The scope of the supplemental 

proposed rule is very limited, and minimal additional supporting regulatory guidance is 

necessary to address the change in scope from the supplemental proposed rule. Instead, the 

staff recommends including language in the supplemental proposed rule pointing to the previous 

issuance of DG-5020 and indicating that the scope of designated facilities in the final regulatory 

guide will be expanded to include co-located ISFSIs. This will give the public the same 

information as issuing a revised draft guidance document, while saving considerable resources 

and minimizing schedule impacts. 

RECOMMENDATIONS: 

The staff recommends that the Commission approve delegation authority to issue the 

supplemental proposed rule for publication in the FR to lessen the impact of the supplemental 

proposed rule on the draft final rule schedule. 

The staff also recommends that the Commission approve extending the schedule for the 

Enhanced Weapons rulemaking to November 15, 2013, so that public comments on the 

supplemental proposed rule can be incorporated into the final rule. 

Lastly, the staff recommends not re-issuing a revised DG-5020 for public comment, and instead 

including the revised guidance language in the supplemental proposed rule Federal Register 

Notice 

RESOURCES: 

The following resources are currently included in the Operating Reactors business line of the 

FY 2013 budget allocation and the FY 2014 budget request: 

Office FY 2013 (FTE) FY 2014 (FTE) 

NRR 0.5 0 

NSIR 0 0 

FSME 0 0 

NMSS 0 0 

OGC 0.1 0 

Total 0.6 0 
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The staff anticipates that the following additional resources will be necessary to complete the 

supplemental proposed and final enhanced weapons rulemaking and will be addressed through 

the PBPM: 

Office FY 2013 (FTE) FY 2014 (FTE) 

NRR 0.3 0.2 

NSIR 0.2 0.1 

NMSS 0.2 0.1 

OGC 0.2 0.1 

Total 0.9 0.5 

COORDINATION: 

The Office of the General Counsel has reviewed this package and has no legal objection. The 

Office of the Chief Financial Officer has indicated that, because resources did not exceed 

1 full-time equivalent in any fiscal year, it did not need to review the paper. 

 

 /RA Michael R. Johnson for/ 

 R. W. Borchardt 

 Executive Director 

 for Operations 
The Commissioners 7

The staff anticipates that the following additional resources will be necessary to complete the 

supplemental proposed and final enhanced weapons rulemaking and will be addressed through 

the PBPM: 

Office FY 2013 (FTE) FY 2014 (FTE) 

NRR 0.3 0.2 

NSIR 0.2 0.1 

NMSS 0.2 0.1 

OGC 0.2 0.1 

Total 0.9 0.5 

COORDINATION: 

The Office of the General Counsel has reviewed this package and has no legal objection. The 

Office of the Chief Financial Officer has indicated that, because resources did not exceed 

1 full-time equivalent in any fiscal year, it did not need to review the paper. 

 

 /RA Michael R. Johnson for/ 

 R. W. Borchardt 

 Executive Director 

 for Operations 

 

WITS 201200100/EDATS: SECY-2012-0417 

ADAMS Accession No: ML12229A177 * via e-mail 

 OFFICIAL RECORD COPY 

OFFICE NRR/DPR/PRMB:PM NRR/DPR/PRIB:BC NRR/DPR QTE NMSS: D* 

NAME MStambaugh SHelton TMcGinty 

(SBahadur for)

JDougherty SMoore 

DATE 6/22/2012 6/26/2012 7/2/2012 7/25/2012 7/10/2012 

OFFICE NSIR: D OGC/GCLR/RFC* NRR: D EDO 

NAME JWiggins 

(MThaggard for) 

BJones 

(NStAmour for) 

ELeeds 

(HNieh for) 

RBorchardt 

(MJohnson for) 

DATE 7/11/2012 7/24/2012 7/30/2012 8/30/2012