United States: NRC Proposed Weapons Rule On Preemption Authority And Enhanced Weapons

Earlier this month, the U.S. Nuclear Regulatory Commission (NRC) held a public meeting to discuss a proposed weapons rulemaking to implement Section 161A, "Use of Firearms by Security Personnel," of the Atomic Energy Act (AEA). Section 161A was added to the AEA through the Energy Policy Act of 2005.

Section 161A provides two new forms of authority to the NRC to authorize certain licensees, including power reactor and uranium enrichment licensees, to (1) possess and use enhanced weapons and (2) preempt state, local, and certain federal firearms laws that prohibit or restrict the use of enhanced weapons and other types of weapons, referred to collectively as "covered weapons." The NRC refers to these authorities, which are intended to increase a licensee's defensive capabilities, as "combined enhanced-weapons authority and preemption authority" and "stand-alone preemption authority," respectively. Application for these new authorities is voluntary. 

The proposed rulemaking would also mandate that each security officer with access to "covered weapons" at designated facilities complete a satisfactory fingerprint-based firearms background check regardless of whether the licensee applies to the NRC for the new weapons authority. "Covered weapon" means "any handgun, rifle, shotgun, short-barreled shotgun, short-barreled rifle, semi-automatic assault weapon, machinegun, ammunition for any such weapon, or large capacity ammunition feeding device."

The proposed rule was published in the Federal Register on 3 February 2011 and is open for public comment until 2 August 2011.

Who is covered by the weapons rule?

Under the proposed rule, power reactor facilities and Category I SSNM facilities, such as fuel fabrication facilities and uranium enrichment facilities, would be required to complete satisfactory fingerprint-based firearms background checks for all security personnel with access to covered weapons and would be permitted to apply for "combined enhanced-weapons authority and preemption authority" or "stand-alone preemption authority":

How would the new weapons rule affect these facilities?

Required firearms background checks. If promulgated, the rule would mandate that every security officer with access to covered weapons at designated facilities complete a satisfactory firearms background check, which consists of two parts: (1) a fingerprint-based background check against the Federal Bureau of Investigation (FBI) fingerprint system and (2) a background check of the individual's identifying information against the Federal National Instant Background Check System (NICS). In order for the firearms background check to be conducted, the proposed regulations indicate that the licensee must submit to the NRC the following information for each individual being checked: (1) a set of fingerprints for the FBI fingerprint check and (2) a completed NRC Form 754 (now in draft form) that contains the individual's personal information necessary to conduct the NICS check. The firearms background checks are in addition to any other background checks or criminal history checks required for security personnel under NRC regulations or orders.

Weapons authority. To overcome potential conflicts with state, local, and some federal firearms laws and to enhance security at their facilities, eligible licensees may wish to apply for "stand-alone preemption authority" or "combined enhanced-weapons authority and preemption authority".

• Stand-alone preemption authority. Section 161A stand-alone preemption authority requires an NRC determination that the requested permission is necessary in the discharge of the official duties of security personnel. Licensees that possess or seek to possess standard weapons need only apply for stand-alone preemption authority. "Standard weapons" include "any handgun, rifle, shotgun, semi-automatic assault weapon, or a large capacity ammunition feeding device." A licensee that obtains NRC approval would be permitted to use, possess, or obtain such weapons as semi-automatic assault weapons, large-capacity ammunition magazines, or remotely operated weapons systems (ROWS) that might otherwise be restricted by state or local laws and by certain federal laws.
• Enhanced weapons authority.  If a licensee would like to use enhanced weapons at its facility, the NRC can grant such authority as well. "Enhanced weapons" include "any shortbarreled shotgun, short-barreled rifle, or machine gun." Section 161A requires a licensee obtaining enhanced weapons authority to also obtain preemption authority. 

What should affected licensees be thinking about now?

• Avoid the bottleneck. All licensees covered by the rule are required to have satisfactory firearms background checks completed within 180 days of an effective final rule or otherwise remove security personnel with incomplete firearms background checks from duties requiring access to covered weapons. The NRC staff noted during its June meeting that the NRC cannot grant exemptions to this requirement. The staff also stated that it cannot begin the background checks until the Commission officially "designates" the affected licensees in the final rule or order. Thus, while the background checks cannot start now, affected licensees should be preparing to submit the required documentation as soon as the rule is final (or earlier, if the NRC issues an order designating the facilities) so that they avoid delays in meeting the deadline.
• Protect your security personnel. A licensee's security personnel may be currently using a weapon that could be considered banned or restricted by state or local law. By applying for express preemption authority under Section 161A, licensees will be able to clarify that security personnel are not exposed to potential liability associated with their possession and use of these weapons, particularly when possessing the weapons offsite (such or for training purposes). Licensees in states with strict gun control laws, such as California, Connecticut, Maryland, New Jersey, and New York, should be especially cognizant of this issue.
• Enhance site security. By applying for and receiving authority for stand-alone preemption or combined enhanced weapons and preemption authority, licensees may be better able to protect their facilities and the special nuclear material they possess. Thus, licensees should evaluate the costs and potential benefits of applying for these new weapons authorities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.