[Federal Register Volume 72, Number 22 (Friday, February 2, 2007)]
[Rules and Regulations]
[Pages 4945-4948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1730]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
RIN AI04
Relief From Fingerprinting and Criminal History Records Checks
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is
issuing new regulations to relieve certain categories of individuals
from the requirement to undergo fingerprinting, identification, and
criminal history records checks under section 149 of the Atomic Energy
Act of 1954, as amended, (AEA) before being permitted unescorted access
to radioactive materials or other property subject to regulation by the
Commission that the Commission determines to be of such significance to
the public health and safety or the common defense and security as to
warrant such checks.
DATES: This final rule is effective on February 2, 2007.
FOR FURTHER INFORMATION CONTACT: Jared K. Heck, Attorney, Office of the
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-1623, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Need for Rule
III. Analysis of Rule
IV. Basis for Immediate Effectiveness and Dispensing With Notice and
Comment
V. Voluntary Consensus Standards
VI. Finding of No Significant Impact: Availability
VII. Paperwork Reduction Act Statement
VIII. Regulatory Analysis
IX. Backfit Analysis
X. Congressional Review Act
I. Background
On August 8, 2005, Congress enacted legislation that authorized the
Commission to impose new requirements governing unescorted access to
certain radioactive material and other property subject to regulation
by the Commission. Specifically, section 652 of the Energy Policy Act
of 2005, Pub. L. 109-58, which amended AEA section 149, requires the
Commission to ensure that ``any individual'' who is permitted
unescorted access to ``radioactive material or other property subject
to regulation by the Commission that the Commission determines to be of
such significance to the public health and safety or the common defense
and
[[Page 4946]]
security as to warrant fingerprinting and background checks'' be
fingerprinted ``for identification and a criminal history records
check'' by the Attorney General. Previously, AEA section 149 only
required fingerprinting and criminal history records checks of
individuals permitted unescorted access to a ``utilization facility.''
On October 17, 2006, the NRC issued a series of Orders to certain
radioactive materials licensees that implemented in part the provisions
of the amended AEA section 149.\1\ Those Orders applied to large
panoramic irradiator licensees, manufacturers and distributors of
radioactive material, and certain other licensees who ship radioactive
material in quantities of concern. As stated in the Orders, those
licensees possess material the NRC has determined to be of such
significance to the public health and safety and the common defense and
security that fingerprinting, identification, and criminal history
records checks of individuals permitted unescorted access to that
material is warranted.
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\1\ See In the Matter of Holders of Materials Licenses
Authorized to Use Sealed Sources in Panoramic and Underwater
Irradiators and Possess Greater Than 370 Terabecquerels (10,000
Curies), Order EA-06-248 (October 17, 2006); In the Matter of
Certain Licensees Authorized to Possess and Transfer Items
Containing Radioactive Material Quantities of Concern, Order EA-06-
249 (October 17, 2006); In the Matter of Holders of Materials
Licenses Authorized to Manufacture or Distribute Items Containing
Radioactive Material of Concern, Order EA-06-250 (October 17, 2006).
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Under AEA section 149.b., the NRC may by rule relieve individuals
from the fingerprinting, identification and criminal history records
check requirements imposed by the Orders if it finds that such action
is ``consistent with its obligations to promote the common defense and
security and to protect the health and safety of the public.''
Currently, the NRC has no rule that would relieve individuals who are
permitted unescorted access to the radioactive materials described in
the Orders from the subject requirements of AEA section 149.a. This
final rule will provide that relief for certain categories of
individuals to whom licensees may wish to permit unescorted access.
This final rule does not authorize unescorted access to any
radioactive materials or other property subject to regulation by the
Commission. Rather, the rule makes clear that a licensee may permit
unescorted access to certain categories of individuals otherwise
qualified for access without first obtaining fingerprints or performing
an identification and criminal history check. Licensees must decide
whether to grant or deny an individual unescorted access independently
of this final rule according to other NRC requirements governing
unescorted access.\2\
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\2\ See, e.g., In the Matter of All Panoramic and Underwater
Irradiators Authorized to Possess Greater than 370 TerraBecquerels
(10,000 Curies) of Byproduct Material in the Form of Sealed Sources;
Order Imposing Compensatory Measures (Effective Immediately), 68 FR
35458 (June 13, 2003); In the Matter of all Licensees Authorized to
Manufacture or Initially Transfer Items Containing Radioactive
Material for Sale or Distribution and Possess Certain Radioactive
Material of Concern and All Other Persons Who Obtain Safeguards
Information Described Herein; Order Imposing Additional Security
Measures (Effective Immediately), 69 FR 5375 (February 4, 2004).
These Orders imposed limitations on unescorted access to certain
radioactive materials. The particulars of the access limitations
imposed by the Orders are Safeguards Information and are not
publicly available.
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This final rule supersedes in part the Orders previously described.
Condition III.B. of those Orders states in part that ``[f]ingerprinting
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 [Safeguards Information].'' That passage of Condition III.B.
is ineffective because under AEA section 149.b., such relief can only
be provided by rule. Accordingly, the quoted passage in Condition
III.B. is hereby rescinded for good cause.\3\ The remaining language in
Condition III.B. of the Orders remains effective.
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\3\ The NRC Orders issued on October 17, 2006, provide that the
Director of the Office of Federal and State Materials and
Environmental Management Programs may rescind any condition of the
Orders for good cause. Under NRC rules at 10 CFR 1.32(c), the
Executive Director for Operations, who has been delegated authority
to issue this final rule on behalf of the Commission, may exercise
the same authority.
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II. Need for Rule
The individuals relieved from fingerprinting, identification, and
criminal history checks under this final rule include Federal, State,
and local officials involved in security planning and incident
response, Agreement State employees who evaluate licensee compliance
with security-related orders, and other government officials who may
need unescorted access to radioactive materials or other property
subject to regulation by the Commission as part of their oversight
function. The categories of individuals relieved by this final rule are
the same as those previously relieved in an earlier rulemaking from
fingerprinting and criminal history records check requirements
applicable to Safeguards Information access.\4\ As was the case in that
earlier rulemaking, relief is needed in this context to ensure that a
range of inspection, enforcement, planning, oversight, and response
functions related to the security of nuclear materials continues
uninterrupted during routine and emergency conditions. Accordingly,
this final rule is consistent with the Commission's obligations to
promote the common defense and security and to protect the health and
safety of the public.
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\4\ See Final Rule, ``Relief from Fingerprinting and Criminal
History Records Check for Designated Categories of Individuals,'' 71
FR 33989 (June 13, 2006).
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III. Analysis of Rule
This final rule provides relief from the fingerprinting and
criminal history records check requirements set forth in AEA section
149 for the following categories of individuals:
(1) An employee of the Commission or of the Executive Branch of the
U.S. Government who has undergone fingerprinting for a prior U.S.
Government criminal history check;
(2) A member of Congress;
(3) An employee of a member of Congress or Congressional committee
who has undergone fingerprinting for a prior U.S. Government criminal
history check;
(4) The Governor of a State or his or her designated State employee
representative;
(5) Federal, State, or local law enforcement personnel;
(6) State Radiation Control Program Directors and State Homeland
Security Advisors or their designated State employee representatives;
(7) Agreement State employees conducting security inspections on
behalf of the NRC pursuant to an agreement executed under section
274.i. of the AEA;
(8) Representatives of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who have been certified by the NRC.
The individuals described above are considered trustworthy and
reliable by virtue of their occupational status and have either already
undergone a background or criminal history check as a condition of
their employment, or are subject to direct oversight by government
authorities in their day-to-day job functions. Under this final rule,
if an individual in one of the categories described above needs
unescorted access to radioactive material or other property subject to
regulation by the Commission to perform a job function, and the
Commission has determined
[[Page 4947]]
that the material or property in question is of such significance to
the public health and safety or the common defense and security as to
warrant fingerprinting and background checks, then the individual may
be permitted unescorted access without being fingerprinted or
undergoing an identification and criminal history records check,
provided the individual is otherwise qualified for unescorted access
under other NRC regulations and orders.
IV. Basis for Immediate Effectiveness and Dispensing With Notice and
Comment
Generally, the NRC issues final rules using the public notice and
comment procedures set forth in the Administrative Procedure Act (APA).
But under 5 U.S.C. 553, the NRC may dispense with those procedures
where it finds for ``good cause'' that public procedures are
``impracticable, unnecessary, or contrary to the public interest.'' In
this case, notice-and-comment procedures are not required because the
usual public rulemaking procedures are impracticable.
The individuals described in Section II of this document may under
some circumstances need unescorted access to radioactive materials to
ensure that a range of inspection, enforcement, planning, oversight,
and response functions related to the security of nuclear materials
continues uninterrupted during routine and emergency conditions. The
only way to ensure that government personnel may be permitted
unescorted access to radioactive materials or other property subject to
regulation by the Commission without first subjecting them to
unnecessary fingerprinting and criminal history records checks is to
issue a final rule relieving those individuals from such checks.
Delaying issuance of the final rule until after notice and comment
would interfere with the ability of licensees to provide unescorted
access to trustworthy and reliable government officials who may need it
to perform their job functions in the interim. Therefore, under 5
U.S.C. 553, good cause exists to dispense with notice and comment
procedures.
The Commission plans to publish a more comprehensive proposed rule
governing requirements for unescorted access to radioactive materials
and other property subject to regulation by the Commission that 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. At that time, the public will be
able to comment on whether any additional categories of individuals
should be relieved from the fingerprinting and criminal history check
requirements of AEA section 149.
Finally, this rule is immediately effective upon publication in
accordance with 5 U.S.C. 553(d)(1) because it is a substantive rule
which grants an exemption or relieves a restriction. Specifically, the
rule relieves certain individuals from the fingerprinting and criminal
history records check requirements of AEA section 149.
V. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using such a standard is inconsistent with applicable law or is
otherwise impractical. In this final rule, the NRC is granting relief
from criminal history checks, including fingerprinting, for access to
certain radioactive material and other property subject to regulation
by the Commission by persons in certain occupational categories. This
action does not involve the establishment of a standard that contains
generally applicable requirements.
VI. Finding of No Significant Impact: Availability
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
Subpart A of 10 CFR part 51, that this final rule is not a major
Federal action significantly affecting the quality of the human
environment and, therefore, an environmental impact statement is not
required. As permitted by section 149.b. of the AEA, as amended, this
rulemaking relieves individuals in certain occupational categories from
the criminal history records check and fingerprinting requirements
imposed by the Energy Policy Act of 2005. The final rule does not
require individuals to take action that would have an environmental
impact. A copy of the environmental assessment supporting this finding
is available at http://www.nrc.gov/reading-rm/pdr.html.
VII. Paperwork Reduction Act Statement
This final rule contains no information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
VIII. Regulatory Analysis
A regulatory analysis has not been prepared for this regulation
because it relieves restrictions and does not impose regulatory burdens
on licensees.
IX. Backfit Analysis
No backfit analysis is required because the final rule does not
modify or add to systems, structures, components, or the design of a
facility, or the design approval or manufacturing license for a
facility, or the procedures or organization required to design,
construct, or operate a facility. Therefore, the final rule does not
impose a backfit as defined in 10 CFR 50.109(a)(1).
X. Congressional Review Act
This final rule does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et. seq.). Existing requirements were approved by the
Office of Management and Budget, approval number 3150-0002.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
List of Subjects in 10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
0
For the reasons stated in the preamble, and under the authority of the
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of
1974, as amended; the Energy Policy Act of 2005, and 5 U.S.C. 552 and
553, the NRC is adopting the following amendments to 10 CFR part 73.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
0
1. The authority citation for part 73 is revised to read as follows:
Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended,
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201,
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy
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Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
0
2. A new Sec. 73.61 is added before the undesignated center heading
``Physical Protection of Special Nuclear Material of Moderate and Low
Strategic Significance,'' to read as follows:
Sec. 73.61. Relief from fingerprinting and criminal history records
check for designated categories of individuals permitted unescorted
access to certain radioactive materials or other property.
Notwithstanding any other provision of the Commission's
regulations, fingerprinting and the identification and criminal history
records checks required by section 149 of the Atomic Energy Act of
1954, as amended, are not required for the following individuals prior
to granting unescorted access to radioactive materials or other
property that the Commission determines by regulation or order to be of
such significance to the public health and safety or the common defense
and security as to warrant fingerprinting and background checks:
(a) An employee of the Commission or of the Executive Branch of the
U.S. Government who has undergone fingerprinting for a prior U.S.
Government criminal history check;
(b) A Member of Congress;
(c) An employee of a member of Congress or Congressional committee
who has undergone fingerprinting for a prior U.S. Government criminal
history check;
(d) The Governor of a State or his or her designated State employee
representative;
(e) Federal, State, or local law enforcement personnel;
(f) State Radiation Control Program Directors and State Homeland
Security Advisors or their designated State employee representatives;
(g) Agreement State employees conducting security inspections on
behalf of the NRC pursuant to an agreement executed under section
274.i. of the Atomic Energy Act;
(h) Representatives of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who have been certified by the NRC.
Dated at Rockville, Maryland, this 22nd day of January, 2007.
For the Nuclear Regulatory Commission.
Luis A. Reyes,
Executive Director for Operations.
[FR Doc. E7-1730 Filed 2-1-07; 8:45 am]
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