[Federal Register Volume 72, Number 152 (Wednesday, August 8, 2007)]
[Notices]
[Pages 44590-44592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15494]
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NUCLEAR REGULATORY COMMISSION
[EA-07-098; Dockets: 50-89 and 50-163]
In the Matter of General Atomics; TRIGA Mark I and Mark F; Order
Imposing Fingerprinting and Criminal History Records Check;
Requirements for Unescorted Access to the General Atomics' Research and
Test Reactors (Effective Immediately)
General Atomics (GA or the licensee) holds two licenses, R-38 and
R-67, for TRIGA reactors, that are classified 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
the 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 GA RTRs.
Prior to September 11, 2001, the Commission established physical
protection requirements applicable to RTRs, which included storing and
using 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
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precautions including observation of activities within their facility.
Licensee's precautions were evaluated at specific RTR sites during 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 special 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 the person's background. This
verification includes 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
insider threats.
Further, RTRs are required by Order dated September 29, 2006, to
have FBI fingerprint-based identification and criminal history records
checks for persons that are allowed access to Safeguards Information
(SGI).\1\ These individuals are allowed access to the details of
security plans or procedures at the specific facility and, as such,
have actual knowledge and ability to affect facility security. This
Order provides additional assurance that security information and the
associated RTR facilities are adequately protected.
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\1\ ``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 seeking unescorted access to
facilities licensed under sections 103 and 104b of the AEA (i.e., power
reactors). Power reactors are required by 10 CFR 73.57 to have
fingerprint-based criminal history records checks performed as part of
the granting of unescorted access to the facility. RTRs have not been
subject to this requirement, and have only been required to limit
access to authorized persons and to 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 section 149 of the AEA ``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.'' \2\ Currently, the NRC does not have a 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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\2\ 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 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 an 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 the
Attachment to this Order, on RTR licensees, including GA. 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 a
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 GA RTRs.
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 could 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.
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 General Atomics shall
comply with the requirements set forth in this order.
A. General Atomics 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
[[Page 44592]]
meets the requirements of the Attachment 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 the
Attachment, 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 SGI 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 the Attachment 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 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 the
Attachment to this Order by October 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 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.
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 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 1st day of August, 2007.
For The Nuclear Regulatory Commission.
George Pangburn,
Acting Director, Office of Federal and State Materials. and
Environmental Management Programs.
[FR Doc. E7-15494 Filed 8-7-07; 8:45 am]
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