[Federal Register Volume 72, Number 87 (Monday, May 7, 2007)]
[Notices]
[Pages 25792-25795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8762]
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NUCLEAR REGULATORY COMMISSION
[EA-07-087]
In the Matter of Certificate Holders and All Other Persons Who
Seek or Obtain Authorized Unescorted Access to Radioactive Material or
Other Property Described Herein; Order Imposing Fingerprinting and
Criminal History Records Check Requirements for Unescorted Access to
Certain Radioactive Material or Other Property (Effective Immediately)
I
The Certificate Holders identified in Attachment 1 to this Order
hold certificates issued in accordance with the Atomic Energy Act (AEA)
of 1954, as amended, by the U.S. Nuclear Regulatory Commission (NRC),
authorizing them to possess radioactive material. 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 individual who is permitted unescorted
access to radioactive material or other property 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. Though a
rulemaking to implement the fingerprinting provisions of the EPAct is
currently underway, the NRC has decided to implement this requirement,
in part, prior to the completion of the rulemaking, because a
deliberate malevolent act by an individual with unescorted access to
radioactive material or other property 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 73.61
[72 Federal Register 4945 (February 2, 2007)] are also exempt from the
fingerprinting requirements under this Order. In addition, individuals
who have had a favorably-decided U.S. Government criminal history
records check within the last five (5) years, or individuals who have
an active federal security clearance (provided in either case that they
make available the appropriate documentation), have satisfied the EPAct
fingerprinting requirement and need not be fingerprinted again.
Subsequent to the terrorist events of September 11, 2001, the NRC
issued security Orders requiring certain entities to implement
Additional Security Measures (ASMs) or Interim Compensatory Measures
(ICMs) for certain radioactive material. These Orders included a local
criminal history records check to determine trustworthiness and
reliability of individuals needing unescorted access to radioactive
material or other property. ``Access'' means that an individual could
exercise some physical control over the material or device. In
accordance with Section 149 of the AEA, as amended by the EPAct, the
Commission is imposing FBI criminal history records check requirements,
for all individuals allowed unescorted access to protected areas,
secure areas, and other areas, as applicable, as set forth in the
Order, for the Certificate Holders identified in Attachment 1 to this
Order. 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.
[[Page 25793]]
II
Accordingly, pursuant to Sections 53, 62, 63, 81, 147, 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 73 and 10 CFR
Part 76, it is hereby ordered, effective immediately, that all
certificate holders identified in attachment 1 and all other persons
who seek or obtain unescorted access to radioactive material or other
property described herein shall comply with the requirements set forth
in this Order.
A. All Certificate Holders identified in Attachment 1 to this Order
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 radioactive
material or other property.
B. All Certificate Holders identified in Attachment 1 to this Order
shall, within twenty (20) days of the date of this Order, submit the
fingerprints of one (1) Individual who: (1) The Certificate Holder
nominates as the ``reviewing official'' for determining unescorted
access to radioactive material or other property by other individuals;
and (2) has been determined to be trustworthy and reliable in
accordance with the requirements described in Attachment 3 to this
Order. The NRC will determine whether this individual (or any
subsequent reviewing official) may have unescorted access to
radioactive material or other property, and therefore, will be
permitted to serve as the Certificate Holder's reviewing official.\1\
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\1\ The NRC's determination of this individual's unescorted
access to radioactive material or other property, in accordance with
the process described in Enclosure 3 [available through NRC's
Agencywide Documents Access and Management System (ADAMS)] to the
transmittal letter of this Order, is an administrative determination
that is outside the scope of this Order.
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C. All Certificate Holders identified in Attachment 1 to this Order
shall, in writing, within twenty (20) days from the date of this Order,
notify the Commission: (1) Of receipt and confirmation that compliance
with the Order will be achieved, (2) if unable to comply with any of
the requirements described in Attachment 2, or (3) if compliance with
any of the requirements are unnecessary in its specific circumstances.
The notification shall provide the Certificate Holder's justification
for seeking relief from, or variation of, any specific requirement.
D. Only a NRC-approved reviewing official shall review the results
of a FBI criminal history records check. The reviewing official shall
determine whether an individual may have, or continue to have,
unescorted access to radioactive material or other property.
Fingerprinting and the FBI identification and criminal history records
check are not required for individuals that are exempted from
fingerprinting requirements under 10 CFR 73.61 [72 FR 4945 (February 2,
2007)]. In addition, individuals who have had 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
Certificate Holder's reviewing official), have satisfied the EPAct
fingerprinting requirement and need not be fingerprinted again.
E. Fingerprints shall be submitted and the results of the FBI
criminal history records check be reviewed in accordance with the
procedures described in Attachment 2 to this Order. No person may have
access to Safeguards Information or unescorted access to any
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
Safeguards Information or that the person may not have unescorted
access to radioactive material or property subject to regulation by
NRC.
F. The Certificate Holder may allow any individual who currently
has unescorted access to radioactive material or other property, in
accordance with the ASM or ICM Security Orders, to continue to have
unescorted access, pending a decision by the reviewing official (based
on fingerprinting, an FBI criminal history records check and a
trustworthiness and reliability determination) that the individual may
continue to have unescorted access to radioactive material or other
property. The Certificate Holder shall complete implementation of the
requirements of Attachment 2 to this Order within ninety (90) days from
the date of issuance of this Order.
Certificate Holder responses to Condition B. and C. shall be
submitted to the Director, Office of Nuclear Material Safety and
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
In addition, Certificate Holder responses shall be marked as
``Security-Related Information--Withhold Under 10 CFR 2.390.''
The Director, Office of Nuclear Material Safety and Safeguards,
may, in writing, relax or rescind any of the above conditions upon
demonstration of good cause by the Certificate Holder.
III
In accordance with 10 CFR 2.202, the Certificate Holder must, and
any other person adversely affected by this Order, may submit an answer
to this Order, and may request a hearing regarding this Order, within
twenty (20) days from 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 an extension of time in which to submit an
answer or request a hearing must be made in writing to the Director,
Office of Nuclear Material Safety and Safeguards, 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 for which the Certificate Holder 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 shall also be sent to the Director, Office of Nuclear
Material Safety and Safeguards, 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
Certificatee, if the answer or hearing request is by an individual
other than the Certificatee. 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 via 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 via e-mail to [email protected]. If a person other
than the Certificate Holder 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 Certificate Holder or an
individual whose interest is adversely affected, the
[[Page 25794]]
Commission will issue an Order designating the time and place of a
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 Certificate Holder may, in
addition to demanding a hearing, at the time the answer is filed, or
sooner, move that the presiding officer set aside the immediate
effectiveness of the Order on the 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 a hearing shall not stay the immediate
effectiveness of this order.
Dated this 30th day of April 2007.
For the Nuclear Regulatory Commission.
Michael F. Weber,
Director, Office of Nuclear Material, Safety and Safeguards.
Attachment 1--List of Applicable Certificate Holders
Certificate No. GDP-0001
Docket No.: 70-7001
USEC--Paducah
Certificate No. GDP-0002
Docket No.: 70-7002
USEC--Portsmouth
Attachment 2--Requirements for Fingerprinting and Criminal History
Records Checks of Individuals When Licensee's Reviewing Official Is
Determining Unescorted Access to Radioactive Material or Other Property
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 radioactive material or other property. 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 73.61 for unescorted access, has had a
favorably-decided U.S. Government criminal history records 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 records check must be provided. 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
material or other property 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's Reviewing Official shall review the
information received from the FBI and consider it, in conjunction
with the trustworthiness and reliability requirements established by
the previous ASM or ICM Security Orders, in making a determination
whether to grant, or continue to allow, unescorted access to
radioactive material or other property.
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 radioactive
material or other property.
7. The Licensee shall document the basis for its determination
whether to grant, or continue to allow, unescorted access to the
radioactive material or other property.
Prohibitions
A Licensee shall not base a final determination to deny an
individual access to radioactive material or other property solely
on information received from the FBI involving an arrest more than
one (1) year old, for which there is no information as to
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 records 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
Nuclear Regulatory Commission's (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 radioactive material or other property, 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 via 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
resubmission 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 resubmission. 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 records 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 the
record 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
[[Page 25795]]
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 allow 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 for unescorted access to radioactive
material or other property based on the criminal history records
check, only upon receipt of the FBI's ultimate confirmation or
correction of the record. Upon a final adverse determination for
unescorted access to radioactive material or other property, the
Licensee shall provide the individual its documented basis for
denial. During this review process for assuring correct and complete
information, unescorted access to radioactive material or other
property shall not be granted to an individual.
Protection of Information
1. Each Licensee who obtains a criminal history records check
for 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 nor 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 the radioactive material
or other property. No individual authorized to have access to the
information may redisseminate 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 records check may be transferred to another
Licensee if the Licensee holding the criminal history record
receives the individual's written request to redisseminate 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
radioactive material or other property. 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.
Attachment 3--Trustworthiness and Reliability Requirements
In order to ensure the safe handling, use, and control
radioactive material or other property, each licensee shall control
and limit access to radioactive material or other property to those
individuals who have established the need-to-know, and are
considered to be trustworthy and reliable. Licensees shall document
the basis for concluding that there is reasonable assurance that the
individuals that are granted unescorted access to radioactive
material or other property are trustworthy and reliable, and do not
constitute an unreasonable risk for malevolent activities.
The Licensee shall comply with the requirements of this
Attachment:
1. The trustworthiness and reliability of an individual shall be
determined based on a background investigation:
(a) The background investigation shall address at least the past
three (3) years, and, at a minimum, include verification of
employment, education, and personal references. The licensee shall
also, to the extent possible, obtain independent information to
corroborate the information provided by the employee (i.e., seeking
references not supplied by the individual).
(b) If an individual's employment has been less than the
required three (3) year period, educational references may be used
in lieu of employment history.
The licensee's background investigation requirements may be
satisfied for an individual that has an active Federal security
clearance.
2. The licensee shall retain documentation regarding the
trustworthiness and reliability of individual employees for three
years after the individual's employment ends.
[FR Doc. E7-8762 Filed 5-4-07; 8:45 am]
BILLING CODE 7590-01-P