[Federal Register Volume 70, Number 214 (Monday, November 7, 2005)]
[Proposed Rules]
[Pages 67380-67388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22200]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN 3150-AH60


Design Basis Threat

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations that govern the requirements pertaining to design basis 
threat (DBT). The proposed rule would amend the Commission's 
regulations to, among other things, make generically applicable the 
security requirements previously imposed by the Commission's April 29, 
2003 DBT orders, which applied to existing licensees, and redefine the 
level of security requirements necessary to ensure that the public 
health and safety and common defense and security are adequately 
protected. The proposed rule would revise the DBT requirements for 
radiological sabotage (applied to power reactors and Category I fuel 
cycle facilities), and theft or diversion of NRC-licensed Strategic 
Special Nuclear Material (SSNM) (applied to Category I fuel cycle 
facilities). The NRC has developed draft Regulatory Guides (RGs) that 
provide guidance to licensees concerning the DBT for radiological 
sabotage and theft and diversion. These draft RGs have limited 
distribution because they contain either safeguards or classified 
information. The specific details related to the threat, which contain 
both safeguards information (SGI) and classified information, are 
contained in adversary characteristics documents (ACDs) that are not 
publicly available. These documents include specific details of the 
attributes of the threat consistent with the requirements imposed in 
the April 29, 2003, DBT orders. Additionally, a Petition for Rulemaking 
(PRM-73-12), filed by the Committee to Bridge the Gap, was considered 
as part of this proposed rulemaking; the NRC's disposition of this 
petition is contained in this document.

DATES: Submit comments by January 23, 2006. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to ensure consideration only for comments received 
on or before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number RIN 3150-AH60 in the subject line 
of your comments. Comments on rulemakings submitted in writing or in 
electronic form will be made available for public inspection. Because 
your comments will not be edited to remove any identifying or contact 
information, the NRC cautions you against including any information in 
your submission that you do not want to be publicly disclosed.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: <a href="/cdn-cgi/l/email-protection#336076706a735d41501d545c45"><span class="__cf_email__" data-cfemail="1e4d5b5d475e706c7d30797168">[email protected]</span></a>. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at http://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
<a href="/cdn-cgi/l/email-protection#6b080a0c2b051908450c041d"><span class="__cf_email__" data-cfemail="1b787a7c5b756978357c746d">[email protected]</span></a>. Comments can also be submitted via the Federal eRulemaking 
Portal http://www.regulations.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 am and 4:15 pm Federal workdays. (Telephone (301) 
415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    You may submit comments on the information collections by the 
methods indicated in the Paperwork Reduction Act Statement.
    Publicly available documents related to this rulemaking may be 
viewed electronically on the public computers located at the NRC's 
Public Document Room (PDR), O1 F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor 
will copy documents for a fee. Selected documents, including comments, 
may be viewed and downloaded electronically via the NRC rulemaking Web 
site at http://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this 
site, the public can gain entry into the NRC's Agencywide Document 
Access and

[[Page 67381]]

Management System (ADAMS), which provides text and image files of NRC's 
public documents. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC 
Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-
4737 or by e-mail to <a href="/cdn-cgi/l/email-protection#01716573416f73622f666e77"><span class="__cf_email__" data-cfemail="24544056644a56470a434b52">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Mr. Timothy Reed, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone (301) 415-1462; e-mail: <a href="/cdn-cgi/l/email-protection#770316053719051459101801"><span class="__cf_email__" data-cfemail="2a5e4b586a445849044d455c">[email protected]</span></a> or Mr. 
Richard Rasmussen, Office of Nuclear Security and Incident Response, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; 
telephone (301) 415-8380; e-mail: <a href="/cdn-cgi/l/email-protection#275546556749554409404851"><span class="__cf_email__" data-cfemail="c6b4a7b486a8b4a5e8a1a9b0">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background.
II. Rulemaking Initiation.
III. Proposed Regulations.
IV. Section-by-Section Analysis.
V. Petition for Rulemaking (PRM-73-12).
VI. Guidance.
VII. Criminal Penalties.
VIII. Compatibility of Agreement State Regulations.
IX. Availability of Documents.
X. Plain Language.
XI. Voluntary Consensus Standards.
XII. Finding of No Significant Environmental Impact: Environmental 
Assessment: Availability.
XIII. Paperwork Reduction Act Statement.
XIV. Regulatory Analysis.
XV. Regulatory Flexibility Act Certification.
XVI. Backfit Analysis.

I. Background

    The DBT requirements in 10 CFR 73.1(a) describe general adversary 
characteristics that designated licensees must defend against with high 
assurance. These NRC requirements include protection against 
radiological sabotage (generally applied to power reactors and Category 
I fuel cycle facilities) and theft or diversion of NRC-licensed SSNM 
(generally applied to Category I fuel cycle facilities). The DBTs are 
used by these licensees to form the basis for site-specific defensive 
strategies implemented through security plans, safeguards contingency 
plans, and guard training and qualification plans.
    Following the terrorist attacks on September 11, 2001, the NRC 
conducted a thorough review of security to ensure that nuclear power 
plants and other licensed facilities continued to have effective 
security measures in place for the changing threat environment. In so 
doing, the NRC recognized that some elements of the DBTs required 
enhancement due to the escalation of the domestic threat level. After 
soliciting and receiving comments from Federal, State, local agencies, 
and industry stakeholders, the NRC imposed by order supplemental DBT 
requirements that contained additional detailed adversary 
characteristics. The Commission deliberated on the responsibilities of 
the local, State, and Federal governments to protect the nation, and 
the responsibility of the licensees to protect individual nuclear 
facilities, before reaching consensus on a reasonable approach to 
security in the April 29, 2003 DBT orders. After gaining experience 
under these orders over the past two years, the Commission believes 
that the attributes of the orders should be generically imposed on 
certain classes of licensees.
    The Commission's decision was based on the analysis of intelligence 
information regarding the trends and capabilities of the potential 
adversaries and discussions with Federal, law enforcement, and 
intelligence community agencies. These enhanced adversary 
characteristics are reflective of the new threat environment. In 
general terms, DBTs are comprised of attributes selected from the 
overall threat environment. The ACDs set forth the specific details of 
the attributes of the DBTs. The DBT technical basis document contains a 
basis for the specific adversary characteristics. These supplemental 
documents contain safeguards and classified information that is 
distributed only to persons with authorized access and on a need-to-
know basis. The NRC's DBT takes into consideration actual demonstrated 
adversary characteristics as well as pertinent intelligence information 
applicable to domestic threats and a determination as to those 
characteristics against which a private security force could reasonably 
be expected to provide protection.
    The April 29, 2003 DBT orders required nuclear power reactors and 
Category I fuel cycle licensees to revise their physical security 
plans, security personnel training and qualification plans, and 
safeguards contingency plans to defend against the supplemental DBT 
requirements. The orders required licensees to make security 
enhancements such as increased patrols; augmented security forces and 
capabilities; additional security posts; additional physical barriers; 
vehicle checks at greater standoff distances; better coordination with 
law enforcement and military authorities; augmented security and 
emergency response training, equipment, and communication; and more 
restrictive site access controls for personnel, including expanded, 
expedited, and more thorough initial and follow-on screening of 
temporary and permanent workers. The NRC has reviewed and approved the 
revised security plans that were developed and submitted by power 
reactor and Category I fuel facility licensees in response to the April 
29, 2003 orders.

II. Rulemaking Initiation

    On July 19, 2004, the staff issued a memorandum entitled ``Status 
of Security-Related Rulemaking'' to inform the Commission of plans to 
close two longstanding security-related actions and replace them with a 
comprehensive rulemaking plan to modify physical protection 
requirements for power reactors. This memorandum described rulemaking 
efforts that were preempted by the terrorist activities of September 
11, 2001, and summarized the security-related actions taken following 
the attack. In response to this memorandum, the Commission directed the 
staff in an August 23, 2004, Staff Requirements Memorandum (SRM), to 
forego the development of a rulemaking plan and provide a schedule for 
the completion of 10 CFR 73.1, 73.55, and Part 73 Appendix B 
rulemakings. The requested schedule was provided to the Commission by 
memorandum dated November 16, 2004.

III. Proposed Regulations

    The principal objectives of the proposed rule are, among other 
things, to make generically applicable the security requirements 
previously imposed by the Commission's April 29, 2003 DBT orders, and 
to define in NRC regulations the level of security necessary to ensure 
adequate protection of the public health and safety and common defense 
and security.
    The Commission continues to consider many factors in developing the 
proposed DBT and other security requirements. As directed by Congress 
under section 651(a) of the recently enacted Energy Policy Act of 2005, 
the NRC is giving consideration to the following 12 factors as part of 
this rulemaking to revise the design basis threats:
    1. The events of September 11, 2001;
    2. An assessment of physical, cyber, biochemical, and other 
terrorist threats;
    3. The potential for attack on facilities by multiple coordinated 
teams of a large number of individuals;
    4. The potential for assistance in an attack from several persons 
employed at the facility;
    5. The potential for suicide attacks;
    6. The potential for water-based and air-based threats;

[[Page 67382]]

    7. The potential use of explosive devices of considerable size and 
other modern weaponry;
    8. The potential for attacks by persons with a sophisticated 
knowledge of facility operations;
    9. The potential for fires, especially fires of long duration;
    10. The potential for attacks on spent fuel shipments by multiple 
coordinated teams of a large number of individuals; \1\
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    \1\ Transportation of spent nuclear fuel is subject to separate 
regulatory requirements and public comments will be considered.
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    11. The adequacy of planning to protect the public health and 
safety at and around nuclear facilities, as appropriate, in the event 
of a terrorist attack against a nuclear facility; and
    12. The potential for theft and diversion of nuclear material from 
such facilities.
    A number of these factors are already reflected in the text of the 
proposed rule. For example, the proposed rule would require protection 
against suicidal attackers, insiders, and waterborne threats. Some of 
these factors are not included in the proposed rule. For example, there 
is no provision in the proposed DBT rule for an attribute of air-based 
threats. The Commission invites and looks forward to public comment on 
the proposed rule provisions, as well as whether or how the 12 factors 
should be addressed in the DBT rule. The Commission will further 
consider and resolve any comments received in the final rule.
    The proposed rule would also revise certain exemptions for 
independent spent fuel storage installations (ISFSIs). The current DBT 
rule exempts ISFSIs from the land vehicle transport and land vehicle 
bomb threats contained in Sec. Sec.  73.1(a)(1)(i)(E) and (a)(1)(iii), 
respectively. These exemptions should no longer be retained because the 
Commission issued orders to ISFSIs on October 16, 2002, requiring 
ISFSIs to protect against these threats. The NRC evaluated the need to 
apply waterborne requirements to ISFSIs and concluded that other means 
in the proposed rule were sufficiently protective to preclude the need 
for specific requirements regarding waterborne threats. Consequently, 
an exemption from the waterborne threat has been added for ISFSIs in 
this proposed rule.
    The proposed rule would also amend the exemption in the current 
Sec.  73.1(a) for licensees subject to the provisions of Sec.  73.20. 
The current rule exempts these licensees from the requirements to 
protect against vehicles transporting adversary personnel and equipment 
and the land vehicle bomb. The Commission has determined, however, that 
due to the current threat environment certain licensees subject to 
Sec.  73.20 (Category I fuel cycle facilities) need to protect against 
such threats, so the exemption must be amended accordingly. The amended 
exemption would continue for other licensees described in 10 CFR 73.20 
(e.g., fuel reprocessing plants licensed under Part 50).
    The approach proposed in this rulemaking maintains a level of 
detail in the Sec.  73.1(a) rule language that is generally comparable 
to the current regulation, while updating the general DBT attributes in 
a manner consistent with the insights gained from the application of 
supplemental security requirements imposed by the April 29, 2003, DBT 
orders. The result is a proposed rule with a level of detail that 
reflects all major features of the DBTs, yet avoids compromising 
licensee security by not publishing the specific tactical and 
operational capabilities of the DBT adversaries. The goal of this 
approach is to provide sufficient public notice of the upgrades to the 
DBTs, including the new modes of attack that facilities must be 
prepared to defend against, so that meaningful public input is possible 
regarding the proposed rule's scope and content.
    The NRC recognizes that some stakeholders may expect more detail 
than is set forth in the current or proposed DBT regulations. However, 
the more detail that is made publicly available about the specific 
capabilities of the DBT adversaries, the greater the chance that 
potential adversaries could exploit that information. The disclosure of 
such details as the specific weapons, force size, ammunition, vehicles, 
and bomb sizes that licensees must be prepared to defend against could 
substantially assist an adversary in planning an attack.
    On the other hand, it is important for the public to be informed of 
the types of attacks against which nuclear power plants and Category I 
fuel cycle facilities are required to defend. The public has a vital 
stake in the security of these facilities, as well as the right to 
meaningful comment when NRC proposes to amend its regulations. 
Understanding the general scope of the proposed DBT rule is necessary 
if the public is to exercise its right to meaningful comment and 
oversight of NRC regulations.
    After carefully balancing these competing interests, the NRC 
arrived at the level of detail regarding the attributes of the DBT 
presented in the proposed rule. More specific details (e.g., specific 
weapons, ammunition, etc.) are consolidated in ACDs, which contain 
classified or safeguards information. The technical bases for the ACDs 
are derived largely from intelligence information, and also contain 
classified and safeguards information that cannot be publicly 
disclosed. These documents must be withheld from public disclosure and 
made available only on a need-to-know basis to those who otherwise 
qualify for access.
    The ACDs may be updated from time to time as a result of the NRC's 
periodic threat reviews, which NRC has been conducting since 1979. 
Those threat assessments are performed in conjunction with the 
intelligence and law enforcement communities to identify changes in the 
threat environment which may in turn require adjustment of NRC security 
requirements. Future revisions to the ACDs would not require changes to 
the DBT regulations in Sec.  73.1, provided the changes remain within 
the scope of the rule text.
    The NRC consulted with Federal, State, and local agencies, and with 
industry stakeholders in developing the updated DBTs. This consultation 
involved analysis of intelligence information regarding the trends and 
capabilities of potential adversaries, and discussion with Federal, law 
enforcement, and intelligence community agencies. Public comments and 
suggestions received in response to PRM-73-12, also informed the NRC's 
development of this proposed rule. The resolution of PRM-73-12, which 
is being granted in part through this rulemaking, is more fully 
discussed in Section V of this notice.
    The Commission concludes that the proposed amendments to Sec.  73.1 
will continue to ensure adequate protection of public health and safety 
and the common defense and security by requiring the secure use and 
management of radioactive materials. The revised DBTs represent the 
largest threats against which private sector facilities must be able to 
defend with high assurance. The proposed amendments to Sec.  73.1 
reflect requirements currently in place under existing NRC regulations 
and orders.

[[Page 67383]]

IV. Section-by-Section Analysis

    The following table provides a comparison between the proposed rule 
text and the current rule text.

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                 Old                                   New                                 Change
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(a) Purpose. This part prescribes     (a) Purpose. This part prescribes     The proposed paragraph is modified
 requirements for the establishment    requirements for the establishment    to clarify that the DBTs are
 and maintenance of a physical         and maintenance of a physical         designed to protect against
 protection system which will have     protection system which will have     diversion in addition to theft of
 capabilities for the protection of    capabilities for the protection of    special nuclear material.
 special nuclear material at fixed     special nuclear material at fixed    The proposed exemptions would be
 sites and in transit and of plants    sites and in transit and of plants    updated based on the order
 in which special nuclear materials    in which special nuclear material     requirements and conforming changes
 used. The following design basis      is used. The following design basis   to other paragraphs of this part.
 threats, where referenced in          threats, where referenced in
 ensuing sections of this part,        ensuing sections of this part,
 shall be used to design safeguards    shall be used to design safeguards
 systems to protect against acts of    systems to protect against acts of
 radiological sabotage and to          radiological sabotage and to
 prevent the theft of special          prevent the theft or diversion of
 nuclear material. Licensees subject   special nuclear material. Licensees
 to the provision of Sec.   72.182,    subject to the provisions of Sec.
 Sec.   72.212, Sec.   72.20, Sec.     73.20 (except for fuel cycle
 73.50, and Sec.   73.60 are exempt    licensees authorized under part 70
 from Sec.   73.1(a)(1)(i)(E) and      of this chapter to received,
 Sec.   73.1(a)(1)(iii).               acquire, possess, transfer, use, or
                                       deliver for transportation formula
                                       quantities of strategic special
                                       nuclear material), Sec.   73.50,
                                       and Sec.   73.60 are exempt from
                                       Sec.   73.1(a)(1)(i)(E), Sec.
                                       73.1(a)(1)(iii), Sec.
                                       73.1(a)(1)(iv), Sec.
                                       73.1(a)(2)(iii) and Sec.
                                       73.1(a)(2)(iv). Licensees subject
                                       to the provisions of Sec.   72.212,
                                       are exempt from Sec.
                                       73.1(a)(1)(iv).
(1) Radiological sabotage. (i) A      (1) Radioloigcal sabotage. (i) A      The proposed paragraph adds new
 determined violent external           determined violence external          capabilities to the DBT including
 assault, attack by stealth, or        assault, attack by stealth, or        operation as one or more teams and
 deceptive actions, of several         deceptive actions, including          attack from multiple entry points.
 persons with the following            diversionary actions, by an
 attributes, assistance and            adversary force capable of
 equipment:                            operating as one or more teams,
                                       attacking from one or more entry
                                       points, with the following
                                       attributes, assistance and
                                       equipment:
(1)(i)(A) Well-trained (including     (1)(i)(A) Well-trained (including     The proposed paragraph would add to
 military training and skills) and     military training and skills) and     the DBT adversaries who are willing
 dedicated individuals,                dedicated individuals, willing to     to kill or be killed and are
                                       kill or be killed, with sufficient    knowledgeable about specific target
                                       knowledge to identify specific        selection.
                                       equipment or locations necessary
                                       for a successful attack,
(1)(i)(B) inside assistance which     (1)(i)(B) active (e.g., facilitate
 may include a knowledgeable           entrance and exit, disable alarms
 individual who attempts to            and communications, participate in
 participate in a passive role         violent attack) or passive (e.g.,
 (e.g., provide information), an       provide information), or both,
 active role (e.g., facilitate         knowledgeable inside assistance.
 entrance and exit, disable alarms     The reference to an individual
 and communications, participate in    would be removed and the paragraph
 violent attack), or both,             reworded to provide flexibility in
                                       defining the scope of the inside
                                       threat.
(1)(i)(C) suitable weapons, up to     (1)(i)(C) suitable weapons,           The phrase ``up to and including''
 and including hand-held automatic     including hand-held automatic         was changed to ``including'' to
 weapons, equipped with silencers      weapons, equipped with silencers      provide flexibility in defining the
 and having effective long range       and having effective long range       range of weapons licensees must be
 accuracy,                             accuracy,                             able to defend against.
(1)(i)(D) hand-carried equipment,     (1)(i)(D) hand-carried equipment,     This description is not revised by
 including incapacitating agents and   including incapacitating agents and   the proposed rule.
 explosives for use as tools of        explosives for use as tools of
 entry or for otherwise destroying     entry or for otherwise destroying
 reactor, facility, transporter, or    reactor, facility, transporter, or
 container integrity or features of    container integrity or features of
 the safeguards systems, and           the safeguards systems, and
(1)(i)(E) a four-wheel drive land     (1)(i)(E) land and water vehicles,    The scope of vehicles licensees must
 vehicle used for transporting         which could be used for               defend against would be expanded to
 personnel and their hand-carried      transporting personnel and their      include water vehicles and a range
 equipment to the proximity of vital   hand-carried equipment to the         of land vehicles beyond four-wheel
 areas, and                            proximity of vital areas, and         drive vehicles.
(1)(ii) An internal threat of an      (1)(ii) An internal threat, and       The current rule describes the
 insider, including an employee (in                                          internal threat as a threat posed
 any position), and                                                          by an individual. The language
                                                                             would be revised to provide
                                                                             flexibility in defining the scope
                                                                             of the internal threat without
                                                                             adding details that may be useful
                                                                             to an adversary.

[[Page 67384]]

 
(1)(iii) A four-wheel drive land      (1)(iii) A land vehicle bomb          The proposed paragraph would be
 vehicle bomb.                         assault, which may be coordinated     updated to reflect that licensees
                                       with an external assault, and         are required to protect against a
                                                                             wide range of land vehicles. A new
                                                                             mode of attack not previously part
                                                                             of the DBT would be added
                                                                             indicating that adversaries may
                                                                             coordinate a vehicle bomb assault
                                                                             with another external assault.
None                                  (1)(iv) A waterborne vehicle bomb     The proposed paragraph would add a
                                       assault, which may be coordinated     new mode of attack not previously
                                       with an external assault.             part of the DBT, that being a
                                                                             waterborne vehicle bomb assault.
                                                                             This paragraph also adds a
                                                                             coordinated attack concept.
(2) Theft or diversion of formula     (2) Theft or diversion of formula     The proposed paragraph would add new
 quantities of strategic special       quantities of strategic special       adversary capabilities to the DBT
 nuclear material. (i) A determined,   nuclear material. (i) A determined    including operation as one or more
 violent, external assault, attack     violent external assault, attack by   teams and attack from multiple
 by stealth, or deceptive actions by   stealth, or deceptive actions,        entry points.
 a small group with the following      including diversionary actions, by
 attributes, assistance, and           an adversary force capable of
 equipment:                            operating as one or more teams,
                                       attacking from one or more entry
                                       points, with the following
                                       attributes, assistance and
                                       equipment:
(2)(i)(A) Well-trained (including     (2)(i)(A) Well-trained (including     The proposed paragraph would add to
 military training and skills) and     military training and skills) and     the DBT adversaries who are willing
 dedicated individuals;                dedicated individuals, willing to     to kill or be killed and are
                                       kill or be killed, with sufficient    knowledgeable about specific target
                                       knowledge to identify specific        selection.
                                       equipment or locations necessary
                                       for a successful attack;
(2)(i)(B) Inside assistance that may  (2)(i)(B) Active (e.g., facilitate    The reference to an individual would
 include a knowledgeable individual    entrance and exit, disable alarms     be removed and the paragraph
 who attempts to participate in a      and communications, participate in    reworded to provide flexibility in
 passive role (e.g., provide           violent attack) or passive (e.g.,     defining the scope of the inside
 information), an active role (e.g.,   provide information), or both,        threat.
 facilitate entrance and exit,         knowledgeable inside assistance,
 disable alarms and communications,
 participate in violent attack), or
 both;
(2)(i)(C) Suitable weapons, up to     (2)(i)(C) Suitable weapons,           The phrase ``up to and including''
 and including hand-held automatic     including hand-held automatic         was changed to ``including'' to
 weapons, equipped with silencers      weapons, equipped with silencers      provide flexibility in defining the
 and having effective long-range       and having effective long-range       range of weapons licensees must be
 accuracy;                             accuracy;                             able to defend against.
(2)(i)(D) Hand-carried equipment,     (2)(i)(D) Hand-carried equipment,     This description is not revised by
 including incapacitating agents and   including incapacitating agents and   the proposed rule.
 explosives for use as tools of        explosives for use as tools of
 entry or for otherwise destroying     entry or for otherwise destroying
 reactor, facility, transporter, or    reactor, facility, transporter, or
 container integrity or features of    container integrity or features of
 the safeguards system;                the safeguards system;
(2)(i)(E) Land vehicles used for      (2)(i)(E) Land and water vehicles,    The scope of vehicles licensees must
 transporting personnel and their      which could be used for               defend against would be expanded to
 hand-carried equipment; and           transporting personnel and their      include water vehicles and a range
                                       hand-carried equipment; and           of land vehicles beyond four-wheel
                                                                             drive vehicles.
(2)(i)(F) the ability to operate as   Deleted                               This requirement would be included
 two or more teams.                                                          in Sec.   73.1(a)(2)(i).
(2)(ii) An individual, including an   (2)(ii) An internal threat, and       The current rule describes the
 employee (in any position), and                                             internal threat as a threat posed
(2)(iii) A conspiracy between                                                by an individual. The language
 individuals in any position who may                                         would be revised to provide
 have:                                                                       flexibility in defining the scope
(A) Access to and detailed knowledge                                         of the internal threat without
 of nuclear power plants or the                                              adding details that may be useful
 facilities referred to in Sec.                                              to an adversary.
 73.20(a), or
(B) items that could facilitate
 theft of special nuclear material
 (e.g., small tools, substitute
 material, false documents, etc.),
 or both.
None                                  (2)(iii) A land vehicle bomb          The proposed paragraph would be
                                       assault, which may be coordinated     updated to reflect that licensees
                                       with an external assault, and         are required to protect against a
                                                                             wide range of land vehicles. A new
                                                                             mode of attack not previously part
                                                                             of the DBT would be added
                                                                             indicating that adversaries may
                                                                             coordinate a vehicle bomb assault
                                                                             with another external assault.
None                                  (2)(iv) A waterborne vehicle bomb     The proposed paragraph would add a
                                       assault, which may be coordinated     new mode of attack not previously
                                       with an external assault.             part of the DBT, that being a
                                                                             waterborne vehicle bomb assault.
                                                                             This coordinated attack concept is
                                                                             another upgrade to the current
                                                                             regulation.
----------------------------------------------------------------------------------------------------------------


[[Page 67385]]

    Additional guidance concerning the adversary characteristics is 
located in the corresponding draft regulatory guides (radiological 
sabotage in DG-5017 and theft and diversion in DG-5018). These draft 
RGs contain either safeguards or classified information and are not 
publicly available.

V. Petition for Rulemaking (PRM-73-12)

    As discussed above in this notice, the NRC staff reviewed PRM-73-12 
to determine whether the regulations in Part 73 regarding the DBT 
should be amended in response to requests in PRM-73-12 and public 
comments received on the petition. PRM-73-12 was filed by the Committee 
to Bridge the Gap on July 23, 2004. The petition requests that the NRC 
amend its regulations to revise the DBT regulations (in terms of the 
numbers, teams, capabilities, planning, willingness to die and other 
characteristics of adversaries) to a level that encompasses, with a 
sufficient margin of safety, the terrorist capabilities evidenced by 
the attacks of September 11, 2001. The petition also requests that 
security plans, systems, inspections, and force-on-force exercises be 
revised in accordance with the amended DBT. Finally, the petition 
requests a requirement be added to Part 73 to construct shields against 
air attack (the shields are referred to as ``beamhenge'') which the 
petition asserts would enable nuclear power plants to withstand an air 
attack from a jumbo jet.
    PRM-73-12 was published for public comment in the Federal Register 
on November 8, 2004 (69 FR 64690). The public comment period expired on 
January 24, 2005. There were 845 comments submitted on PRM-73-12, of 
which 528 were form letters. Many of the comments were submitted after 
the comment period expired; however, the staff reviewed and considered 
all of the comments. Comments were received from nine state attorneys 
general, approximately 20 public interest groups, a U.S. Congressman 
from Massachusetts, and six industry groups and licensees. In addition, 
two U.S. Senators and a U.S. Representative (all from New Jersey) 
requested an extension to the comment period. The bulk of the comments 
either supported the petition, requested a stronger DBT, or requested 
that NRC give consideration to the petition. All the comments from 
industry and licensees opposed the petition and indicated that the 
supplemental DBT requirements imposed (by order) to date were adequate.
    Based on a review of PRM-73-12 public comments, the NRC staff 
prepared a summary of those comments in the PRM-73-12 comment summary 
table (ML053040061). The table does not list each individual comment. 
The staff has grouped the comments by topic and provided the NRC's 
response. A review of the table shows that although there were a large 
number of comments, the comments fell into a relatively small number of 
topics.
    The table contains the NRC's responses to the issues raised by 
public comments, but the responses to comments do not include a 
detailed comparison of the differences between the current DBT 
requirements (as imposed by the April 29, 2003 orders) and the requests 
in PRM-73-12. Such a comparison could compromise security. The NRC's 
post-September 11, 2001, review of security requirements encompassed 
all the issues raised by the petitioner, and a number of the 
petitioner's requested changes to the DBT have been incorporated into 
the proposed DBT amendments as discussed below.
    The NRC is partially granting PRM-73-12 by conducting this proposed 
rulemaking to revise the DBT requirements in Sec.  73.1(a). Some of the 
requested changes in PRM-73-12 are reflected in the proposed rule text. 
These changes include the proposed requirements in Sec. Sec.  
73.1(a)(1)(i) and (a)(2)(i) that licensees be required to protect 
against one or more teams of adversaries operating from multiple entry 
points. PRM-73-12 also requested that the DBT regulation make clear 
that adversaries are willing to kill and be killed. This change is 
reflected in proposed Sec. Sec.  73.1(a)(1)(i)(A) and (a)(2)(i)(A). The 
proposed rule would also require licensees to protect against 
waterborne threats, a wider range of land vehicles, and coordinated 
attacks. All of these features of the proposed rule grant requests made 
in PRM-73-12.
    The NRC intends to defer action on the other requests in PRM-73-12, 
specifically those aspects of PRM 73-12 which deal with the defense of 
nuclear power plants against aircraft, and to address those issues as 
part of the final action on this proposed rule.
    Federal and other governmental efforts to protect the nation from 
terrorist attacks by air have increased substantially since September 
11, 2001. Those efforts already include a variety of measures such as 
enhanced airline passenger and baggage screening, strengthened cockpit 
doors, and the federal Air Marshals program. Federal law enforcement 
and intelligence agencies have increased efforts to identify potential 
aircraft-related threats before they can be carried out. Such 
improvements have already been exercised by the Department of Defense 
and the Federal Aviation Administration through responses to airspace 
violations near nuclear power plants that were subsequently determined 
not to be threats. These and other government-wide efforts have 
improved protection against air attacks on all industrial facilities, 
both nuclear and non-nuclear.
    Following the September 11, 2001, attacks in New York, the 
Pentagon, and Pennsylvania, the NRC conducted assessments of the 
potential for and consequences of terrorists targeting a nuclear power 
plant for aircraft attack, the physical effects of such a strike, and 
compounding factors such as meteorology that would affect the impact of 
potential radioactive releases. Furthermore, the NRC required existing 
nuclear power plant licensees to develop and implement strategies to 
mitigate potential consequences in the unlikely event of an attack, 
including an aircraft crash into a nuclear power plant. For new nuclear 
power plants, the opportunity exists to develop designs that provide 
for enhanced protection against potential threats. The NRC staff will 
continue to review intelligence and threat reporting to recommend any 
appropriate modifications to the DBT or NRC requirements to mitigate 
air attacks.
    PRM-73-12 also requests that nuclear power plants be required to 
defend against more than the number of attackers that carried out the 
September 11, 2001 attacks, and identifies specific weapons that 
nuclear power plants should be able to defend against. The Commission 
cannot comment publicly on the precise numbers of attackers or types of 
weapons that nuclear power plants are required to defend against under 
the proposed DBTs and ACDs for reasons stated earlier in this notice. 
However, the Commission has conducted a thorough review of security to 
continue to ensure that nuclear power plants and other licensed 
facilities have effective defensive capabilities and security measures 
in place given the changing threat environment. An important part of 
this review was the consideration of a terrorist attack similar to that 
which occurred on September 11, 2001. However, the DBT is based upon 
review and analysis of actual demonstrated adversary characteristics in 
a range of terrorist attacks, and a determination as to the attacks 
against which a private security force could reasonably be expected to 
defend.

[[Page 67386]]

    In summary, the NRC grants PRM-73-12 in part by conducting this 
proposed rulemaking to revise the DBT requirements in Sec.  73.1(a) to 
reflect certain specific requested changes contained in PRM-73-12 in 
the proposed rule text, and is deferring action on other requests in 
PRM-73-12, specifically those aspects of PRM-73-12 which deal with air-
based attacks.

VI. Guidance

    The NRC staff is preparing new regulatory guides, as listed below, 
to provide detailed guidance on the revised DBT requirements in 
proposed Sec.  73.1. These guides are intended to assist current 
licensees in ensuring that their security plans meet requirements in 
the proposed rule, as well as future license applicants in the 
development of their security programs and plans. The new guidance 
incorporates the insights gained from applying the earlier guidance 
that was used to develop, review, and approve the site security plans 
that licensees put in place in response to the April 2003 orders. As 
such, this regulatory guidance is expected to be consistent with 
revised security measures at current licensees. The publication of the 
regulatory guides is planned to coincide with the publication of the 
final rule. The guides are described below.
    1. Draft Regulatory Guide (DG-5017), ``Guidance for the 
Implementation of the Radiological Sabotage Design-Basis Threat 
(Safeguards).'' This regulatory guide will provide guidance to the 
industry on the radiological sabotage DBT. DG-5017 contains safeguards 
information and, therefore, is being withheld from public disclosure 
and distributed on a need-to-know basis to those who otherwise qualify 
for access.
    2. Draft Regulatory Guide (DG-5018), ``Guidance for the 
Implementation of the Theft and Diversion Design-Basis Threat 
(Classified).'' This regulatory guide will provide guidance to the 
industry on the theft or diversion DBT. DG-5018 contains classified 
information and, therefore, is withheld from public disclosure and 
distributed only on a need to know basis to those who otherwise qualify 
for access.

VII. Criminal Penalties

    For the purposes of Section 223 of the Atomic Energy Act, as 
amended, the Commission is issuing the proposed rule to revise Sec.  
73.1 under one or more sections of 161 of the Atomic Energy Act of 1954 
(AEA). Criminal penalties, as they apply to regulations in Part 73 are 
discussed in Sec.  73.81.

VIII. Compatibility of Agreement State Regulations

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement States Programs,'' approved by the Commission on June 20, 
1997, and published in the Federal Register (62 FR 46517; September 3, 
1997), this rule is classified as compatibility ``NRC.'' Compatibility 
is not required for Category ``NRC'' regulations. The NRC program 
elements in this category are those that relate directly to areas of 
regulation reserved to the NRC by the AEA or the provisions of Title 10 
of the Code of Federal Regulations, and although an Agreement State may 
not adopt program elements reserved to NRC, it may wish to inform its 
licensees of certain requirements via a mechanism that is consistent 
with the particular State's administrative procedure laws, but does not 
confer regulatory authority on the State.

IX. Availability of Documents

    Some documents discussed in this rule are not available to the 
public. The following table indicates which documents are available to 
the public and how they may be obtained.
    Public Document Room (PDR). The NRC Public Document Room is located 
at 11555 Rockville Pike, Rockville, Maryland 20852.
    Rulemaking Web site (Web). The NRC's interactive rulemaking Web 
site is located at http://ruleforum.llnl.gov. These documents may be 
viewed and downloaded electronically via this Web site.
    NRC's Electronic Reading Room (ERR). The NRC's electronic reading 
room is located at http://www.nrc.gov/reading-rm.html.

------------------------------------------------------------------------
          Document                PDR         Web             ERR
------------------------------------------------------------------------
Environmental Assessment....          X           X   ML053040039
Regulatory Analysis.........          X           X   ML053040013
Public Comments on PRM-73-12          X           X   ML053040061
Radiological Sabotage                no          no    no
 Adversary Characteristics
 document.
Theft and Diversion                  no          no    no
 Adversary Characteristics
 document.
Technical Basis Document....         no          no    no
Draft RG DG-5017 on                  no          no    no
 Radiological Sabotage.
Draft RG DG-5018 on Theft or         no          no    no
 Diversion.
Memorandum: Status of                 X           X   ML041180532
 Security-Related Rulemaking.
Commission SRM dated August           X           X   ML042360548
 23, 2004.
Memorandum: Schedule for              X           X   ML043060572
 Part 73 Rulemakings.
Letter to Petitioner........          X           X   ML052920150
Commission SRM dated October          X           X   ML053000448
 27, 2005.
------------------------------------------------------------------------

X. Plain Language

    The Presidential memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing,'' published on June 10, 1998 (63 FR 
31883) directed that the Government's documents be in plain, clear, and 
accessible language. The NRC requests comments on the proposed rule 
specifically with respect to the clarity and effectiveness of the 
language used. Comments should be sent to the NRC as explained in the 
ADDRESSES caption of this notice.

XI. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, Pub. 
L. 104-113, requires that Federal agencies use technical standards that 
are developed or adopted by voluntary consensus standards bodies unless 
using such a standard is inconsistent with applicable law or is 
otherwise impractical. The NRC is not aware of any voluntary consensus 
standard that could be used instead of the proposed Government-unique 
standards. The NRC will consider using a voluntary consensus standard 
if an appropriate standard is identified.

XII. Finding of No Significant Environmental Impact: Environmental 
Assessment: Availability

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
Subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a 
major Federal action significantly affecting the quality

[[Page 67387]]

of the human environment and, therefore, an environmental impact 
statement is not required.
    The determination of this environmental assessment is that there 
will be no significant offsite impact to the public from this action. 
However, the general public should note that the NRC is seeking public 
participation; availability of the environmental assessment is provided 
in Section IX. Comments on any aspect of the environmental assessment 
may be submitted to the NRC as indicated under the ADDRESSES heading.
    The NRC has sent a copy of the environmental assessment and this 
proposed rule to every State Liaison Officer and requested their 
comments on the environmental assessment.

XIII. Paperwork Reduction Act Statement

    This proposed rule does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget, approval number 3150-0002.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

XIV. Regulatory Analysis

    The Commission has prepared a draft regulatory analysis on this 
proposed regulation. The analysis examines the costs and benefits of 
the alternatives considered by the Commission. The Commission requests 
public comment on the draft regulatory analysis. Availability of the 
regulatory analysis is provided in Section IX. Comments on the draft 
analysis may be submitted to the NRC as indicated under the ADDRESSES 
heading.

XV. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), the Commission certifies that this rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This proposed rule affects only the licensing and 
operation of nuclear power plants and Category I fuel cycle facilities. 
The companies that own these plants do not fall within the scope of the 
definition of ``small entities'' set forth in the Regulatory 
Flexibility Act or the size standards established by the NRC (10 CFR 
2.810).

XVI. Backfit Analysis

    The NRC has determined, pursuant to the exception in 10 CFR 
50.109(a)(4)(iii), that a backfit analysis is unnecessary for this 
proposed rule. Section 50.109 states in pertinent part that a backfit 
analysis is not required if the Commission finds and declares with 
appropriate documented evaluation for its finding that a ``regulatory 
action involves defining or redefining what level of protection to the 
public health and safety or common defense and security should be 
regarded as adequate.'' The proposed rule would increase the security 
requirements currently prescribed in NRC regulations, and is necessary 
to protect nuclear facilities against potential terrorists. When the 
Commission imposed security enhancements by order in April 2003, it did 
so in response to an escalated domestic threat level. Since that time, 
the Commission has continued to monitor intelligence reports regarding 
plausible threats from terrorists currently facing the U.S. The 
Commission has also gained experience from implementing the order 
requirements and reviewing revised licensee security plans. The 
Commission has considered all of this information and finds that the 
security requirements previously imposed by DBT orders, which applied 
only to existing licensees, should be made generically applicable. The 
Commission further finds that the proposed rule would redefine the 
security requirements stated in existing NRC regulations, and is 
necessary to ensure that the public health and safety and common 
defense and security are adequately protected in the current, post-
September 11, 2001, environment.

List of Subjects in 10 CFR Part 73

    Criminal penalties, Export, Hazardous materials transportation, 
Import, Nuclear materials, Nuclear power plants and reactors, Reporting 
and recordkeeping requirements, Security measures.
    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to 
adopt the following amendments to 10 CFR Part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

    1. The authority citation for part 73 continues to read as follows:

    Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec. 
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as 
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat. 
2750 (44 U.S.C. 3504 note). Section 73.1 also issued under secs. 
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C, 10155, 
10161). Section 73.37(f) also issued under sec. 301, Pub. L. 96-295, 
94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under 
sec. 606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C. 2169).

    2. In Sec.  73.1, paragraph (a) is revised to read as follows:


Sec.  73.1  Purpose and scope.

    (a) Purpose. This part prescribes requirements for the 
establishment and maintenance of a physical protection system which 
will have capabilities for the protection of special nuclear material 
at fixed sites and in transit and of plants in which special nuclear 
material is used. The following design basis threats, where referenced 
in ensuing sections of this part, shall be used to design safeguards 
systems to protect against acts of radiological sabotage and to prevent 
the theft or diversion of special nuclear material. Licensees subject 
to the provisions of Sec.  73.20 (except for fuel cycle licensees 
authorized under Part 70 of this chapter to receive, acquire, possess, 
transfer, use, or deliver for transportation formula quantities of 
strategic special nuclear material), Sec.  73.50, and Sec.  73.60 are 
exempt from Sec.  73.1(a)(1)(i)(E), Sec.  73.1(a)(1)(iii), Sec.  
73.1(a)(1)(iv), Sec.  73.1(a)(2)(iii), and Sec.  73.1(a)(2)(iv). 
Licensees subject to the provisions of Sec.  72.212 are exempt from 
Sec.  73.1(a)(1)(iv).
    (1) Radiological sabotage. (i) A determined violent external 
assault, attack by stealth, or deceptive actions, including 
diversionary actions, by an adversary force capable of operating as one 
or more teams, attacking from one or more entry points, with the 
following attributes, assistance and equipment:
    (A) Well-trained (including military training and skills) and 
dedicated individuals, willing to kill or be killed, with sufficient 
knowledge to identify specific equipment or locations necessary for a 
successful attack,
    (B) Active (e.g., facilitate entrance and exit, disable alarms and 
communications, participate in violent attack) or passive (e.g., 
provide information), or both, knowledgeable inside assistance,
    (C) Suitable weapons, including hand-held automatic weapons, 
equipped with silencers and having effective long range accuracy,
    (D) Hand-carried equipment, including incapacitating agents and

[[Page 67388]]

explosives for use as tools of entry or for otherwise destroying 
reactor, facility, transporter, or container integrity or features of 
the safeguards system, and
    (E) Land and water vehicles, which could be used for transporting 
personnel and their hand-carried equipment to the proximity of vital 
areas, and
    (ii) An internal threat, and
    (iii) A land vehicle bomb assault, which may be coordinated with an 
external assault, and
    (iv) A waterborne vehicle bomb assault, which may be coordinated 
with an external assault.
    (2) Theft or diversion of formula quantities of strategic special 
nuclear material. (i) A determined violent external assault, attack by 
stealth, or deceptive actions, including diversionary actions, by an 
adversary force capable of operating as one or more teams, attacking 
from one or more entry points, with the following attributes, 
assistance and equipment:
    (A) Well-trained (including military training and skills) and 
dedicated individuals, willing to kill or be killed, with sufficient 
knowledge to identify specific equipment or locations necessary for a 
successful attack;
    (B) Active (e.g., facilitate entrance and exit, disable alarms and 
communications, participate in violent attack) or passive (e.g., 
provide information), or both, knowledgeable inside assistance,
    (C) Suitable weapons, including hand-held automatic weapons, 
equipped with silencers and having effective long-range accuracy;
    (D) Hand-carried equipment, including incapacitating agents and 
explosives for use as tools of entry or for otherwise destroying 
reactor, facility, transporter, or container integrity or features of 
the safe-guards system;
    (E) Land and water vehicles, which could be used for transporting 
personnel and their hand-carried equipment; and
    (ii) An internal threat, and
    (iii) A land vehicle bomb assault, which may be coordinated with an 
external assault, and
    (iv) A waterborne vehicle bomb assault, which may be coordinated 
with an external assault.

    Dated at Rockville, Maryland this 2nd day of November, 2005.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-22200 Filed 11-4-05; 8:45 am]
BILLING CODE 7590-01-P


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