[Federal Register Volume 73, Number 115 (Friday, June 13, 2008)]
[Notices]
[Pages 33859-33865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13326]


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NUCLEAR REGULATORY COMMISSION

 [EA-08-033]


In the Matter of; Certain Panoramic and Underwater Irradiators 
Authorized To Possess Greater Than 370 Terabecquerels 10,000 Curies 
Byproduct Material in the Form of Sealed Sources

Order Imposing Compensatory Measures (Effective Immediately)

I

    The Licensees identified in Attachment 1 to this Order hold 
licenses issued in accordance with the Atomic Energy Act of 1954 and 10 
CFR Part 36 or comparable Agreement State regulations by the U.S. 
Nuclear Regulatory Commission (NRC or Commission) or an Agreement State 
authorizing possession of greater than 370 terabecquerels (10,000 
curies) of byproduct material in the form of sealed sources either in 
panoramic irradiators that have dry or wet storage of the sealed 
sources or in underwater irradiators in which both the source and the 
product being irradiated are under

[[Page 33860]]

water. Commission regulations at 10 CFR 20.1801 or equivalent Agreement 
State regulations, require Licensees to secure, from unauthorized 
removal or access, licensed materials that are stored in controlled or 
unrestricted areas. Commission regulations at 10 CFR 20.1802 or 
equivalent Agreement States regulations, require Licensees to control 
and maintain constant surveillance of licensed material that is in a 
controlled or unrestricted area and that is not in storage.

II

    On September 11, 2001, terrorists simultaneously attacked targets 
in New York, N.Y., and Washington, DC, utilizing large commercial 
aircraft as weapons. In response to the attacks and intelligence 
information subsequently obtained, the Commission issued a number of 
Safeguards and Threat Advisories to its Licensees in order to 
strengthen Licensees' capabilities and readiness to respond to a 
potential attack on a nuclear facility. The Commission has also 
communicated with other Federal, State and local government agencies 
and industry representatives to discuss and evaluate the current threat 
environment in order to assess the adequacy of security measures at 
licensed facilities. In addition, the Commission has been conducting a 
review of its safeguards and security programs and requirements.
    As a result of its consideration of current safeguards and license 
requirements, as well as a review of information provided by the 
intelligence community, the Commission has determined that certain 
compensatory measures are required to be implemented by Licensees as 
prudent measures to address the current threat environment. Therefore, 
the Commission is imposing the requirements, as set forth in Attachment 
2 \1\ on all Licensees identified in Attachment 1 \2\ of this Order who 
currently possess, or have near term plans to possess, greater than 370 
terabecquerels (10,000 curies) of byproduct material in the form of 
sealed sources. These requirements, which supplement existing 
regulatory requirements, will provide the Commission with reasonable 
assurance that the public health and safety and common defense and 
security continue to be adequately protected in the current threat 
environment. Attachment 3 of this Order contains the requirements for 
fingerprinting and criminal history record checks for individuals when 
the licensee's reviewing official is determining access to Safeguards 
Information or unescorted access to the panoramic or underwater 
irradiator sealed sources. These requirements will remain in effect 
until the Commission determines otherwise.
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    \1\ Attachment 2 contains some requirements that are SAFEGUARDS 
INFORMATION, and cannot be released to the public. The remainder of 
the requirements contained in Attachment 2 that are not SAFEGUARDS 
INFORMATION are being released to the public.
    \2\ Attachment 1 contains sensitive information and will not be 
released to the public.
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    The Commission concludes that the security measures must be 
embodied in an Order consistent with the established regulatory 
framework. Some of the security measures contained in Attachment 2 of 
this Order contain Safeguards Information and will not be released to 
the public. The Commission has broad statutory authority to protect and 
prohibit the unauthorized disclosure of Safeguards Information. Section 
147 of the Atomic Energy Act of 1954, as amended, grants the Commission 
explicit authority to ``issue such orders, as necessary to prohibit the 
unauthorized disclosure of safeguards information.* * *'' This 
authority extends to information concerning special nuclear material, 
source material, and byproduct material, as well as production and 
utilization facilities. Licensees must ensure proper handling and 
protection of Safeguards Information to avoid unauthorized disclosure 
in accordance with the specific requirements for the protection of 
Safeguards Information contained in Attachment 2 to the NRC's ``Order 
Imposing Requirements for the Protection of Certain Safeguards 
Information'' (EA-07-050). The Commission hereby provides notice that 
it intends to treat all violations of the requirements contained in 
Attachment 2 to the NRC's ``Order Imposing Requirements for the 
Protection of Certain Safeguards Information'' (EA-07-050), applicable 
to the handling and unauthorized disclosure of Safeguards Information 
as serious breaches of adequate protection of the public health and 
safety and the common defense and security of the United States. Access 
to Safeguards Information is limited to those persons who have 
established a need-to-know the information, are considered to be 
trustworthy and reliable, have been fingerprinted and undergone a 
Federal Bureau of Investigation (FBI) identification and criminal 
history records check in accordance with the NRC's ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information'' (EA-07-051). A need-to-know means a 
determination by a person having responsibility for protecting 
Safeguards Information that a proposed recipient's access to Safeguards 
Information is necessary in the performance of official, contractual, 
or licensee duties of employment. Individuals who have been 
fingerprinted and granted access to Safeguards Information by the 
reviewing official under the NRC's ``Order Imposing Fingerprinting and 
Criminal History Records Check Requirements for Access to Safeguards 
Information'' (EA-07-051) do not need to be fingerprinted again for 
purposes of being considered for unescorted access.
    This Order also requires that a reviewing official must consider 
the results of the Federal Bureau of Investigations criminal history 
records check in conjunctions with other applicable requirements to 
determine whether an individual may be granted or allowed continued 
unescorted access. The reviewing official may be one that has 
previously been approved by NRC in accordance with the ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information'' (EA-07-051) dated March 8, 2007. 
Licensees may nominate additional reviewing officials for making 
unescorted access determinations in accordance with NRC Orders EA-07-
051. The nominated reviewing officials must have access to Safeguards 
Information or require unescorted access to the radioactive material as 
part of their job duties.
    In order to provide assurance that the Licensees are implementing 
prudent measures to achieve a consistent level of protection to address 
the current threat environment, all Licensees who hold licenses issued 
by the U.S. Nuclear Regulatory Commission or an Agreement State 
authorizing possession greater than 370 terabecquerels (10,000 curies) 
of byproduct material in the form of sealed sources in a panoramic or 
underwater irradiator shall implement the requirements identified in 
Attachments 2 and 3 to this Order. 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 81, 147, 149, 161b, 161i, 161o, 
182 and 186 of the Atomic Energy Act of 1954, as amended, and the 
Commission's regulations in 10 CFR 2.202, 10 CFR Part 30, Part 36, and 
Part 73, it is hereby

[[Page 33861]]

ordered, effective immediately, that all licensees identified in 
attachment 1 to this order shall comply with the requirements of this 
order as follows:
    A. The Licensee shall, notwithstanding the provisions of any 
Commission or Agreement State regulation or license to the contrary, 
comply with the requirements described in Attachments 2 and 3 to this 
Order. The licensee shall immediately start implementation of the 
requirements in Attachments 2 and 3 to the Order and shall complete 
implementation by December 3, 2008, or the first day that greater than 
370 terabecquerels (10,000 curies) of byproduct material in the form of 
sealed sources is possessed, whichever is later.
    B. 1. The Licensee shall, within twenty (20) days of the date of 
this Order, notify the Commission, (1) if it is unable to comply with 
any of the requirements described in Attachments 2 or 3, (2) if 
compliance with any of the requirements is unnecessary in its specific 
circumstances, or (3) if implementation of any of the requirements 
would cause the Licensee to be in violation of the provisions of any 
Commission or Agreement State regulation or its license. The 
notification shall provide the Licensee's justification for seeking 
relief from or variation of any specific requirement.
    2. If the Licensee considers that implementation of any of the 
requirements described in Attachments 2 or 3 to this Order would 
adversely impact safe operation of the facility, the Licensee must 
notify the Commission, within twenty (20) days of this Order, of the 
adverse safety impact, the basis for its determination that the 
requirement has an adverse safety impact, and either a proposal for 
achieving the same objectives specified in the Attachments 2 or 3 
requirement in question, or a schedule for modifying the facility to 
address the adverse safety condition. If neither approach is 
appropriate, the Licensee must supplement its response to Condition B.1 
of this Order to identify the condition as a requirement with which it 
cannot comply, with attendant justifications as required in Condition 
B.1.
    C. 1. In accordance with the NRC's ``Order Imposing Fingerprinting 
and Criminal History Records Check Requirements for Access to 
Safeguards Information'' (EA-07-051) issued on March 8, 2007, only the 
NRC-approved reviewing official shall review results from an FBI 
criminal history records check. The licensee may use a reviewing 
official previously approved by the NRC as its reviewing official for 
determining access to Safeguards Information or the licensee may 
nominate another individual specifically for making unescorted access 
to radioactive material determinations, using the process described in 
EA-07-051. The reviewing official must have access to Safeguards 
Information or require unescorted access to the radioactive material as 
part of their job duties. The reviewing official shall determine 
whether an individual may have, or continue to have, unescorted access 
to the panoramic or underwater irradiator sealed sources that equal or 
exceed 370 Terabecquerels (10,000 curies). Fingerprinting and the FBI 
identification and criminal history records check are not required for 
individuals exempted from fingerprinting requirements under 10 CFR 
73.61 [72 FR 4945 (February 2, 2007)]. In addition, individuals who 
have 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 Licensee's reviewing official), have satisfied 
the Energy Policy of 2005 fingerprinting requirement and need not be 
fingerprinted again for purposes of being considered for unescorted 
access.
    2. No person may have access to Safeguards Information or 
unescorted access to the panoramic or underwater irradiator sealed 
sources 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 a utilization facility or radioactive 
material subject to regulation by the NRC.
    D. Fingerprints shall be submitted and reviewed in accordance with 
the procedures described in Attachment 3 to this Order. Individuals who 
have been fingerprinted and granted access to Safeguards Information by 
the reviewing official under Order EA-07-051 do not need to be 
fingerprinted again for purposes of being considered for unescorted 
access.
    E. The Licensee may allow any individual who currently has 
unescorted access to the panoramic or underwater irradiator sealed 
sources, in accordance with this Order, to continue to have unescorted 
access during the pendency of 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 the panoramic or underwater 
irradiator sealed sources. The licensee shall complete implementation 
of the requirements of Attachments 2 and 3 to this Order by December 3, 
2008.
    F. 1. The Licensee shall, within twenty (20) days of the date of 
this Order, submit to the Commission a schedule for completion of each 
requirement described in Attachments 2 and 3.
    2. The Licensee shall report to the Commission when they have 
achieved full compliance with the requirements described in Attachments 
2 and 3.
    G. Notwithstanding any provisions of the Commission's or Agreement 
State's regulations to the contrary, all measures implemented or 
actions taken in response to this Order shall be maintained until the 
Commission determines otherwise.

Licensee response to Conditions B.1, B.2, F.1, and F.2 above shall be 
submitted to the Director, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555. In addition, Licensee submittals that contain 
specific physical protection or security information considered to be 
Safeguards Information shall be put in a separate enclosure or 
attachment and, marked as ``SAFEGUARDS INFORMATION--MODIFIED HANDLING'' 
and mailed (no electronic transmittals i.e., no e-mail or FAX) to the 
NRC in accordance with Attachment 2 to the NRC's ``Order Imposing 
Requirements for the Protection of Certain Safeguards Information'' 
(EA-07-050).
    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 by the Licensee of good 
cause.

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 within twenty (20) days of the date of this Order. In addition, 
the Licensee and any other person adversely affected by this Order may 
request a hearing of this Order within twenty (20) days of the date of 
the Order. Where good cause is shown, consideration will be given to 
extending the time to request a hearing. A request for extension of 
time 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

[[Page 33862]]

statement of good cause for the extension.
    The answer may consent to this Order. If the answer includes a 
request for a hearing, it shall, under oath or affirmation, 
specifically set forth the matters of fact and law on which the 
Licensee relies and the reasons as to why the Order should not have 
been issued. If a person other than the Licensee requests a hearing, 
that person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d).
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule, which the NRC 
promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in 
pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process 
requires participants to submit and serve all adjudicatory documents 
over the internet, or in some cases to mail copies on electronic 
storage media. Participants may not submit paper copies of their 
filings unless they seek a waiver in accordance with the procedures 
described below.
    To comply with the procedural requirements associated with E-
Filing, at least ten (10) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by e-mail at 
[email protected], or by calling (301) 415-1677, to request (1) a 
digital ID certificate, which allows the participant (or its counsel or 
representative) to digitally sign documents and access the E-Submittal 
server for any NRC proceeding in which it is participating; and/or (2) 
creation of an electronic docket for the proceeding (even in instances 
when the requestor (or its counsel or representative) already holds an 
NRC-issued digital ID certificate). Each requestor will need to 
download the Workplace Forms Viewer(TM) to access the 
Electronic Information Exchange (EIE), a component of the E-Filing 
system. The Workplace Forms Viewer(TM) is free and is 
available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying for a digital ID certificate 
also is available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a requestor has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
request for a hearing through EIE. Submissions should be in Portable 
Document Format (PDF) in accordance with NRC guidance available on the 
NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. 
A filing is considered complete at the time the filer submits its 
document through EIE. To be timely, electronic filings must be 
submitted to the EIE system no later than 11:59 p.m. Eastern Time on 
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming 
receipt of the document. The EIE system also distributes an e-mail 
notice that provides access to the document to the NRC Office of the 
General Counsel and any others who have advised the Office of the 
Secretary that they wish to participate in the proceeding, so that the 
filer need not serve the document on those participants separately. 
Therefore, any others who wish to participate in the proceeding (or 
their counsel or representative) must apply for and receive a digital 
ID certificate before a hearing request is filed so that they may 
obtain access to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, 
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, 
Monday through Friday. The help line number is (800) 397-4209 or 
locally, (301) 415-4737.
    Participants who believe that they have good cause for not 
submitting documents electronically must file a motion, in accordance 
with 10 CFR 2.302(g), with their initial paper filing requesting 
authorization to continue to submit documents in paper format. Such 
filings must be submitted by (1) first class mail addressed to the 
Office of the Secretary of the Commission, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemaking and 
Adjudications Staff; or (2) courier, express mail, or expedited 
delivery service to the Office of the Secretary, Sixteenth Floor, One 
White Flint North, 11555 Rockville, Pike, Rockville, Maryland 20852, 
Attention: Rulemaking and Adjudications Staff. Participants filing a 
document in this manner are responsible for serving the document on all 
other participants. Filing is considered complete by first-class mail 
as of the time of deposit in the mail, or by courier, express mail, or 
expedited delivery service upon depositing the document with the 
provider of the service.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, an Atomic Safety and Licensing Board, or 
a Presiding Officer. Participants are requested not to include personal 
privacy information, such as social security numbers, home addresses, 
or home phone numbers in their filings. With respect to copyrighted 
works, except for limited excerpts that serve the purpose of the 
adjudicatory filings and would constitute a Fair Use application, 
Participants are requested not to include copyrighted materials in 
their works.
    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 
requesting 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 
specified in Section III above 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 specified 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 5th day of June 2008.


[[Page 33863]]


    For The Nuclear Regulatory Commission.
 Charles L. Miller,
Director, Office of Federal and State Materials and Environmental 
Management Programs.

Attachment 1: List of Licensees--Redacted

Attachment 2: Compensatory Measures for Panoramic and Underwater 
Irradiator Licensees Revision 2

    These compensatory measures (CMs) are established to delineate 
licensee responsibility in response to the current threat environment 
in the aftermath of the terrorist attacks of September 11, 2001. The 
following security measures apply to Licensees who, now and in the 
future, possess greater than 370 TeraBecquerels (TBq) [10,000 Ci] of 
byproduct material in the form of sealed sources in panoramic 
irradiators that have dry or wet storage of the sealed sources, or in 
underwater irradiators in which both the source and the product being 
irradiated are underwater.
    1. Use and store the radioactive material only within a security 
zone that isolates the material from unauthorized access and 
facilitates detection if such access occurs.
    The security zone is an area, defined by the licensee, that 
provides for both isolation of radioactive material and access control. 
The licensee must demonstrate for this area a means to detect any 
attempt of unauthorized access to licensed material. ``Isolation'' 
means to deter persons, materials, or vehicles from entering or leaving 
through other than established access control points. ``Access 
control'' means to allow only approved individuals into the security 
zone. Thus, isolation and access control aid in the detection of 
unauthorized access or activities deemed by the licensee to be 
indicative of, or contributory to, the loss, theft, or release of 
material. The security zone does not have to be the same as the 
restricted area or controlled area, as defined in 10 CFR Part 20.
    Security zones can be permanent or temporary to meet transitory or 
intermittent business activities (such as during periods of 
maintenance, source delivery and source replacement). Different 
isolation/access control measures may be used for periods during which 
the security zone is occupied versus unoccupied.
    2. Continuously control access to the security zone and limit 
admittance to those individuals who are approved and require access to 
perform their duties.
    A. For individuals granted access to safeguards information or 
unescorted access to the security zone, Licensees must provide 
reasonable assurance that individuals are trustworthy and reliable, and 
do not constitute an unreasonable risk to the common defense and 
security. ``Access'' means that an individual could exercise some 
physical control over the material or device containing radioactive 
material.
    i. The trustworthiness and reliability of individuals shall be 
determined based on a background investigation. The background 
investigation shall address at least the past 3 years and, as a 
minimum, include fingerprinting and a Federal Bureau of Investigation 
(FBI) criminal history check, verification of work or education 
references as appropriate to the length of employment, and confirmation 
of eligibility for employment in the United States.
    ii. Fingerprints shall be submitted and reviewed in accordance with 
the procedures described in Attachment 3 to this Order.
    iii. A reviewing official that the licensee nominated and has been 
approved by the NRC, in accordance with NRC ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information,'' may continue to make 
trustworthiness and reliability determinations. The licensee may also 
nominate another individual specifically for making unescorted access 
determinations using the process identified in the NRC ``Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information.''
    B. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed.]
    3. Implement a system (i.e., devices and/or trained individuals) to 
monitor, detect, assess and respond to unauthorized entries into or 
activities in the security zone.
    A. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed.]
    B. Provide enhanced security measures when temporary security zones 
are established, during periods of maintenance, source delivery and 
shipment, and source replacement, that will provide additional 
assurance for enhanced detection and assessment of and response to 
unauthorized individuals or activities involving the radioactive 
material. Such security measures shall include, but not be limited to:
    i. Advanced notification to the local law enforcement agency (LLEA) 
for radioactive source exchanges, deliveries, and shipments.
    ii. For shipments of sources, establish a positive means of 
transferring the security responsibility, between the shipper/carrier 
and the consignee (receiver), for communicating with the LLEA.
    C. Provide a positive measure to validate that there has been no 
unauthorized removal of the radioactive material from the security 
zone.
    D. Maintain continuous communications capability among the various 
components for intrusion detection and assessment to bring about a 
timely response.
    E. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed.]
    4. [This paragraph contains SAFEGUARDS INFORMATION and will not be 
publicly disclosed.]

Attachment 3: Requirements for Fingerprinting and Criminal History 
Checks of Individuals When Licensee's Reviewing Official is Determining 
Access to Safeguards Information or Unescorted Access to the Panoramic 
or Underwater Irradiator Sealed Sources

General Requirements

    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 access to 
safeguards information (SGI) or unescorted access to the panoramic or 
underwater irradiator sealed sources. 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 access to SGI or 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 73.59 for access to SGI or 10 CFR 73.61 for 
unescorted access, has a favorably-decided U.S. Government criminal 
history check (e.g. National Agency Check), Transportation Worker 
Identification Credentials in accordance with 49 CFR Part 1572, Bureau 
of Alcohol Tobacco Firearms and Explosives background checks and

[[Page 33864]]

clearances in accordance with 27 CFR Part 555, Health and Human 
Services security risk assessments for possession and use of select 
agents and toxins in accordance with 27 CFR Part 555, Hazardous 
Material security threat assessments for hazardous material endorsement 
to commercial drivers license in accordance with 49 CFR Part 1572, 
Customs and Border Patrol's Free and Secure Trace Program \1\ 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 check must be 
provided for either of the latter two cases. The Licensee must retain 
this documentation for a period of three (3) years from the date the 
individual no longer requires access to SGI or unescorted access to 
radioactive materials associated with the Licensee's activities.
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    \1\ The FAST program is a cooperative effort between the Bureau 
of Customs and Border Patrol and the governments of Canada and 
Mexico to coordinate processes for the clearance of commercial 
shipments at the U.S.-Canada and U.S.-Mexico borders. Participants 
in the FAST program, which requires successful completion of a 
background records check, may receive expedited entrance privileges 
at the northern and southern borders.
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    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 shall review the information received from the FBI 
and consider it, in conjunction with the trustworthy and reliability 
requirements of this Order, in making a determination whether to grant, 
or continue to allow, access to SGI or unescorted access to the 
panoramic or underwater irradiator sealed sources.
    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 access to SGI or unescorted access to the 
panoramic or underwater irradiator sealed sources.
    7. The Licensee shall document the basis for its determination 
whether to grant, or continue to allow, access to SGI or unescorted 
access to the panoramic or underwater irradiator sealed sources.

Prohibitions

    A Licensee shall not base a final determination to deny an 
individual access to radioactive materials solely on the basis of 
information received from the FBI involving: an arrest more than one 
(1) year old for which there is no information of the 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 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 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 
access to SGI or unescorted access to the panoramic or underwater 
irradiator sealed sources, 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) 415-7232, or by 
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 re-submission 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 re-submission. 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 
(Note: other fees may apply to obtain fingerprints from your local law 
enforcement agency). Licensees should submit payments electronically 
via http://www.pay.gov. Payments through Pay.gov can be made directly 
from the Licensee's credit/debit card. Licensees will need to establish 
a password and user ID before they can access Pay.gov. To establish an 
account, Licensee requests must be sent to [email protected]. The request 
must include the Licensee's name, address, point of contact, e-mail 
address, and phone number. The NRC will forward each request to Pay.gov 
and someone from Pay.gov will contact the Licensee with all of the 
necessary account information.
    Licensees shall make payments for processing before submitting 
applications to the NRC. Combined payment for multiple applications is 
acceptable. Licensees shall include the Pay.gov payment receipt(s) 
along with the application(s). For additional guidance on making 
electronic payments, contact the Facilities Security Branch, Division 
of Facilities and Security, at (301) 415-7404. The application fee 
(currently $36) 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 
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 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 it 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 
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

[[Page 33865]]

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 provide 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 on access 
to SGI or unescorted access to the panoramic or underwater irradiator 
sealed sources based upon the criminal history record only upon receipt 
of the FBI's ultimate confirmation or correction of the record. Upon a 
final adverse determination on access to SGI or unescorted access to 
the panoramic or underwater irradiator sealed sources, the Licensee 
shall provide the individual its documented basis for denial. Access to 
SGI or unescorted access to the panoramic or underwater irradiator 
sealed sources shall not be granted to an individual during the review 
process.

Protection of Information

    1. Each Licensee who obtains a criminal history record on 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 or 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 
access to SGI or unescorted access to the panoramic or underwater 
irradiator sealed sources. No individual authorized to have access to 
the information may re-disseminate 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 record check may be transferred to another Licensee if 
the Licensee holding the criminal history record receives the 
individual's written request to re-disseminate 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 access SGI or unescorted access to the panoramic or 
underwater irradiator sealed sources. 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.
[FR Doc. E8-13326 Filed 6-12-08; 8:45 am]
BILLING CODE 7590-01-P