[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

[[Page 44591]]

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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