[Federal Register Volume 72, Number 86 (Friday, May 4, 2007)]
[Notices]
[Pages 25337-25339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2207]


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NUCLEAR REGULATORY COMMISSION

[EA-07-074]


In the Matter of All Research and Test Reactor Licensees 
Identified in Attachment 1; Order Imposing Fingerprinting and Criminal 
History Records Check Requirements for Unescorted Access to All 
Research and Test Reactor Licensees Identified in Attachment 1 
(Effective Immediately)

I

    The Licensees identified in Attachment 1 \1\ to this Order hold 
licenses as research and test reactors (RTRs) issued in accordance with 
the Atomic Energy Act (AEA) of 1954, as amended, by the U.S. Nuclear 
Regulatory Commission (NRC or Commission). 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 a 
utilization facility, which includes the RTRs listed in Attachment 1 to 
this Order.
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    \1\ Attachment 1 contains sensitive information and will not be 
released to the public.
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II

    Prior to September 11, 2001, the Commission established physical 
protection requirements applicable to RTRs, which included storing and 
using the special nuclear material in controlled access areas, 
monitoring the controlled access areas for unauthorized activities, and 
ensuring a response to all unauthorized activities.
    Subsequent to the terrorist events of September 11, 2001, the NRC 
took various actions to ensure the acceptability of individuals for 
unescorted access to RTRs. RTRs were advised to consider taking 
additional precautions including observation of activities within their 
facility, and licensee precautions were evaluated at specific RTR sites 
in the remainder of 2001. From 2002 through 2004, RTRs implemented 
compensatory measures (CMs), which included site-specific background 
investigations or checks. Additionally, in January 2003, NRC sent the 
names of and information on all individuals with unescorted access at 
RTRs to U.S. intelligence agencies for review. This review found no 
issues. Individuals with unescorted access since January 2003 have 
undergone site-specific background investigations or checks, which were 
implemented as part of CMs implemented at RTRs in response to NRC 
initiatives.
    The RTR site-specific background investigations and checks were 
established using a graded approach, considering the specific 
configuration, uses and radiological risk of each facility, to provide 
acceptable protection of the nuclear material and any associated 
radioactive materials. The background investigations and checks at a 
minimum verify identity, nationality, immigration status (if 
applicable), and determine whether the individual demonstrates a 
pattern of trustworthy and reliable behavior through facility-specific 
verification of various aspects of a person's background. These 
verifications include consideration of educational, military, 
employment and criminal histories. With regard to criminal history, 
some of the RTR facilities use FBI fingerprint-based criminal history 
records checks, while others use either State fingerprint-based 
criminal history records checks or criminal history records checks 
which do not include fingerprints. These background investigations or 
checks, through a combination of various elements, have provided 
additional assurance for the protection of the specific facility from 
potential radiological risk from insider threats.
    Further, RTRs are required by Orders dated September 29, 2006, to 
have FBI fingerprint-based identification and criminal history records 
checks for persons allowed access to Safeguards Information.\2\ These 
individuals are those who are allowed access to the details of security 
plans or procedures at the specific facility and, therefore, have 
actual knowledge and ability to affect the facility security. 
Therefore, those Orders provide additional assurance that security 
information and associated RTRs facilities are adequately protected.
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    \2\ ``Order Imposing Fingerprinting and Criminal History Records 
Check Requirements for Access to Safeguards Information (Effective 
Immediately),'' (EA-06-203) dated September 29, 2006, (71 FR 59140, 
Oct. 6, 2006) (ML061510049).
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    Previously, AEA Section 149 only required fingerprinting and 
criminal history records checks of persons

[[Page 25338]]

seeking unescorted access to facilities licensed under Sections 103 and 
104b of the AEA, e.g., power reactors. Power reactors are required by 
10 CFR 73.57 to have fingerprint-based criminal history records checks 
performed as part of granting unescorted access to the facility. RTRs 
have not been subject to this requirement, and have only been required 
to control access to authorized persons and screen those persons for 
access in accordance with their security plans or procedures.
    Congress left intact the Commission's authority to relieve persons 
by rule from the fingerprinting, identification, and criminal history 
records check requirements of AEA Section 149 ``if the Commission 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.'' \3\ Currently, the NRC has no rule that would provide relief 
from or require the implementation of AEA section 149 for 
fingerprinting for unescorted access to RTRs.
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    \3\ AEA Sec.  149.b.
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    The NRC is planning a rulemaking to reexamine the extent of 
fingerprint-based criminal history records checks for unescorted access 
to RTRs that it finds to be necessary to ensure adequate protection of 
the public health and safety and common defense and security. In the 
interim, the NRC has decided to implement this requirement, in part, 
prior to the completion of the rulemaking to provide acceptable, 
additional assurance that an individual with unescorted access to a RTR 
facility will not adversely impact the common defense and security or 
the public health and safety. 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. These requirements will 
remain in effect until the Commission determines otherwise.
    The AEA requires fingerprint-based criminal history records checks 
at utilization facilities. Section 11cc of The AEA defines utilization 
facility as
    (1) any equipment or device, except an atomic weapon, determined by 
rule of the Commission to be capable of making use of special nuclear 
material in such quantity as to be of significance to the common 
defense and security, or in such manner as to affect the health and 
safety of the public, or peculiarly adapted for making use of atomic 
energy in such quantity as to be of significance to the common defense 
and security, or in such manner as to affect the health and safety of 
the public; or
    (2) any important component part especially designed for such 
equipment or device as determined by the Commission.
    The Commission's rules, in 10 CFR 50.2, define a ``[u]tilization 
facility'' as ``any nuclear reactor other than one designed or used 
primarily for the formation of plutonium or U-233.'' Further, ``Nuclear 
reactor'' is defined as ``an apparatus, other than an atomic weapon, 
designed or used to sustain nuclear fission in a self-supporting chain 
reaction.'' These definitions include the RTRs listed in Attachment 1.
    For purposes of this Order, an individual who is granted 
``unescorted access'' could exercise physical control over the special 
nuclear material possessed by the licensee, which would be of 
significance to the common defense and security or would adversely 
affect the health and safety of the public, such that the special 
nuclear material could be used or removed in an unauthorized manner 
without detection, assessment, or response by systems or persons 
designated to detect, assess or respond to such unauthorized use or 
removal. At RTRs, such individuals include those with the capability 
and knowledge to use the special nuclear material in the utilization 
facility or remove the special nuclear material from the utilization 
facility in an unauthorized manner without detection, assessment and 
response by the physical protection system or related provisions or 
persons.
    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 53, 104, 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 50 and 10 CFR Part 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 for unescorted 
access that meets the requirements of Attachment 2 to this Order.
    2. The Licensee shall, in writing, within twenty (20) days of the 
date of this Order, notify the Commission (1) of 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 Records Check Requirements for Access to Safeguards 
Information (Effective Immediately)'' (EA-06-203) issued on September 
29, 2006, (71 FR 59140, October 6, 2006), only the NRC-approved 
reviewing official shall review results from a FBI criminal history 
records check. In accordance with all other applicable requirements and 
the evaluation of the results of the FBI criminal history records check 
as specified in this Order, the reviewing official shall determine 
whether an individual may have, or continue to have, unescorted access. 
No person may have access to Safeguards Information or unescorted 
access to any utilization facility, or radioactive material or property 
subject to regulation by the NRC if the NRC has determined, in 
accordance with its administrative review process based on 
fingerprinting and an FBI identification and criminal history records 
check, either that the person may not have access to SGI or that the 
person may not have unescorted access to a utilization facility, or 
radioactive material or property subject to regulation by the NRC.
    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 NRC-approved 
reviewing official in accordance with EA-06-203 (September 29, 2006), 
do not need to be fingerprinted again for purposes of authorizing 
unescorted access. In addition, individuals who have a favorably 
decided U.S. Government criminal history records check within the last 
five (5) years, or who have an active Federal security clearance have 
satisfied the EPAct fingerprinting requirement and need not be

[[Page 25339]]

fingerprinted again, provided in each case that the appropriate 
documentation is made available to the Licensee's reviewing official. 
However, all other applicable requirements must be satisfied to allow 
any individual unescorted access to the facility.
    D. The Licensee may allow any individual who currently has 
unescorted access, in accordance with applicable requirements, to 
continue to have unescorted access, pending a decision by the reviewing 
official (based on fingerprinting and a FBI criminal history records 
check) that the individual may continue to have unescorted access. The 
licensee shall complete implementation of the requirements of 
Attachment 2 to this Order by July 30, 2007.
    Licensee responses to Condition A.2. shall be submitted to the 
Director, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555.
    The Director, Office of Nuclear Reactor Regulation, 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 Nuclear Reactor 
Regulation, 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 Nuclear Reactor Regulation, 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 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 30th day of April 2007.
    For the Nuclear Regulatory Commission.
James T. Wiggins,
Acting Director, Office of Nuclear Reactor Regulation.
[FR Doc. 07-2207 Filed 5-3-07; 8:45 am]
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