ML23345A081
| ML23345A081 | |
| Person / Time | |
|---|---|
| Site: | Vallecitos Nuclear Center, 07000754, 07200001, Vallecitos |
| Issue date: | 12/11/2023 |
| From: | Murray S GE Hitachi Nuclear Energy |
| To: | Office of Nuclear Material Safety and Safeguards, Office of Nuclear Reactor Regulation, Document Control Desk |
| References | |
| M230165 | |
| Download: ML23345A081 (1) | |
Text
HITACHI December 11, 2023 M230165 Via Electronic Information Exchange ATTN: Document Control Desk U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, MD 20852 Nuclear Test Reactor (NTR)
License No. R-33 NRC Docket No. 50-73 Vallecitos Boiling Water Reactor (VBWR)
License No. DPR-1 NRC Docket No. 50-18 GE Hitachi Nuclear Energy Scott P. Murray Manager, Facility Licensing 3901 Castle Hayne Road P.O. Box 780 Wilmington, NC 28402 USA T (910) 819-5950 scott.murray@ge.com 10 CFR 73.5 ESADA Vallecitos Experimental Superheat Reactor (EVESR)
License No. DR-10 NRC Docket No. 50-183 General Electric Test Reactor (GETR)
License No. TR-1 NRC Docket No. 50-70 Vallecitos Nuclear Center License No. SNM-960 NRC Docket No.70-754 GE Morris Operation License No. SNM-2500 NRC Docket No. 72-1
Subject:
Request for Exemption 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.
M230165 U.S. NRC December 11, 2023 Page 2 of 2 In response to the publication of the final rule, GE Hitachi Nuclear Energy Americas. LLC (GEHA) performed a gap analysis to compare the new rule against current requirements, NRC endorsed documents, and other guidance documents published by the NRC.
In accordance with 10 CFR 73.5, GEHA is requesting an exemption from the compliance date of January 8th, 2024. Based on NRC's projected timeline for completion of revision to the applicable Regulatory Guides associated with this final rule, and the time necessary for GEHA to go through the change management processes adequately to include the number of training weeks that will be required, GEHA 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 compliance date of January 8th, 2024, 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.
GEHA requests approval of this exemption by January 7, 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 me at the above number.
Sincerely, s(ol~@~~
Facility Licensing
~
Attachment:
Request for Exemption from January 8th, 2024, compliance date.
Cc: 0. Siurano, NMSS/DFM/FFLB G. Wertz, NRR/DANU/UNPL K. Banovac, NMSS/DFM/STLB J. Parrott, NMSS/DUWP/RDB SPM 23-044
M230165 U.S. NRC December 11, 2023 Page 1 of 5 Attachment Request for Exemption from January 8th, 2024, compliance date 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 reporting requirements applicable to security events from:
o 1-hour notifications and 24-hour recording of security events To:
o 1-hour, 4-hour, 8-hour notifications and 24-hour recording of security events Concurrently with the publication of the final rule, the NRC issued the following Regulatory Guides 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 3 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.
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.
GEHA has identified several issues in the final rule and the supporting Regulatory Guides that require clarification from the NRC in order for GEHA 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 1 "Enhanced Weapons, Firearms Background Checks, and Security Event Notifications; Final rule and guidance," 88 Fed. Reg. 15864 (March 14, 2023).
M230165 U.S. NRC December 11, 2023 Page 2 of 5 to issue additional guidance in April 2024, 3 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 GEHA will need to make changes to its 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 GEHA existing physical security program. Thus, GEHA does not believe implementation of the final rule prior to issuance of additional clarifying guidance, at a minimum, is in the best interest of the public. The following are several issues that have been identified as examples:
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 PA, VA, or MAA.
o The definition of contraband contains the term "incendiaries".
§ 73.1200(a) required a 15-minute notification for hostile actions.
o 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 licensee's 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.
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. Site personnel are trained and fluent in referencing published Regulatory Guides, site procedures and guidance, and other industry documents, as a best practice, to support the accuracy of determination of notification events.
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.
§ 73.121 O(f) requires recording within 24-hours "physical security events or conditions that decreases the effectiveness of the physical security program."
o RG 5.62, Rev 2, Section 18.2, page 38, provides examples of the "Recordable Events and Conditions Regarding Decreases in
M230165 U.S. NRC December 11, 2023 Page 3 of 5 Effectiveness", that 73.121 O(f) requires. The regulatory guide includes an event involving the loss of control of an authorized security weapon within a PA VA MAA, or CAA.
The inconsistency created by RG 5.62 unnecessarily creates the potential for confusion and human performance error.
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.
o RG 5.62, Rev 2, Section 2, page 21, titled, "Malevolent Intent and Credible Bomb Threat Considerations," states the NRC's position that only government officials have the necessary resources and qualifications to determine whether malevolent intent was present in a security event.
o 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.
o 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 NRC's 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.
GEHA 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, GEHA's 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 GEHA.
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 GEHA having to unnecessarily change security programs and procedures, such as access authorization, to incorporate a process to await investigation results from NRC's Office of Investigations (01), the intelligence community, or a federal, State, or local law enforcement agency.
C.
CONSIDERATIONS FOR EXEMPTION 2 NRC Response to Public Comments, "Enhanced Weapons, Firearms Background Checks, and Security Event notifications Rule", NRC-2011-0018; RIN 3150-Al49
M230165 U.S. NRC December 11, 2023 Page 4 of 5 As highlighted in the selected examples above, GEHA moving towards a compliance date of January 8, 2023, 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. GEHA would find themselves in a situation where the modification to security programs and procedures would be required at least twice, based on interpretation of this new rule. GEHA is requesting the following considerations be taken into account during review of this request:
GEHA will continue to comply with the confirmatory orders that were issued post 9/11.
GEHA is currently complying with security event reporting under Part 73, and this will not change in the interim until the new compliance date and allow for final RG issuance.
GEHA 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 RG issuance.
GEHA believes the burden associated with rework is unnecessary while we await final clarity with publication of associated Regulatory Guides. Examples of where rework will be required are:
o Revisions of associated procedures/processes, job aids, training materials and lesson plans that are used to describe and elaborate on reporting requirements.
o The re-training of impacted personnel with updated information contained within the revised guidance documents:
Security Regulatory/Compliance Operations D.
JUSTIFICATION FOR EXEMPTION Based on NRC's projected timeline for completion of revision to the applicable Regulatory Guides associated with this final rule, GEHA 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, GEHA will continue to implement its security programs as documented.
Since they have been reviewed and approved by the NRC, the NRC has deemed GEHA's security programs provide reasonable assurance of safety and security. The delay in implementation of the final rule will not impact proper implementation of current security programs 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 programs. Therefore, it is in the public's interest that GEHA's security programs and associated procedures/processes comprehensively and accurately implement the regulation and guidance documents once resolution of identified issues has been obtained.
M230165 U.S. NRC December 11, 2023 Page 5 of 5 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 Commission's 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 ASSESSMENT GEHA is requesting an exemption from the compliance date of January 8, 2024, for the Enhanced Weapons, Firearms Background Checks, and Security Event Notifications.
The following information is provided in support of an environmental assessment and finding of no significant impact for the proposed exemption.
GEHA 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.