On 5 June 2013, the U.S. Nuclear Regulatory Commission (NRC) issued an order designating ten nuclear facilities as eligible to apply to the Commission for Section 161A preemption authority (named for Section 161A of the Atomic Energy Act) to use certain weapons in protection of their plants. The Commission selected the ten facilities because they had already submitted Section 161A applications to the NRC or because the facilities are in states with strict gun control laws that have been brought to the Commission’s attention. The 5 June designation order is a necessary step to granting Section 161A authority.

Obtaining the authority would make clear that an NRC licensee’s security personnel are authorized by law to possess weapons needed at their facilities, despite any contrary state, local, or federal firearms laws. Most of the ten facilities are nuclear power plants and the facilities are located in New York, Maryland, Virginia, and California. Submitting an application for Section 161A preemption authority is voluntary, but the operators of all ten facilities covered by the 5 June order are required to conduct FBI background checks of their armed security personnel.

A rulemaking to implement Section 161A through the NRC regulations has been ongoing for several years and is unlikely to be complete before Spring 2014. Until the final rule is promulgated, the NRC has indicated that it will use orders to designate facilities as eligible to apply for preemption authority. Given the sweeping gun control laws being implemented across the country that on their face may be at odds with NRC-approved security plans, NRC licensees, particularly nuclear power plants, may want to apply for Section 161A preemption authority to receive express preemption authority for certain weapons in use at their facilities.