[Federal Register Volume 71, Number 205 (Tuesday, October 24, 2006)]
[Notices]
[Pages 62302-62305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17762]
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NUCLEAR REGULATORY COMMISSION
[EA-06-249]
In the Matter of Certain Licensees Authorized To Possess and
Transfer Items Containing Radioactive Material Quantities of Concern;
Order Imposing Fingerprinting and Criminal History Records Check
Requirements for Unescorted Access to Certain Radioactive Materials and
Modification of the Additional Security Measures (Effective
Immediately)
I
The Licensees identified in Attachment 1 \1\ to this Order hold
licenses issued in accordance with the Atomic Energy Act (AEA) of 1954,
as amended, by the U.S. Nuclear Regulatory Commission (NRC or
Commission) or Agreement States, authorizing them to possess and
transfer items containing radioactive materials in quantities of
concern. On August 8, 2005, the Energy Policy Act of 2005 (EPAct) was
enacted. Section 652 of the EPAct amended section 149 of the AEA to
require fingerprinting and a Federal Bureau of Investigation (FBI)
identification and criminal history records check of any person who is
permitted unescorted access to radioactive materials subject to
regulation by the Commission, and which the Commission determines to be
of such significance to the public health and safety or the common
defense and security as to warrant fingerprinting and background
checks. NRC has decided to implement this requirement, in part, prior
to the completion of the rulemaking to implement the provisions under
the EPAct, which is underway, because a deliberate malevolent act by an
individual with unescorted access to these radioactive materials has a
potential to result in significant adverse impacts to the public health
and safety or the common defense and security. Those exempted from
fingerprinting requirements under 10 CFR 73.59 (71 FR 33,989 (June 13,
2006)) for access to Safeguards Information \2\ (SGI) are also exempt
from the fingerprinting requirements under this Order. In addition,
individuals who have a favorably-decided U.S. Government criminal
history record check within the last five (5) years, or individuals who
have an active federal security clearance (provided in each case that
they make available the appropriate documentation), have satisfied the
EPAct fingerprinting requirement and need not be fingerprinted again.
Individuals who have been fingerprinted and granted access to SGI by
the reviewing official under EA-06-155 do not need to be fingerprinted
again.
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\1\ Attachment 1 contains sensitive information and will not be
released to the public.
\2\ Safeguards Information is a form of sensitive, unclassified,
security-related information that the Commission has the authority
to designate and protect under section 147 of the AEA.
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II
Subsequent to the terrorist events of September 11, 2001, the NRC
issued a security Order requiring certain Licensees who may transport
radioactive material quantities of concern to implement Additional
Security Measures (ASMs) for radioactive materials. The requirements
imposed by that Order (RAMQC Order), and certain measures licensees
have developed to comply with that Order, were designated by the NRC as
SGI and were not released to the public. One specific ASM imposed by
the RAMQC Order required licensees to conduct local background checks
to determine the trustworthiness and reliability of individuals needing
unescorted access to radioactive materials. ``Access'' to these
radioactive materials means that an individual could exercise some
physical control over the material or device. At that time, the NRC did
not
[[Page 62303]]
have the authority, except in the case of power reactor licensees, to
require licensees to submit fingerprints for an FBI criminal history
records checks of individuals being considered for unescorted access to
radioactive materials subject to NRC regulations. Therefore, in
accordance with section 149 of the AEA, as amended by the EPAct, the
Commission is imposing the FBI criminal history records check
requirements, as set forth in this Order, including Attachment 2 to
this Order, on all Licensees identified in Attachment 1 to this Order,
which are currently authorized to possess or transfer items containing
radioactive materials quantities of concern. These requirements will
remain in effect until the Commission determines otherwise.
In addition, pursuant to 10 CFR 2.202, I find that in light of the
common defense and security matters identified above, which warrant the
issuance of this Order, the public health, safety, and interest require
that this Order be effective immediately.
III
Accordingly, pursuant to Sections 81, 149, 161b, 161i, 161o, 182,
and 186 of the AEA of 1954, as amended, and the Commission's
regulations in 10 CFR 2.202, 10 CFR Parts 30 and 73, It Is Hereby
Ordered, Effective Immediately, That All Licensees Identified in
Attachment 1 to This Order Shall Comply With the Requirements Set Forth
in This Order.
A. All licensees identified in Attachment 1 to this Order shall
comply with the following requirements:
1. The Licensee shall, within twenty (20) days of the date of this
Order, establish and maintain a fingerprinting program that meet the
requirements of Attachment 2 to this Order, for unescorted access to
radioactive materials that equal or exceed the quantities listed in
Table 1 of the RAMQC Order.
2. The Licensee shall, in writing, within twenty (20) days of the
date of this Order, notify, the Commission (1) receipt and confirmation
that compliance with the Order will be achieved or (2) if it is unable
to comply with any of the requirements described in Attachment 2, or
(3) if compliance with any of the requirements is unnecessary in its
specific circumstances. The notification shall provide the Licensee's
justification for seeking relief from or variation of any specific
requirement.
B. In accordance with the NRC's ``Order Imposing Fingerprinting and
Criminal History Check Requirements for Access to Safeguards
Information'' (EA-06-155), issued on August 21, 2006, only the NRC-
approved reviewing official shall review results from an FBI criminal
history records check. The reviewing official shall determine whether
an individual may have, or continue to have, unescorted access to
radioactive materials that equal or exceed the quantities listed in the
RAMQC Order. Fingerprinting and the FBI identification and criminal
history records check are not required for individuals that are
exempted from fingerprinting requirements under 10 CFR 73.59 (71 FR
33,989 (June 13, 2006)) for access to SGI. In addition, individuals who
have a favorably decided U.S. Government criminal history records check
within the last five (5) years, or have an active federal security
clearance provided in each case that the appropriate documentation is
made available to the Licensee's reviewing official, have satisfied the
EPAct fingerprinting requirement and need not be fingerprinted again.
C. Fingerprints shall be submitted and reviewed in accordance with
the procedures described in Attachment 2 to this Order. Individuals who
have been fingerprinted and granted access to SGI by the reviewing
official under Order EA-06-155 do not need to be fingerprinted again.
D. The Licensee may allow any individual who currently has
unescorted access to radioactive materials, in accordance with the
RAMQC Order, to continue to have unescorted access without being
fingerprinted, pending a decision by the reviewing official (based on
fingerprinting, an FBI criminal history records check and a trustworthy
and reliability determination) that the individual may continue to have
unescorted access to radioactive materials that equal or exceed the
quantities listed in the RAMQC Order. The licensee shall complete
implementation of the requirements of Attachment 2 to this Order by
January 15, 2007.
E. The ASMs of the RAMQC Order are modified as follows:
1. The requirement for a local criminal history check in ASM
2.d.(1) is superseded by the FBI criminal history records check. All
other requirements in ASM 2.d.(1) are still applicable.
Licensee responses to Condition A.2. shall be submitted to the
Director, Office of Federal and State Materials and Environmental
Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC
20555. In addition, Licensee responses shall be marked as ``Security-
Related Information--Withhold Under 10 CFR 2.390.''
The Director, Office of Federal and State Materials and
Environmental Management Programs, may, in writing, relax or rescind
any of the above conditions upon demonstration of good cause by the
Licensee.
IV
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order, and may request a hearing on this Order, within twenty (20) days
of the date of this Order. Where good cause is shown, consideration
will be given to extending the time to request a hearing. A request for
extension of time in which to submit an answer or request a hearing
must be made in writing to the Director, Office of Federal and State
Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, and include a statement of
good cause for the extension. The answer may consent to this Order.
Unless the answer consents to this Order, the answer shall, in writing
and under oath or affirmation, specifically set forth the matters of
fact and law on which the Licensee or other person adversely affected
relies and the reasons as to why the Order should not have been issued.
Any answer or request for a hearing shall be submitted to the
Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission,
ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies
also shall be sent to the Director, Office of Federal and State
Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, to the Assistant General
Counsel for Material Litigation and Enforcement at the same address,
and to the Licensee if the answer or hearing request is by a person
other than the Licensee. Because of possible delays in delivery of mail
to United States Government offices, it is requested that answers and
requests for hearing be transmitted to the Secretary of the Commission
either by means of facsimile transmission to (301) 415-1101 or by e-
mail to [email protected] and also to the Office of the General
Counsel either by means of facsimile transmission to (301) 415-3725 or
by e-mail to [email protected]. If a person other than the Licensee
requests a hearing, that person shall set forth with particularity the
manner in which his/her interest is adversely affected by this Order
and shall address the criteria set forth in 10 CFR 2.309.
If a hearing is requested by the Licensee or a person whose
interest is
[[Page 62304]]
adversely affected, the Commission will issue an Order designating the
time and place of any hearing. If a hearing is held, the issue to be
considered at such hearing shall be whether this Order should be
sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to
demanding a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error. In the absence of any request for
hearing, or written approval of an extension of time in which to
request a hearing, the provisions as specified above in Section III
shall be final twenty (20) days from the date of this Order without
further Order or proceedings.
If an extension of time for requesting a hearing has been approved,
the provisions as specified above in Section III shall be final when
the extension expires, if a hearing request has not been received. An
answer or a request for hearing shall not stay the immediate
effectiveness of this order.
Dated this 17th day of October 2006.
For the Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials and Environmental
Management Programs.
Attachment 1--List of Applicable Materials Licensees
Redacted
Attachment 2--Requirements for Fingerprinting and Criminal History
Checks of Individuals When Licensee's Reviewing Official Is Determining
Unescorted Access to Radioactive Materials Subject to EA-06-249
General Requirements
Licensees shall comply with the following requirements of this
attachment.
1. Each Licensee subject to the provisions of this attachment
shall fingerprint each individual who is seeking or permitted
unescorted access to RAMQC. The Licensee shall review and use the
information received from the Federal Bureau of Investigation (FBI)
and ensure that the provisions contained in the subject Order and
this attachment are satisfied.
2. The Licensee shall notify each affected individual that the
fingerprints will be used to secure a review of his/her criminal
history record and inform the individual of the procedures for
revising the record or including an explanation in the record, as
specified in the ``Right to Correct and Complete Information''
section of this attachment.
3. Fingerprints for unescorted access need not be taken if an
employed individual (e.g., a Licensee employee, contractor,
manufacturer, or supplier) is relieved from the fingerprinting
requirement by 10 CFR 73.59 for access to Safeguards Information,
has a favorably-decided U.S. Government criminal history check
within the last five (5) years, or has an active federal security
clearance. Written confirmation from the Agency/employer which
granted the federal security clearance or reviewed the criminal
history check must be provided for wither of the latter two cases.
The Licensee must retain this documentation for a period of three
(3) years from the date the individual no longer requires unescorted
access to radioactive materials associated with the Licensee's
activities.
4. All fingerprints obtained by the Licensee pursuant to this
Order must be submitted to the Commission for transmission to the
FBI.
5. The Licensee shall review the information received from the
FBI and consider it, in conjunction with the trustworthy and
reliability requirements of the RAMQC Order, in making a
determination whether to grant, or continue to allow, unescorted
access to radioactive materials.
6. The Licensee shall use any information obtained as part of a
criminal history records check solely for the purpose of determining
an individual's suitability for unescorted access to RAMQC.
7. The Licensee shall document the basis for its determination
whether to grant, or continue to allow, unescorted access to RAMQC.
Prohibitions
A Licensee shall not base a final determination to deny an
individual access to radioactive materials solely on the basis of
information received from the FBI involving: an arrest more than one
(1) year old for which there is no information of the disposition of
the case, or an arrest that resulted in dismissal of the charge or
an acquittal.
A Licensee shall not use information received from a criminal
history check obtained pursuant to this Order in a manner that would
infringe upon the rights of any individual under the First Amendment
to the Constitution of the United States, nor shall the Licensee use
the information in any way which would discriminate among
individuals on the basis of race, religion, national origin, sex, or
age.
Procedures for Processing Fingerprint Checks
For the purpose of complying with this Order, Licensees shall,
using an appropriate method listed in 10 CFR 73.4, submit to the
NRC's Division of Facilities and Security, Mail Stop T-6E46, one
completed, legible standard fingerprint card (Form FD-258,
ORIMDNRCOOOZ) or, where practicable, other fingerprint records for
each individual seeking unescorted access to RAMQC, to the Director
of the Division of Facilities and Security, marked for the attention
of the Division's Criminal History Check Section. Copies of these
forms may be obtained by writing the Office of Information Services,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by
calling (301) 415-5877, or by e-mail to [email protected]. Practicable
alternative formats are set forth in 10 CFR 73.4. The Licensee shall
establish procedures to ensure that the quality of the fingerprints
taken results in minimizing the rejection rate of fingerprint cards
due to illegible or incomplete cards.
The NRC will review submitted fingerprint cards for
completeness. Any Form FD-258 fingerprint record containing
omissions or evident errors will be returned to the Licensee for
corrections. The fee for processing fingerprint checks includes one
re-submission if the initial submission is returned by the FBI
because the fingerprint impressions cannot be classified. The one
free re-submission must have the FBI Transaction Control Number
reflected on the re-submission. If additional submissions are
necessary, they will be treated as initial submittals and will
require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application.
Licensees shall submit payment with the application for processing
fingerprints by corporate check, certified check, cashier's check,
money order, or electronic payment, made payable to ``U.S. NRC.''
[For guidance on making electronic payments, contact the Facilities
Security Branch, Division of Facilities and Security, at (301) 415-
7404]. Combined payment for multiple applications is acceptable. The
application fee (currently $27) is the sum of the user fee charged
by the FBI for each fingerprint card or other fingerprint record
submitted by the NRC on behalf of a Licensee, and an NRC processing
fee, which covers administrative costs associated with NRC handling
of Licensee fingerprint submissions. The Commission will directly
notify Licensees who are subject to this regulation of any fee
changes.
The Commission will forward to the submitting Licensee all data
received from the FBI as a result of the Licensee's application(s)
for criminal history checks, including the FBI fingerprint record.
Right To Correct and Complete Information
Prior to any final adverse determination, the Licensee shall
make available to the individual the contents of any criminal
records obtained from the FBI for the purpose of assuring correct
and complete information. Written confirmation by the individual of
receipt of this notification must be maintained by the Licensee for
a period of one (1) year from the date of the notification.
If, after reviewing the record, an individual believes that it
is incorrect or incomplete in any respect and wishes to change,
correct, or update the alleged deficiency, or to explain any matter
in the record, the individual may initiate challenge procedures.
These procedures include either direct application by the individual
challenging the record to the agency (i.e., law enforcement agency)
that contributed the questioned information, or direct challenge as
to the accuracy or completeness of any entry on the criminal history
record to the Assistant Director, Federal Bureau of Investigation
Identification Division, Washington, DC 20537-9700 (as set forth in
28 CFR 16.30 through 16.34). In the latter case, the FBI forwards
the challenge to
[[Page 62305]]
the agency that submitted the data and requests that agency to
verify or correct the challenged entry. Upon receipt of an official
communication directly from the agency that contributed the original
information, the FBI Identification Division makes any changes
necessary in accordance with the information supplied by that
agency. The Licensee must provide at least ten (10) days for an
individual to initiate an action challenging the results of an FBI
criminal history records check after the record is made available
for his/her review. The Licensee may make a final determination on
unescorted access RAMQC based upon the criminal history record only
upon receipt of the FBI's ultimate confirmation or correction of the
record. Upon a final adverse determination on unescorted access to
RAMQC, the Licensee shall provide the individual its documented
basis for denial. Unescorted access to RAMQC shall not be granted to
an individual during the review process.
Protection of Information
1. Each Licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a
system of files and procedures for protecting the record and the
personal information from unauthorized disclosure.
2. The Licensee may not disclose the record or personal
information collected and maintained to persons other than the
subject individual, his/her representative, or to those who have a
need to access the information in performing assigned duties in the
process of determining unescorted access to RAMQC. No individual
authorized to have access to the information may re-disseminate the
information to any other individual who does not have a need-to-
know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another Licensee
if the Licensee holding the criminal history record receives the
individual's written request to re-disseminate the information
contained in his/her file, and the gaining Licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics
for identification purposes.
4. The Licensee shall make criminal history records, obtained
under this section, available for examination by an authorized
representative of the NRC to determine compliance with the
regulations and laws.
5. The Licensee shall retain all fingerprint and criminal
history records received from the FBI, or a copy if the individual's
file has been transferred, for three (3) years after termination of
employment or denial to unescorted access to the panoramic or
underwater irradiator sealed sources. After the required three (3)
year period, these documents shall be destroyed by a method that
will prevent reconstruction of the information in whole or in part.
[FR Doc. E6-17762 Filed 10-23-06; 8:45 am]
BILLING CODE 7590-01-P