ML19113A184
| ML19113A184 | |
| Person / Time | |
|---|---|
| Site: | Nuclear Energy Institute |
| Issue date: | 04/19/2019 |
| From: | Schlueter J Nuclear Energy Institute |
| To: | |
| SECY/RAS | |
| References | |
| 84FR06980, 84FR6980, NRC-2014-0118, PR-73 | |
| Download: ML19113A184 (7) | |
Text
PR-73 12 84 FR 6980 From: SCHLUETER, Janet <jrs@nei.org>
Sent: Friday, April 19, 2019 12:04 PM To: Vietti-Cook, Annette Cc: King, Mike; Suggs, LaDonna; timothy.harris@nrc.gov
Subject:
[External_Sender] Industry Comments on Draft Revised Regulatory Basis for 10 CFR Part 73, Physical Protection of Plants and Materials for a Rulemaking to Enhance the Security of Special Nuclear Material; Docket ID NRC-2014-0118 Attachments: 04-19-19_NRC_Industry Comments on Draft Revised Part 73 Regulatory Basis+Attachment.pdf THE ATTACHMENT CONTAINS THE COMPLETE CONTENTS OF THE LETTER April 19, 2019 Ms. Annette Vietti-Cook Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Rulemakings and Adjudications Staff Submitted via Regulations.gov
Subject:
Industry Comments on Draft Revised Regulatory Basis for 10 CFR Part 73, Physical Protection of Plants and Materials for a Rulemaking to Enhance the Security of Special Nuclear Material; Docket ID NRC-2014-0118 Project Number: 689
Dear Ms. Vietti-Cook:
The Nuclear Energy Institute (NEI)[1], on behalf of its members, submits the following and attached comments on the subject Draft Revised Regulatory Basis for Part 73 published in the Federal Register on March 01, 2019 for public comment.
We appreciate extension of the comment period from April 01, 2019 to April 19, 2019 to allow for discussion and additional comment consideration during the April 02, 2019 public meeting on various fuel cycle regulatory initiatives.
We trust that the NRC will find these comments useful and informative, as it finalizes the draft revised regulatory basis and potentially proceeds to the proposed rulemaking phase. We look forward to future engagement on this important security topic. Please contact me or Hilary Lane of my staff (hml@nei.org) with any additional questions.
Sincerely, Janet R. Schlueter Senior Director, Fuel & Radiation Safety Nuclear Energy Institute 1201 F St NW, Suite 1100 Washington, DC 20004 www.nei.org 1
P: 202.739.8098 M: 202.468.6673 E: jrs@nei.org To help protect y ou r priv acy , Micro so ft Office prev ented au tomatic download of this pictu re from the Internet.
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[1] The Nuclear Energy Institute (NEI) is responsible for establishing unified policy on behalf of its members relating to matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEIs members include entities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect and engineering firms, fuel cycle facilities, nuclear materials licensees, and other organizations involved in the nuclear energy industry.
2
JANET R. SCHLUETER Senior Director, Fuel and Radiation Safety 1201 F Street, NW, Suite 1100 Washington, DC 20004 P: 202.739.8098 jrs@nei.org nei.org April 19, 2019 Ms. Annette Vietti-Cook Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ATTN: Rulemakings and Adjudications Staff Submitted via Regulations.gov
Subject:
Industry Comments on Draft Revised Regulatory Basis for 10 CFR Part 73, Physical Protection of Plants and Materials for a Rulemaking to Enhance the Security of Special Nuclear Material; Docket ID NRC-2014-0118 Project Number: 689
Dear Ms. Vietti-Cook:
The Nuclear Energy Institute (NEI)1, on behalf of its members, submits the following and attached comments on the subject Draft Revised Regulatory Basis for Part 73 published in the Federal Register on March 01, 2019 for public comment. We appreciate extension of the comment period from April 01, 2019 to April 19, 2019 to allow for discussion and additional comment consideration during the April 02, 2019 public meeting on various fuel cycle regulatory initiatives.
Background
NEIs October 17, 2014 comment letter highlighted significant industry concerns with the previous rulemakings scope and regulatory basis that were not fully addressed or resolved with publication of the final regulatory basis in January 2015. Subsequently, the rulemaking was halted in the 2016 timeframe due to various factors and, from our vantage point, has essentially been idle since that time.
We understand that a decision was made in late 2018 to limit the scope of this rulemaking to codification of the requirements contained in the post-9/11 security orders and interim compensatory measures (ICMs).
1 The Nuclear Energy Institute (NEI) is responsible for establishing unified policy on behalf of its members relating to matters affecting the nuclear energy industry, including the regulatory aspects of generic operational and technical issues. NEIs members include entities licensed to operate commercial nuclear power plants in the United States, nuclear plant designers, major architect and engineering firms, fuel cycle facilities, nuclear materials licensees, and other organizations involved in the nuclear energy industry.
Ms. Vietti-Cook April 19, 2019 Page 2 Should this rulemaking proceed, we support the decision to streamline this regulatory activity and significantly reduce the rulemaking scope to eliminate activities that had little to no nexus to increased safety or security.
The January 2019 draft revised regulatory basis resolves several of our 2014 comments, simply due to the fact that they are no longer applicable given the reduced scope. We also appreciate the clarification provided by staff during the April 2, 2019 public meeting that NRCs use of the word similar when describing the requirements to be codified reflects the fact that not all contents of the security requirements in place post 9/11 can be codified in the rule due to their sensitive, safeguards or classified nature. That being said, specific outstanding concerns with this approach and the draft revised regulatory basis are described below and in the attachment.
Resource Expenditure and Resulting Regulatory Patchwork Bottom line: If NRC continues with a rulemaking to codify a portion of the specific content of existing orders and ICMs--that have been in place for nearly 20 years--it should be realized that no additional security benefit will be gained by the expenditure of our limited mutual resources. Additionally, the codification of only a portion of the existing orders and ICMs does not substantially improve the NRCs transparency or regulatory clarity, which is the stated goal of this rulemaking. As NRC downsizes in terms of staff and budget, we question the necessity, priority and effectiveness of this effort. We suggest NRC carefully consider two alternate approaches as described at the end of this section.
We fully recognize that codification of existing orders is standard NRC practice. The security requirements in place today recognize the diversity of the small fleet of fuel cycle facilities and allow for a facility-specific, risk-informed and performance-based approach to meet the intent of the requirements. However, in this case, the rulemaking will codify only a portion of existing security requirements due to security considerations. As a result, portions of existing orders or ICMs will remain in place, similar to the NRCs attempt to codify the March 1, 2007 order imposing fingerprinting and criminal history check requirements for access to safeguards information into 10 CFR 73.21 and 73.22, while other orders or ICMs might be rescinded. As a result, the existing patchwork of requirements is only made larger by this rulemaking since some requirements would now be in the rule versus the orders and ICMs.
Further, NRC will need to clarify when, how and which NRC security orders, currently in effect, would be rescinded or relaxed. This NRC decision process and end result is unclear at this time. Clearly, this process will require careful internal NRC coordination, particularly since some security orders are not portion marked. In reference to Question #3 of the FRN, these factors will influence the implementation of the proposed requirements. Additionally, (and in reference to Question #4 of the FRN regarding unintended consequences), NRC should also clarify how potential conflicts between the final rule requirements and security orders would be rectified. For example, it is unclear whether the security order or rule takes precedence when one set of requirements is more restrictive or prescriptive than the other. For licensees that will follow both classified security orders and regulations, such an approach is inefficient and unnecessarily confusing. This patchwork of security requirements could lead to unintended consequences, unnecessary confusion or, worse, future non-compliance. This matter is complicated even further when you consider new/future licensees under Part 70, and whether a one-size-fits-all approach is appropriate.
Ms. Vietti-Cook April 19, 2019 Page 3 The effort to promulgate a rule will cost NRC and industry alike additional resources. As such, we agree with the draft regulatory basis statement that NRCs mandate for adequate protection has been fulfilled today in this arena. Security programs and plans have been successfully implemented to conform to the orders and ICMs, and have been routinely inspected against for nearly 20 years. As such, we challenge the NRC as to what would truly be accomplished with the rulemaking given: 1) the protracted rulemaking timeline; 2) when adequate protection has been fully realized and achieved in the current threat environment; and 3) the current approach could create confusion for licensees and NRC staff.
Suggested Alternate Approaches: 1) N o rulem aking at all. Given the concerns described above, one could argue that no action (no rulemaking) is the most efficient and effective approach. As a result, all requirements remain in effect in their original form and there is no possibility of unintended impacts or confusion. An element of this approach could be amending each license to simply reference the orders/ICMs in place today. 2) Direct final rule. NRC could issue a direct final rule to simply reference the previously-issued security orders and ICMs in the rule. As a result, there would be no need for staff to hand-select a portion of specific existing security requirements that can be made public in the rule. The orders and ICMs would remain in place. For future new licensees, NRC would simply issue security requirements specific to the licensed authorized operations and tie them down as a license condition.
Added Regulatory Burden to Certain Classes of Licensees Page 8 of the draft revised regulatory basis discussed potential licensee impacts and states the impact on licensees would be negligible. We disagree with this statement, as this is not true for all classes of licensees.
For example, Section 4.1, Changes for Category I Quantities of SNM highlights programmatic aspects for the Access Control, Human Reliability Program and Behavioral Observation Program, which are either duplicated in other programs, and/or appear to be expanded from the existing security orders.
Specific to Section 4.1, among others, we encourage the NRC to consider any additional comments submitted by licensees that may not be publically available on the NRC docket due to security considerations. In turn, we trust that NRC will respond to comments of a sensitive or proprietary nature, directly with the licensee, through the appropriate means.
With regards to Test, Research and Training Reactors (TRTR), it is possible that previously approved NRC security programs will require additional modification, based on requirements listed in Section 4.2, Changes for Category III Quantities of SNM. Given this fact, based on our routine interactions with this community, we are not confident that the appropriate level of NRC coordination and outreach occurred for this unique class of licensees throughout the history of this rulemaking. As staff prepares the Regulatory Analysis in conjunction with the Proposed Rule, we strongly encourage NRC to take into consideration the specific burdens that will be placed on the TRTR community, such as re-submitting a revised security plan, to comply with these new regulatory requirements.
Ms. Vietti-Cook April 19, 2019 Page 4 We trust that the NRC will find these comments useful and informative, as it finalizes the draft revised regulatory basis and potentially proceeds to the proposed rulemaking phase. We look forward to future engagement on this important security topic. Please contact me or Hilary Lane of my staff (hml@nei.org) with any additional questions.
Sincerely, Janet R. Schlueter Attachment c: Mr. Mike King, NMSS/FCSE, NRC Ms. LaDonna Suggs, RII/DFFI Mr. Timothy Harris, NSIR, NRC
Attachment Additional Areas Warranting Clarification or Modification
- 1. Section 4.2, bullet 1 states: To the extent practicable, document and maintain current agreements with applicable law enforcement agencies to include estimated response times and capabilities. This statement is not only problematic, but goes above and beyond current letters of agreement/MOUs with local law enforcement agencies, for several licensees. It is unlikely that local law enforcement will commit to putting a response time in writing. It is likely that this sort of information would be considered sensitive or safeguards information (SGI), which leads to additional considerations regarding handling and storing (by way of the local law enforcement agencies). The NRC should take under serious consideration that whether or not response times are agreed upon or documented will be highly varied, community-by-community. This statement should be removed, or at most, placed in guidance.
- 2. Section 4.2, bullet 2 refers to a threat warning system. This term is unclear without further specificity. The relationship of NRCs system to the existing Department of Homeland Securitys (DHS) threat level system is not clear based on this language. Similar language is also found in Section 4.1. This concern was also raised in our 2014 comments and not resolved in the draft revised regulatory basis. Further clarity is warranted to avoid confusion, particularly for new categories of licensees subject to this rule, e.g., Training, Research and Test Reactors.
- 3. Page 2 of the draft revised regulatory basis discusses the scope of the proposed rulemaking. As referenced in our 2014 comments, current operating power reactors have NRC-approved Part 73 physical security plans that provide high assurance against special nuclear material theft and diversion, which should not need to be modified or revised as part of this rulemaking. As a point of clarification, the final regulatory basis should clearly state that operating reactors would not be subject to new or revised Part 73 requirements applicable to special nuclear material located at the site and managed in compliance with existing NRC-approved Part 73 physical security plans.