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The NRC, with the approval of the US attorney general, recently published a second revision to its guidelines on the use of weapons by licensee security personnel whose official duties include the protection of designated facilities, certain radioactive material or other licensee property, and licensee material or property that is being transported to or from a licensee facility. The changes were made to ensure consistency with existing FBI procedures on appeals of background check delays or denials. The updated guidelines were published in the Federal Register on March 8, 2019, and took effect the same day.

By way of background, Section 161A of the Atomic Energy Act (42 USC § 2201a) provides statutory authority for the Commission to authorize the security personnel of an NRC licensee to transfer, receive, possess, transport, import, and use certain firearms, weapons, ammunition, or devices notwithstanding state, local, and certain federal firearms laws that prohibit such actions. This provision has been in effect since September 11, 2009, when the Commission issued the original Guidelines on the Use of Firearms by Security Personnel in Protecting U.S. NRC Regulated Facilities, Radioactive Material, and Other Property. On June 25, 2014, the NRC published Revision 1 to the Firearms Guidelines to clarify that only security personnel for licensees that actually apply for Section 161A authority are subject to the firearms background check requirements.

Both earlier versions of the Firearms Guidelines included a 45-day deadline for licensee security personnel to appeal a delayed or denied firearms background check response from the FBI. However, the Commission subsequently recognized that existing FBI procedures do not contain an analogous deadline. The Commission determined that it lacked the authority to impose such a deadline itself because the deadline has no nexus to radiological health and safety or the common defense and security. Accordingly, Revision 2 of the Firearms Guidelines removes the 45-day deadline for appealing a delayed or denied firearms background check response from the FBI, and the related process for seeking an extension of that deadline.

We will continue to track any further developments related to the NRC’s Firearms Guidelines and its related rulemaking on Enhanced Weapons, Firearms Background Checks, and Security Event Notifications. The final rule is expected to be published in summer 2019.