ML23332A192
| ML23332A192 | |
| Person / Time | |
|---|---|
| Site: | Kewaunee  |
| Issue date: | 11/28/2023 |
| From: | Jeffery Lynch EnergySolutions, Kewaunee Solutions |
| To: | Office of Nuclear Material Safety and Safeguards, Office of Nuclear Reactor Regulation, Document Control Desk |
| References | |
| KS-2023-022 | |
| Download: ML23332A192 (1) | |
Text
November 28, 2023 KS-2023-022 10 CFR 73.5 U. S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, DC 20555-0001 Kewaunee Solutions, Inc.
Facility Operating License No. DPR-43 NRC Docket Nos. 50-305 and 72-64
Subject:
Request for Exemptions from Enhanced Weapons, Firearms Background Checks, and Security Event Notifications Implementation On March 14, 2023, the Nuclear Regulatory Commission (NRC) noticed in the Federal Register, Final Rule, Enhanced Weapons, Firearms Background Checks, and Security Event Notifications.
This final rule became effective April 13, 2023, with a compliance date of January 8, 2024.
In response to the publication of the final rule, Kewaunee Solutions, Inc. (KS) performed a review to compare the new rule against current requirements, NRC endorsed documents, and other guidance documents published by the NRC. KS also evaluated the broad impact across multiple organizations and the change management scope.
In accordance with 10 CFR 73.5, KS is requesting an exemption from the specific requirements in 10 CFR Part 73, Subpart T, Security Notifications, Reports, and Recordkeeping, 10 CFR 73.1200(a) through 10 CFR 73.1200(t), Notification of Physical Security Events, 10 CFR 73.1205(a)(1) through 10 CFR 73.1205(e), Written Follow-up Reports of Physical Security Events, 10 CFR 73.1210(a)(1) through10 CFR 73.1210(h), Recordkeeping of Physical Security Events, and 10 CFR 73.1215(a) through 10 CFR 73.1215(f), Suspicious Activity Reports, until the later of December 31, 2024, or 180 days after publication of the final Regulatory Guides.
KS is requesting an exemption from using the definitions for the terms Contraband, and Time of Discovery as recently revised in 10 CFR 73.2, Definitions, until the later of December 31, 2024, or 180 days after publication of the final Regulatory Guides. The exemption would not apply to the definitions of those terms that were in effect prior to the issuance of the 2023 revisions.
KS is not requesting an extension to the compliance date for KS for specific requirements in Title 10 of the Code of Federal Regulations (10 CFR) Part 73, Subpart B, Enhanced Weapons, Preemption, and Firearms Background Checks, described in 10 CFR 73.15, Authorization for
KS-2023-022 Request for Exemption Page 2 of 2 Use of Enhanced Weapons and Preemption of Firearms Laws, and 10 CFR 73.17, Firearm Background Checks for Armed Security Personnel.
Based on NRCs projected timeline for completion of revision to the applicable Regulatory Guides associated with this final rule, and the time necessary for KS to go through the change management processes adequately, KS is requesting a new compliance date of December 31, 2024, or 180 days after publication of final Regulatory Guides, whichever is later.
The attachment to this letter provides the justification and rationale for the exemption request. The requested exemption from the specific requirements in 10 CFR Part 73, is permissible under 10 CFR 73.5 because it is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security.
KS requests approval of this exemption by January 8, 2024, so actions can be taken to ensure consistent and reliable reporting procedures.
There are no regulatory commitments contained in this submittal.
If you have any questions or require additional information, please contact Mr. Joseph R. Lynch at 508-728-1421.
Respectfully, Joseph R. Lynch Nuclear Licensing Manager EnergySolutions, LLC
Attachment:
Request for Exemption from Specific Requirements in New 2023 Security Rule cc:
Regional Administrator, Region III Mr. Karl Sturzebecher, NRC Project Manager, NMSS/DUWP/RDB Director, Division of Nuclear Security, Office of Nuclear Security, and Incident Response Joseph R. Lynch Digitally signed by Joseph R.
Lynch Date: 2023.11.28 13:19:51
-05'00'
KS-2023-022 Request for Exemption ATTACHMENT REQUEST FOR EXEMPTION FROM SPECIFIC REQUIREMENTS IN NEW 2023 SECURITY RULE (9 Pages Follow)
KS-2023-022 Attachment Page 1 of 9 Kewaunee Power Station Request for Exemption from Specific Requirements in New 2023 Security Rule A. BACKGROUND On March 14, 2023, the Nuclear Regulatory Commission (NRC) issued a Final Rule entitled Enhanced Weapons, Firearms Background Checks, and Security Event Notifications.1 This final rule became effective April 13, 2023, with a compliance date of January 8, 2024. The final rule contains several new elements such as:
New terminology and associated requirements covering conditions adverse to security New definitions of the terms contraband and time of discovery in 10 CFR 73.2 New point of contact requirements with the Federal Aviation Administration (FAA)
Changes to the reporting requirements applicable to security events from:
1-hour notifications and 24-hour recording of security events, to 1-hour, 4-hour, 8-hour notifications and 24-hour recording of security events.
Codifies the accelerated call to the NRC from NRC Bulletin 2005-02 to a new 15-minute notification.
Concurrently with the publication of the final rule, the NRC issued the following Regulatory Guides (RG) to support the implementation requirements set forth in the final rule:
5.62, Physical Security Event Notifications, Reports, and Records, Revision 2 5.86, Enhanced Weapons Authority, Preemption Authority, and Firearms Background Checks, Revision 0 5.87, Suspicious Activity Reports, Revision 0 During the August 23, 2023, public meeting, the NRC recognized there are ambiguities and inconsistencies contained by the final rule language and associated guidance. The discussed revision date for clarifying guidance publication was April 2024, which is three months after the compliance date of January 8, 2024. Additionally, the NRC recognized the need for rulemaking to address the issues with the final rule language.
Accordingly, Kewaunee Solutions, Inc. (KS) is requesting an exemption from the specific requirements in 10 CFR Part 73, Subpart T, Security Notifications, Reports, and Recordkeeping, 10 CFR 73.1200(a) through 10 CFR 73.1200(t), Notification of Physical Security Events, 10 CFR 73.1205(a)(1) through 10 CFR 73.1205(e), Written Follow-up Reports of Physical Security Events, 10 CFR 73.1210(a)(1) through10 CFR 73.1210(h), Recordkeeping of Physical Security Events, and 10 CFR 73.1215(a) through 10 CFR 73.1215(f), Suspicious Activity 1 Enhanced Weapons, Firearms Background Checks, and Security Event Notifications; Final rule and guidance, 88 Fed. Reg. 15864 (March 14, 2023).
KS-2023-022 Attachment Page 2 of 9 Reports, until the later of December 31, 2024, or 180 days after publication of the final Regulatory Guides.
KS is requesting an exemption from using the definitions for the terms Contraband, and Time of Discovery as recently revised in 10 CFR 73.2, Definitions, until the later of December 31, 2024, or 180 days after publication of the final Regulatory Guides. The exemption would not apply to the definitions of those terms that were in effect prior to the issuance of the 2023 revisions.
KS is not requesting an extension to the compliance date for KS for specific requirements in Title 10 of the Code of Federal Regulations (10 CFR) Part 73, Subpart B, Enhanced Weapons, Preemption, and Firearms Background Checks, described in 10 CFR 73.15, Authorization for Use of Enhanced Weapons and Preemption of Firearms Laws, and 10 CFR 73.17, Firearm Background Checks for Armed Security Personnel.
KS requests approval of this exemption by January 8, 2024, so actions can be taken to ensure consistent and reliable reporting procedures.
B. BASIS FOR EXEMPTION REQUEST 10 CFR 73.5 allows the Commission to grant exemptions from the requirements of Part 73 as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest. As explained below, this exemption request meets the criteria provided in section 73.5.
KS has identified several issues in the final rule and the supporting Regulatory Guides that require clarification from the NRC for KS to successfully implement the requirements. As mentioned above, the NRC is currently developing a resolution for code language issues and addressing guidance revisions. The NRC plans to issue additional guidance in April 2024, three months after the compliance date of January 8, 2024. Without additional guidance, enforcement relief, and/or the approval of this exemption, it is likely that KS will need to make changes to its physical security plans and processes twice - once to come into compliance with its own interpretation of the final rule (without the benefit of the additional guidance being developed by NRC), and again once the additional guidance is issued. The ambiguity and conflict created by the final rule language and existing guidance, which is described below, could result in unnecessary confusion and distraction that detract from the current high level of assurance provided by KSs existing physical security program. Thus, implementation of the final rule prior to issuance of additional clarifying guidance, at a minimum, is not in the best interest of the public. The following are several issues that have been identified as examples:
KS-2023-022 Attachment Page 3 of 9
- 1. CONDITIONS ADVERSE TO SECURITY The introduction of the term conditions adverse to security within 10 CFR 73.1210 is undefined, and ambiguous. KS has established, as required, a formal Corrective Action Program IAW 10 CFR Part 50 Appendix B, Criterion XVI. KS has developed procedures/processes to determine conditions adverse to quality as it relates to the security organization, (e.g., Condition Adverse to Regulatory Compliance.)
KS Procedure PI-KW-200, Corrective Action, defines specific events, situations or occurrences that result in a condition adverse to quality. Security-related items are included.
Given the robust nature of the Corrective Action Program, the additional duplication of procedures and/or revision of procedures to accommodate a new term is unnecessary, adds burden, and provides no increased value, safety margin or improvements to security programs or the Corrective Action Program.
- 2. DEFINITIONS IN 10 CFR 73.2 New definitions in § 73.2 expand existing definitions provided in NRC RG 5.76, Physical Protection Programs at Nuclear Power Reactors. KS has used the existing definitions to design its Security Plan (titled Kewaunees Security Plan, Training And Qualification Plan, And Safeguards Contingency Plan) and associated programs and procedures. Examples of the issues include:
Contraband: Specifically, the exempli gratia or e.g. parenthetical describing other dangerous materials as specifically including disease causing agents requires licensees to protect against circumstances beyond the current Design Basis Threat (DBT) as described in 10 CFR 73.1. The application of this expanded definition will require changes to KSs methods of compliance with the requirements of 10 CFR 73.55(g)(1)(ii)(B).
Paragraphs (g)(1)(ii)(B) requires (emphasis added):
§ 73.55(g) Access controls.
(1) Consistent with the function of each barrier or barrier system, the licensee shall control personnel, vehicle, and material access, as applicable, at each access control point in accordance with the physical protection program design requirements of
§ 73.55(b).
(ii) Where vehicle barriers are established, the licensee shall:
KS-2023-022 Attachment Page 4 of 9 (B) Search vehicles and materials for contraband or other items which could be used to commit radiological sabotage in accordance with paragraph (h) of this section.
§ 73.55(h) Search programs.
(1) The objective of the search program is to detect, deter, and prevent the introduction of firearms, explosives, incendiary devices, or other items which could be used to commit radiological sabotage. To accomplish this the licensee shall search individuals, vehicles, and materials consistent with the physical protection program design requirements in paragraph (b) of this section, and the function to be performed at each access control point or portal before granting access.
(2) Protected area searches. Licensees shall search all personnel, vehicles and materials requesting access to protected areas.
§ 73.55(g) uses the term contraband, while § 73.55(h) uses terminology consistent with that found in the definition of contraband in RG 5.76. The specific inclusion of disease causing agents in the new regulatory definition of contraband will require KS to modify its programs and procedures describing the methods of compliance with paragraph § 73.55(g). KS understands that the NRC is looking at potential resolutions for this issue, but until further guidance is issued, or rulemaking occurs, KS is unable to come into compliance with this requirement as written without making significant changes to its physical security program.
Time of Discovery: Specifically, the term cognizant individual and is considered anyone who, by position, experience, and/or training, is expected to understand that a particular condition or event adversely impacts security. Currently, security plans incorporate the definition for Time of Discovery, which is found in RG 5.76, being a supervisor or manager makes a determination that a verified degradation of a security safeguards measure or a contingency situation exists, to establish T=0 for a security related event.
The new definition expands the pool of personnel previously used by licensees to determine T=0 for an event, due to the undefined nature of position, experience, and/or training.
Additionally, the broader nature and lower threshold for recognition of something that simply adversely impacts security, versus recognition of verified degradation of a security safeguards measure or a contingency situation contributes to the expansion of pool of personnel. KS is confident, the term in RG 5.76, is the appropriate threshold for T=0 for security related events. The application of this expanded definition will require KS to expand current security programs to incorporate the expanded and revised training modules onsite for general plant employees, and the responsibility for implementation of the expanded training across a broad spectrum of personnel at the station.
KS-2023-022 Attachment Page 5 of 9
- 3. FEDERAL AVIATION ADMINISTRATION (FAA) LOCAL CONTROL TOWER POINT OF CONTACT 10 CFR 73.1215 establishes reporting requirements for suspicious activities involving aircraft to a licensees local FAA control tower. Specifically, licensees are required to:
Establish a point of contact with their local FAA control tower, and Document the point of contact in written communication procedures.
The code language is very specific regarding establishing a point of contact with the local FAA control tower. KS has established a local FAA contact phone number; however, the FAA website does not identify any locations in the state of Wisconsin as having FAA-operated airport traffic control towers. FAA contracts out operation of certain towers staffed by employees of private companies rather than FAA employees. This program includes several towers in the state of Wisconsin. It is therefore unclear, from the specific wording of the requirement in the regulation to establish a point of contact with the local FAA control tower, whether the local FAA contact established by KS complies with this regulatory requirement.
The requirement of establishing and documenting a local FAA control tower point of contact does not add additional safety margin to the protection of the Kewaunee Power Station.
- 4. REGULATORY GUIDES Examples of clarification needed in the supporting Regulatory Guide 5.62, Revision 2, Physical Security Event Notifications, Reports, and Records include:
4-hour vs. 15-minute notification requirement:
§ 73.1200(e)(1)(iii) and (iv) requires a 4-hour notification for contraband attempted or actual introduction of contraband into a protected area (PA), vital area (VA), or material access area (MAA).
The definition of contraband contains the term incendiaries.
§ 73.1200(a) requires a 15-minute notification for hostile actions.
RG 5.62, Rev 2, Section 7.1, page 24, provides examples of hostile actions:
(4) The discovery of unauthorized explosive materials, incendiary materials, or an improvised explosive device within the licensees site boundary.
The code language requires a 4-hour notification for an incendiary device at or inside the PA, VA, or MAA. The reg guide drives licensee to a 15-minute notification for an incendiary device at the site boundary, which is further away from safety related equipment.
KS-2023-022 Attachment Page 6 of 9 The notification conflict the regulatory guide introduced between a 15-minute and 4-hour notification is burdensome, confusing, and makes the consistency and success for this notification unpredictable. Station personnel are trained in referencing published Regulatory Guides, station procedures and guidance, and other industry documents, as a best practice, to support the accuracy of determination of notification events.
The inconsistency created by RG 5.62 unnecessarily creates the potential for confusion and human performance error.
4-hour notification vs. 24-hour recording of lost or uncontrolled weapon:
§ 73.1200(e)(1)(v) requires a 4-hour notification for a lost or uncontrolled weapon.
§ 73.1210(f) requires recording within 24-hours physical security events or conditions that decreases the effectiveness of the physical security program.
RG 5.62, Rev 2, Section 18.2, page 38, provides examples of the Recordable Events and Conditions Regarding Decreases in Effectiveness, that 73.1210(f) requires. The regulatory guide includes an event involving the loss of control of an authorized security weapon within a PA, VA, MAA, or controlled access area (CAA).
The conflict between the notification and recording of a lost or uncontrolled weapon only exists because of the regulatory guidance in RG 5.62. As a best practice, and to support accurate determination of notification events, station personnel are trained in referencing published Regulatory Guides, station procedures and guidance, and other industry documents. Additional clarity is needed in order to support the implementation of notifications and recordkeeping in a consistent and successful manner.
Malevolent intent discussion 10 CFR 73.1200 only refers to the term malevolent intent in § 73.1200(q)(2) as exempli gratia or e.g. parenthetical describing a circumstance where a licensee may desire to retract a previous physical security event notification.
RG 5.62, Rev 2, Section 2, page 21, titled, Malevolent Intent and Credible Bomb Threat Considerations, states the NRCs position that only government officials have the necessary resources and qualifications to determine whether malevolent intent was present in a security event.
During the May 2023, and August 2023, public meetings, the NRC was unable to consistently describe when licensees were capable of this determination, and when licensees were required to have government officials make this determination.
KS-2023-022 Attachment Page 7 of 9 Within the NRC Response to Public Comments, ML16264A004,2 comment K-21 contains the discussion regarding credible, and puts into context, the circumstances of the NRCs position, as it relates to the determination of malevolent intent.
It is clear, that as of the publication date of March 2023, the discussion revolves around the 15-minute notification requirements, and not blanketly across all security related events.
KS is aligned that in certain circumstances, external government agencies would be the most appropriate to determine malevolent intent, (e.g., credible bomb threat, credible threat). However, KSs position on the capability to determine intent as it relates to identifying Human Performance errors, as well as determining Trustworthy and Reliability for Access purposes remains with KS.
The lack of clarity of the scope and/or intent of when it is appropriate for external government officials to determine malevolent intent creates ambiguity.
Final clarity is needed to prevent KS having to unnecessarily change security programs and procedures, such as access authorization, to incorporate a process to await investigation results from NRCs Office of Investigations (OI), the intelligence community, or a federal, State, or local law enforcement agency.
C. CONSIDERATIONS FOR EXEMPTION As highlighted in the selected examples above, KS moving towards a compliance date of January 8, 2024, without full clarity on key parts of the final rule would result in an inadequate implementation. Unknown success path towards compliance of the final rule, as written, in current code language; along with the conflict and confusion the published, publicly available, stated positions of the NRC, are key elements for this request. KS would find themselves in a situation where the modification to security plans and procedures would be required at least twice, based on interpretation of this new rule. KS is requesting the following considerations be taken into account during review of this request:
KSs current site security plan implements the requirements of 10 CFR 73.71, Reporting of Safeguards Events for reporting the suspension of security measures.
KS will continue to comply with security event reporting, as previously required in 10 CFR 73.71, Reporting of Safeguards Events and Appendix G to Part 73, Reportable Safeguards Events.
2 NRC Response to Public Comments, Enhanced Weapons, Firearms Background Checks, and Security Event notifications Rule, NRC-2011-0018; RIN 3150-AI49
KS-2023-022 Attachment Page 8 of 9 KS will use the definitions for the terms "Contraband" and "Discovery (time of)," in its current site Security Plan consistent with how these terms are currently defined in Regulatory Guide 5.76, "Physical Protection Programs at Nuclear Power Reactors."
KS is currently implementing a formal Corrective Action Program and has identified Conditions Adverse to Quality as they relate to Security Programs as items that are Conditions Adverse to Regulatory Compliance.
KS can currently contact the FAA, in general, at number 920-431-5753.
KS is currently capable of making voluntary reports of suspicious activities, and this will not change in the interim until the new compliance date and allow for final revised regulatory guidance issuance.
KS Procedure GO-KW-SS-0105, Aircraft Over Flight NOTAM Violation Notification Reporting, is used for voluntary reporting.
The burden associated with rework for KS is unnecessary while awaiting final clarity with publication of associated Regulatory Guides. Several examples of where rework will be required are:
Revisions of associated procedures/processes, job aids, training materials and lesson plans that are used to describe and elaborate on reporting requirements.
The re-training of impacted station personnel with updated information contained within the revised guidance documents:
Security Regulatory/Compliance Emergency Response Operations D. JUSTIFICATION FOR EXEMPTION Based on NRCs projected timeline for completion of revision to the applicable Regulatory Guides associated with this final rule, KS is requesting a new compliance date of December 31, 2024, or 180 days after publication of final Regulatory Guides, whichever is later.
As stated above, KS will continue to implement the Security Plan as documented. Since it has been reviewed and approved by the NRC, the KSs Security Plan provides reasonable assurance of safety and security. The delay in implementation of the final rule will not impact proper implementation of the current Security Plan and will ensure that the final rule is effectively implemented. Thus, granting of this exemption will not endanger the life or property or common defense and security.
Implementation of the final rule without further interface, clarity, and refined guidance may result in unintended consequences which could reduce the effectiveness of the current Security Plan.
Therefore, it is in the publics interest that KSs Security Plan and associated procedures/processes
KS-2023-022 Attachment Page 9 of 9 comprehensively and accurately implement the regulation and guidance documents once resolution is obtained of identified issues.
The granting of this exemption would not violate the Atomic Energy Act, as the compliance date for the final rule is not required nor specified in the AEA as amended, any provisions of the Commissions regulations, or any other legally binding requirements imposed by the Commission.
Thus, issuance of this exemption request would be consistent with 10 CFR 73.5 because it is authorized by law and will not endanger life or property or the common defense and security and
[is] otherwise in the public interest.
E.
ENVIRONMENTAL CONSIDERATIONS KS is requesting an exemption from the specific requirements for the 2023 Security Rule, "Enhanced Weapons, Firearms Background Checks, and Security Event Notifications," effective as of April 13, 2023. The following information is provided in support of an environmental assessment and finding of no significant impact for the proposed exemption. KS has determined that the exemption involves no significant increase in the amounts, and no significant change in the types, of any effluents that may be released offsite; that there is no significant increase in individual or cumulative public or occupational radiation exposure; that there is no construction impact; and there is no significant increase in the potential for or consequences from a radiological accident. Accordingly, the proposed one-time exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(25). Pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the issuance of this proposed exemption request.