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[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

------------------------------------------------------------------------
                                                   ADAMS accession No./
                    Document                          weblink/Federal
                                                     Register citation
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

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]
BILLING CODE 7590-01-P
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