[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Proposed Rules]
[Pages 54744-54746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22174]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 50

[Docket No. PRM-50-83; NRC-2007-0012]


David Lochbaum on Behalf of the Project on Government Oversight 
and the Union of Concerned Scientists

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a 
petition for rulemaking submitted by Mr. David Lochbaum on behalf of 
the Project on Government Oversight (POGO) and the Union of Concerned 
Scientists (UCS) on February 23, 2007. The petitioner requested that 
the NRC amend its regulations governing domestic licensing of 
production and utilization facilities to require periodic 
demonstrations by applicable local, State, and Federal entities to 
ensure that nuclear power plants can be adequately protected against 
radiological sabotage by adversaries with capabilities that exceed 
those posed by the design basis threat (DBT).

DATES: The docket for the petition for rulemaking PRM-50-83 is closed 
on September 23, 2008.

ADDRESSES: You can access publicly available documents related to this 
petition for rulemaking using the following methods:
    Federal e-Rulemaking Portal: Further NRC action on the issues 
raised by this petition will be accessible at the Federal e-rulemaking 
portal, http://www.regulations.gov, by searching on rulemaking docket 
ID: NRC-2007-0012. The NRC also tracks all rulemaking actions in the 
``NRC Regulatory Agenda: Semiannual Report (NUREG-0936).''
    NRC's Public Document Room (PDR): The public may examine, and have 
copied for a fee, publicly available documents at the NRC's PDR, Public 
File Area O-1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are any 
problems in accessing the documents located in ADAMS, contact the NRC 
PDR reference staff at 1-800-387-4209 or 301-415-4737, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#4d1d091f633f283e22383f2e280d233f2e632a223b"><span class="__cf_email__" data-cfemail="c3938791edb1a6b0acb6b1a0a683adb1a0eda4acb5">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Harry S. Tovmassian, Office of Nuclear 
Reactor Regulation, NRC, Washington, DC 20555-0001, telephone 301-415-
3092, e-mail <a href="/cdn-cgi/l/email-protection#bbf3dac9c9c295efd4cdd6dac8c8d2dad5fbd5c9d895dcd4cd"><span class="__cf_email__" data-cfemail="1f577e6d6d66314b7069727e6c6c767e715f716d7c31787069">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

The Petition

    On February 23, 2007, the NRC received a petition for rulemaking 
from Mr. David Lochbaum on behalf of POGO and UCS (PRM-50-83). The 
petitioner requested that the NRC amend its regulations in Title 10 of 
the Code of Federal Regulations, Part 50, ``Domestic Licensing of 
Production and Utilization Facilities'' (10 CFR Part 50), to add an 
appendix (or comparable regulation), similar to existing Appendix E to 
10 CFR Part 50, ``Emergency Planning and Preparedness for Production 
and Utilization Facilities,'' which would require periodic 
demonstrations by local, State, and Federal entities to ensure that 
nuclear power plants can be adequately protected against radiological 
sabotage by adversaries with capabilities that exceed those in the DBT. 
In the Federal Register of March 29, 2007 (72 FR 14713), the NRC 
published a notice of receipt of the petition for rulemaking and 
requested public comment.
    In support of the request for this proposed amendment to the NRC's 
regulations, the petitioner cites the recent DBT final rule (72 FR 
12705; March 19, 2007) which states that the DBT rule reflects the 
Commission's determination of the most likely composite set of 
adversary features against which a private security force should 
reasonably be required to defend. The petitioner states that the final 
DBT rule requires plant owners to demonstrate periodically that they 
can meet their responsibilities to adequately protect nuclear power 
plants from sabotage threats up to and including the

[[Page 54745]]

DBT but fails to include provisions requiring periodic demonstrations 
that applicable local, State, and Federal entities can meet their 
responsibilities to adequately protect nuclear power plants from 
sabotage threats by adversaries with capabilities exceeding those of 
the DBT. The petitioner urges the NRC to remedy this shortcoming by 
amending its regulations to require demonstrations similar to those 
required by Appendix E to 10 CFR Part 50, which the petitioner claims 
requires plant owners and external authorities to demonstrate 
periodically their ability to meet their responsibilities during 
nuclear plant emergencies. According to the petitioner, Appendix E to 
10 CFR Part 50 requires biennial exercises at each nuclear plant site 
and evaluation by the Federal Emergency Management Agency (FEMA) of the 
performance of local, State, and Federal entities.

Public Comments

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit their comments. The NRC received 16 
comment letters (1 from the Nuclear Energy Institute (NEI) on behalf of 
the nuclear energy industry, 13 from NRC-licensed power reactor 
operators or their affiliates, and 2 from private citizens). In its 
letter, NEI recommends that the NRC deny the petition. According to 
NEI, the U.S. Department of Homeland Security (DHS), through the 
Homeland Security Presidential Directive-7, ``Critical Infrastructure 
Identification, Prioritization, and Protection,'' is responsible for 
the oversight and coordination of local, State, and Federal entities 
for all terrorist threats including those above the DBT. In addition, 
the commenter states that the NRC has acknowledged in the Statement of 
Considerations for the recent DBT final rule that the NRC and DHS are 
working together to develop and improve emergency preparedness for a 
terrorist attack through Federal initiatives such as comprehensive 
review programs and integrated response planning efforts. For these 
reasons, NEI recommends that the NRC deny this petition. All 13 comment 
letters from the nuclear power reactor industry endorse the NEI 
comments.
    The Commission agrees that oversight and coordination of local, 
State, and Federal entities are under the purview of DHS and that the 
NRC and DHS continue to undertake joint comprehensive review programs 
and integrated response planning efforts. One individual commenter, 
opposing the petition, also questions the NRC's authority to require 
participation in demonstrations by local, State, and Federal entities. 
This commenter's argument is essentially the same as that of NEI. This 
commenter also states that the proposed requirement is too vague in 
that it does not define how far beyond the DBT adequate protection 
should be demonstrated. With respect to the specificity of the 
petition, the NRC concurs that it would be difficult to construct 
criteria defining levels beyond the DBT for which demonstrations would 
be required. However, the question is moot because the NRC lacks the 
authority to require the demonstrations in the first place. Another 
individual commenter presents a discussion that generally does not 
address the elements of the petition. This commenter states that 
demonstrations of the capability of Federal authorities to ``take-back-
the-plant'' might be needed but adds that the adversary has easier and 
more effective means of achieving radiological sabotage than physical 
takeover of a plant. The Commission believes that this argument has no 
bearing on the merits of the petition.

Reason for Denial

    In December 1979, the President directed FEMA to assume lead 
federal responsibility for all offsite nuclear emergency planning and 
response. Homeland Security Presidential Directive-7, ``Critical 
Infrastructure Identification, Prioritization and Protection,'' assigns 
the lead role for coordinating offsite security responses to DHS. The 
NRC's cooperation in these planning and response activities is a factor 
in the NRC's determination that there is reasonable assurance that 
adequate protective measures can and will be taken in the event of a 
radiological emergency, whether or not the event is the result of 
sabotage.
    In addition, the petitioner has misinterpreted Appendix E to 10 CFR 
Part 50. The petitioner states that ``Appendix E to 10 CFR part 50 
currently requires periodic demonstrations that plant owners and 
external authorities can successfully meet their responsibilities 
during nuclear plant emergencies. * * *'' While licensees must make a 
good faith effort to secure the participation in emergency preparedness 
demonstrations of offsite authorities having a role in the emergency 
preparedness plan, Section IV.F.2.h of Appendix E and 10 CFR 50.47(c) 
recognize that such entities are at liberty to refuse to participate. 
This recognition is based on the fact that the NRC does not have the 
authority to require offsite authorities to participate in a nuclear 
power reactor licensee's exercises. Thus, the petitioner's reliance on 
Appendix E to 10 CFR Part 50 to support the request that the NRC 
require local, State, and Federal governments to participate in 
demonstrations of their capability to respond to beyond-DBT events is 
misplaced because the NRC cannot compel local, State, or Federal 
entities to take part in biennial emergency exercises if those entities 
do not choose to participate in emergency planning activities.
    For these reasons, the Commission finds that promulgating the 
petitioner's proposed requirements would exceed the NRC's authority and 
is denying PRM-50-83.

Commissioner Gregory B. Jaczko's Dissenting View on the Commission's 
Decision To Deny the Petition for Rulemaking Concerning Integrated 
Response

    I respectfully disagree with the decision to deny the petition for 
rulemaking as included in this Federal Register notice. The petitioners 
are asking for a more formal approach to ensuring licensees, local, 
State, and federal officials are closely coordinated to respond to a 
range of potential security events. The requested approach is modeled 
on the emergency preparedness exercises which currently take place, and 
I believe this proposal warrants further consideration.
    While it is certainly true that the NRC does not have the authority 
to require offsite federal agencies to participate in nuclear power 
reactor exercises, it is also true that our emergency preparedness 
regulations clearly read as if we do--for example: ``Offsite plans for 
each site shall be exercised biennially with full participation by each 
offsite authority having a role under the radiological response plan'' 
(10 CFR Part 50 Appendix E Section IV.F.2.c., emphasis added), and ``A 
full participation exercise which tests as much of the licensee, State, 
and local emergency plans as is reasonably achievable without mandatory 
public participation shall be conducted * * *'' (10 CFR Part 50 
Appendix E Section IV.F.2.a., emphasis added). As footnote 4 of that 
section makes clear, these exercises are for the purpose of ``testing 
major observable portions of the onsite and offsite emergency plans and 
mobilization of State, local and licensee personnel and other resources 
in sufficient numbers to verify the capability to respond to the 
accident scenario.'' (Id., emphasis added)
    10 CFR 50.47(c) does include provisions for determining that 
reasonable assurance exists even if States and local officials refuse 
to

[[Page 54746]]

participate in exercises. Thus it is implicit that we can not require 
their participation, but at the least we can certainly fully encourage 
it. Clearly, the regulations could be modified to require licensees to 
participate in Federal and State integrated response exercises that 
Federal, State and local agencies decide to pursue. They could also be 
drafted in such a way as to encourage interagency participation in 
these types of exercises, if a policy decision was reached concluding 
that was a good approach.
    The NRC is currently participating in integrated response 
initiatives with the Homeland Security Department and the Federal 
Bureau of Investigation to strengthen the ability of emergency response 
organizations and law enforcement around nuclear power plants to 
respond to events including potential beyond-DBT threats. The challenge 
to further pursuing integrated response exercises is not in securing 
the participation of government agencies which are eager to make 
additional progress, but rather with the willingness of the NRC's 
licensees to volunteer support for those efforts. That is a challenge 
that can be addressed by exercising the agency's authorities to compel 
such participation on the part of licensees. The NRC should pursue such 
a requirement if a substantive analysis by agency staff and the results 
of a public rulemaking determine it would provide additional protection 
to the common defense and security.
    Rather than searching for a legalistic reason to dismiss the 
petition, the agency would be much better served by analyzing the 
substance of the proposal and basing its decision on the petition for 
rulemaking on the merits. It is especially awkward to hang our hats on 
a lack of authority to pursue the petition when the legal basis for our 
authority over integrated response so closely parallels our authority 
in the emergency preparedness arena. Such an approach risks creating 
challenges to the important radiological emergency preparedness program 
we now have in place.

The Majority View of the Commission Regarding the Denial of a Petition 
for Rulemaking Submitted by David Lochbaum on Behalf of Project on 
Government Oversight and the Union of Concerned Scientists (PRM-50-83)

    The Commission majority does not share Commissioner Jaczko's 
dissenting view on the denial of PRM-50-83. The petitioner requested 
that the NRC add an appendix (or comparable regulation) similar to 
Appendix E of 10 CFR Part 50 which, the petitioner asserts, requires 
offsite entities having a role under the radiological response plan, to 
participate in biennial exercises designed to verify the capability of 
these entities to respond to the accident scenario. The petitioner has 
misconstrued Appendix E which, in fact, recognizes the NRC's lack of 
authority to require offsite entities to participate in biennial 
exercises. While Appendix E states in part that it requires nuclear 
power plant licensees to involve offsite authorities having a role in 
the emergency preparedness plan in biennial emergency preparedness 
demonstrations, it further states that ``[t]he participation of State 
and local governments in an emergency exercise is not required to the 
extent that the applicant has identified those governments as refusing 
to participate further in emergency planning activities. * * *'' (10 
CFR Part 50, Appendix E Section IV.F.2.h.).
    The Commission majority points out that the NRC does not have the 
statutory authority to require the participation of offsite authorities 
and that the NRC cannot confer such authority upon itself through 
rulemaking. We have reviewed the substance of the petition and are 
satisfied that adequate protection is, indeed, provided by the current 
integrated response framework. Therefore, we find no basis for granting 
PRM-50-83 or for initiating a rulemaking that would purport to require 
offsite authorities to participate in nuclear power plant licensees' 
exercises or to ``encourage'' such participation.
    The lead role for coordinating offsite security responses was 
assigned to the Department of Homeland Security (DHS) (Homeland 
Security Presidential Directive-7, ``Critical Infrastructure 
Identification, Prioritization, and Protection''). To that end, the NRC 
has worked with DHS and other agencies to improve the capabilities of 
first responders as part of the National Infrastructure Protection 
Plan. Part of this effort included the conduct of Comprehensive Reviews 
(CRs) at all commercial nuclear power plants which has resulted in the 
identification of numerous readily-adaptable protective measures for 
increased first responder readiness and preparedness in the event of a 
terrorist attack or natural disaster. The NRC also assisted DHS in the 
Buffer Zone Protection Program designed to support state, local and 
tribal law enforcement and other first responders to enhance the 
security of a range of ``Critical Infrastructures and Key Resources,'' 
which include nuclear power plants. In addition, the NRC has helped to 
advance offsite response capabilities by meeting with a range of 
federal stakeholders to ascertain their support and concurrence on a 
path forward for integrated response planning. The NRC continues to 
maintain regulatory attention on the effectiveness of emergency 
preparedness as extended to security-related scenarios. The NRC has 
been working with the Federal Emergency Management Agency as part of 
the ongoing Emergency Preparedness (EP) rulemaking to incorporate 
hostile action-initiated scenarios into periodic biennial exercises 
under Appendix E. These exercises are intended to test the ability of 
licensee personnel to coordinate with state and local responders under 
the National Incident Management System/Incident Command Structure to 
take appropriate actions to mitigate the impact of a terrorist attack 
on a commercial nuclear power plant. The NRC staff is also working with 
the power reactor industry, as part of a voluntary initiative response 
to NRC Bulletin 2005-02, where each reactor site is conducting a 
hostile action-based drill within a 3-year period. The NRC staff will 
be incorporating the lessons learned from these drills into its 
proposed EP rulemaking.
    As stated in our votes on this matter, we do not question the 
important role that offsite federal, state and local authorities play 
in a nuclear power plant's ability to successfully respond to attempted 
radiological sabotage greater than the design basis threat. The 
Commission majority believes that the current framework provides 
reasonable assurance that adequate protective measures can and will be 
taken in the event of radiological sabotage.

    Dated at Rockville, Maryland, this 17th day of September 2008.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-22174 Filed 9-22-08; 8:45 am]
BILLING CODE 7590-01-P


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