[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]


=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN AI04


Relief From Fingerprinting and Criminal History Records Checks

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

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

    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.
---------------------------------------------------------------------------

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

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.
---------------------------------------------------------------------------

    \4\ See Final Rule, ``Relief from Fingerprinting and Criminal 
History Records Check for Designated Categories of Individuals,'' 71 
FR 33989 (June 13, 2006).
---------------------------------------------------------------------------

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

[[Page 4948]]

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]
BILLING CODE 7590-01-P