[Federal Register Volume 71, Number 208 (Friday, October 27, 2006)]
[Notices]
[Pages 63043-63046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18052]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[EA-06-248]


In the Matter of Holders of Material Licenses Authorized To Use 
Sealed Sources in Panoramic and Underwater Irradiators and Possess 
Greater Than 370 Terabecquerels (10,000 Curies); Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Unescorted Access to Certain Radioactive Material and Modification of 
the Compensatory 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 possession of greater than 
370 Terabecquerels (10,000 curies) of byproduct material, in the form 
of sealed sources, either in panoramic irradiators that have dry or wet 
storage of the sealed sources, or in underwater irradiators in which 
both the source and the product being irradiated are underwater. 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 Order EA-06-155 do not need to be 
fingerprinted again.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

II

    Subsequent to the terrorist events of September 11, 2001, the NRC 
issued a security Order requiring certain large panoramic and 
underwater irradiator licensees to implement Compensatory Measures 
(CMs) for radioactive materials. The requirements imposed by that Order 
(Irradiator Order), and 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 CM imposed by the Irradiator Order 
required licensees to conduct local criminal history checks to 
determine the trustworthiness and reliability of individuals needing 
unescorted access to the panoramic or underwater irradiator sealed 
sources. ``Access,'' means that an individual could exercise some 
physical control over the material or device. At that time, the NRC did 
not have the authority, except in the case of power reactor licensees, 
to require licensees to submit fingerprints for 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, 
that possess greater than 370 Terabecquerels (10,000 curies) of 
byproduct material in the form of sealed sources. These requirements 
will remain in effect until the Commission determines otherwise.
    In addition, pursuant to 10 CFR 2.202, 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 Part 30, and 10 CFR Part 36, 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 meets the 
requirements of Attachment 2 to this Order, for unescorted access to 
the panoramic or underwater irradiator sealed sources.
    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 the 
panoramic or underwater irradiator sealed sources that equal or exceed 
370 Terabecquerels (10,000 curies). Fingerprinting and the FBI 
identification and criminal history records check are not required for 
individuals 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

[[Page 63044]]

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 the panoramic or underwater irradiator sealed 
sources, in accordance with the Irradiator 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 the 
panoramic or underwater irradiator sealed sources. The licensee shall 
complete implementation of the requirements of Attachment 2 to this 
Order by January 15, 2007.
    E. The CMs of the Irradiator Order are modified as follows:
    1. The requirement for a local criminal history check in CM 2.A.ii. 
is superceded by the FBI criminal history records check. All other 
requirements in CM 2.A.ii 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 
20555-0001. 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 Materials 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 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 grounds 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 the Panoramic or Underwater Irradiator Sealed 
Sources Subject to EA-06-248

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 the panoramic or underwater irradiator sealed sources. 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 either of the latter

[[Page 63045]]

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 Irradiator 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 the panoramic or 
underwater irradiator sealed sources.
    7. The Licensee shall document the basis for its determination 
whether to grant, or continue to allow, unescorted access to the 
panoramic or underwater irradiator sealed sources.

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 the panoramic or underwater irradiator sealed 
sources, 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 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 to the 
panoramic or underwater irradiator sealed sources 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 the panoramic or underwater 
irradiator sealed sources, the Licensee shall provide the individual 
its documented basis for denial. Unescorted access to the panoramic or 
underwater irradiator sealed sources 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

[[Page 63046]]

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 the panoramic or underwater 
irradiator sealed sources. 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. E6-18052 Filed 10-26-06; 8:45 am]
BILLING CODE 7590-01-P