[Federal Register Volume 74, Number 70 (Tuesday, April 14, 2009)]
[Proposed Rules]
[Pages 17115-17119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8461]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
RIN 3150 AI25
[NRC-2008-0619]
Requirements for Fingerprinting for Criminal History Record
Checks of Individuals Granted Unescorted Access to Research and Test
Reactors
AGENCY: Nuclear Regulatory Commission.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is issuing this
Advance Notice of Proposed Rulemaking (ANPR) to begin the process of
establishing generic requirements for NRC research and test reactor
(RTR) licensees to obtain fingerprint-based criminal history record
checks on individuals having unescorted access to their facilities.
This action is taken to inform all interested parties of the
[[Page 17116]]
options that the NRC is considering for implementing the requirements
of the Energy Policy Act of 2005 (EPAct) as they pertain to RTRs.
DATES: Submit comments by June 15, 2009. Comments received after this
date will be considered if it is practical to do so, but the Commission
is able to ensure consideration only of comments received on or before
this date.
ADDRESSES: You may submit comments by any one of the following methods.
Comments submitted in writing or in electronic form will be made
available for public inspection. Because your comments will not be
edited to remove any identifying or contact information, the NRC
cautions you against including any information in your submission that
you do not want to be publicly disclosed. All commenters should ensure
that sensitive or Safeguards Information is not contained in their
responses or comments to this ANPR.
Federal e-Rulemaking Portal: Go to http://www.regulations.gov and
search for documents filed under Docket ID NRC-2008-0619. Address
questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail
[email protected].
E-mail Comments To: [email protected]. If you do not
receive a reply e-mail confirming that we have received your comments,
contact us directly at (301) 415-1677.
Mail Comments To: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
Hand Deliver Comments To: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 a.m. and 4:15 p.m. during Federal workdays.
(Telephone (301) 415-1677).
Fax Comments To: Secretary, U.S. Nuclear Regulatory Commission at
(301) 415-1101.
You can access publicly available documents related to this
document using the following methods:
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Public
File Area, Room O-1F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland. The PDR reproduction contractor will copy
documents for a fee.
NRC's Agencywide Document Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC's PDR
reference staff at 1 800-397-4209, or (301) 415-4737, or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Harry Tovmassian, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-3092, e-mail [email protected];
or Linh Tran, Office of Nuclear Reactor Regulation, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-
4103, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Background
Before the terrorist actions of September 11, 2001, NRC regulations
in 10 CFR 73.60 and 10 CFR 73.67 imposed physical protection
requirements on RTRs that included measures for 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 to protect special nuclear
material from theft or diversion. Additionally, 10 CFR 73.60(f)
implemented the Commission's authority to impose alternative or
additional security measures for the protection against radiological
sabotage for RTRs licensed to operate at power levels at or above two
megawatts thermal (MWt). Under this provision, several RTRs have
implemented such additional measures. Subsequent to September 11, 2001,
the NRC evaluated the adequacy of security at RTRs and considered
whether additional actions should be taken to help ensure the
trustworthiness and reliability of individuals with unescorted access
to RTRs. RTRs were advised to consider taking immediate additional
precautions, including observation of activities within their facility.
The NRC evaluated these additional measures at each facility during the
remainder of 2001.
From 2002 through 2004, RTRs voluntarily implemented compensatory
measures (CM) that included site-specific background investigations for
individuals granted unescorted access. Depending on local restrictions,
such as university rules, some of these background investigations
included provisions for Federal Bureau of Investigation (FBI)
fingerprint-based criminal history record checks, while checks at other
RTRs included provisions for local or State law enforcement
fingerprint-based criminal history record checks. Investigations at
some RTRs did not include any fingerprinting. The NRC has also
conducted security assessments at certain RTRs which helped to identify
risk-significant areas and materials.
On August 8, 2005, the President signed the EPAct into law. Among
other features, Section 652 of the EPAct amended Section 149 of the
Atomic Energy Act of 1954 (AEA) and provided the NRC with additional
authority to require fingerprint-based criminal history record checks
for unescorted access to a broader class of its licensees, including
RTRs. Before the passage of the EPAct, Section 149 limited the NRC's
authority to require fingerprinting of individuals being considered for
unescorted access to nuclear power plants.
In October 2005, the NRC staff informed the Commission of the
staff's plan for implementing the NRC's responsibilities under the
EPAct and requested Commission approval of the staff's funding
recommendation for fiscal year 2006. The Commission approved the
staff's recommendations and directed the staff to recommend appropriate
interim regulatory actions that the NRC should implement while it
developed the generic requirements for granting unescorted access,
including the provisions in Section 652 of the EPAct pertaining to
fingerprinting.
In January 2007, the NRC staff provided information and
recommendations to the Commission on its EPAct interim implementation
plan. In March 2007, the Commission directed the NRC staff to issue
orders to RTRs to require fingerprint-based criminal history record
checks for individuals with unescorted access to these facilities. The
orders were to require fingerprinting only for individuals with
unescorted access to risk-significant areas or materials within the
facilities. The Commission also directed the NRC staff to proceed with
a rulemaking to determine if fingerprint-based criminal history record
checks should be required for additional RTR personnel.
On April 30, 2007, the NRC issued NRC Order EA-07-074, ``Order
Imposing Fingerprinting and Criminal History Records Check Requirements
for Unescorted Access to Research and Test Reactors,'' (ADAMS Accession
No. ML070750140) (72 FR 25337; May 4, 2007). On August 1, 2007, the NRC
issued Order EA-07-098, ``Order Imposing Fingerprinting and Criminal
History Records Check Requirements for
[[Page 17117]]
Unescorted Access to the General Atomics' Research and Test Reactor,''
(ADAMS Accession No. ML072050494) (72 FR 44590; August 8, 2007). These
orders required RTR licensees to conduct FBI fingerprint-based criminal
history record checks for individuals granted unescorted access to
special nuclear materials at their facilities.
The Commission directed the NRC staff to implement the EPAct on an
interim basis through orders while developing a rule because it was
necessary to implement the requirements immediately for common defense
and security. Unlike the requirements of a rule, the orders apply only
to the licensees named in the orders and would not apply prospectively
to applicants for new licenses. Therefore, the NRC would have to
periodically issue orders as needed to cover new and amended licenses,
and perhaps reissue them periodically to existing licensees if
requirements or administrative practices change. Finally, to improve
regulatory efficiency and stability, it is appropriate to place
generally applicable requirements in the regulations, rather than to
rely on orders indefinitely to impose these requirements.
This ANPR is being published to obtain stakeholder views on the
issues associated with the proposal to require fingerprint-based
criminal record checks for individuals granted unescorted access to
RTRs. The rulemaking would generically require RTR licensees to ensure
that individuals granted unescorted access to risk-significant areas
and risk-significant materials at RTRs are subject to an FBI
fingerprint-based criminal history record check or an acceptable
alternative. The rulemaking process, which will include a proposed and
final rule as well as this ANPR, will provide RTR licensees and other
interested stakeholders several opportunities to comment on the
proposed requirements to ensure transparency in the development of
requirements designed to provide adequate protection of the public
health and safety and the common defense and security.
Existing Requirements Pertaining to Research and Test Reactors
The security of RTRs is regulated through requirements located in
part 73 of the Commission's regulations. The specific security measures
that are required vary depending on several factors, which include the
quantity and type of special nuclear material possessed by the
licensee, as well as the power level at which the licensee is
authorized to operate. For RTRs that possess special nuclear material
of moderate or low strategic significance (defined by 10 CFR 73.2), 10
CFR 73.67(b)(c)(d) and 73.67(f), as applicable, specify the basic fixed
site physical security requirements (e.g., storage and access
controls). Sections 73.60(a) through (e) specify additional
requirements for physical protection at RTRs with a formula quantity of
strategic special nuclear material that is not readily separable from
other radioactive material and that has a total dose rate of less than
100 rem per hour at 3 feet without shielding. For licensees subject to
these requirements, the provisions of 10 CFR 73.60 are intended to be
implemented in addition to the applicable requirements of 10 CFR 73.67.
In addition, 10 CFR 73.60(f) specifies that ``* * * the Commission
may require, depending on the individual facility and site conditions,
any alternate or additional measures deemed necessary to protect
against radiological sabotage at non-power reactors licensed to operate
at or above a power level of 2 megawatts thermal.'' As noted
previously, these additional measures have been imposed on several NRC
licensees who are licensed to operate at these levels.
Sections 73.60 and 73.67 require RTRs, at a minimum, to store and
to use special nuclear material in controlled access areas, monitor the
controlled access areas for unauthorized activities, and ensure a
response to all unauthorized activities. These regulations also require
that unescorted access to the controlled access areas be limited to
authorized individuals. The RTRs implement these requirements on a
site-specific basis through their security plans and procedures. As
previously mentioned, RTRs also implemented site-specific background
investigations or checks in their voluntarily adopted CMs, and obtained
an FBI fingerprint-based criminal history record check for individuals
granted unescorted access to special nuclear material under NRC orders.
Rulemaking Considerations
As a result of the EPAct, the NRC is directed by Section 149 of the
AEA to require the licensee to obtain a fingerprint-based criminal
history record check for any individual who is permitted unescorted
access to (i) a utilization facility; or (ii) radioactive material or
other property subject to regulation by the Commission that 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. Section 149 requires that the
fingerprints that are collected by licensees be submitted to the FBI
through the NRC. The statute is clear that all persons who are granted
unescorted access to these facilities, areas, or materials as
designated by the NRC must be fingerprinted, unless relieved by rule.
Section 149 permits the NRC to relieve certain individuals by rule from
the fingerprinting requirement. Currently, the NRC has not issued a
regulation that would relieve any person granted unescorted access to
an RTR from the fingerprinting requirement.
As noted previously, the NRC issued site-specific orders to satisfy
the mandate of the EPAct. Each RTR licensee was required by those
orders to obtain an FBI fingerprint-based criminal history record check
for individuals before granting unescorted access to special nuclear
materials. Those orders remain in effect. The orders require each
licensee to obtain the fingerprints of each individual who is seeking
or permitted unescorted access. Specifically, the orders state that,
``an individual who is granted `unescorted access' could exercise
physical control over the special nuclear material possessed by the
licensee, which would be of significance to the common defense and
security or would adversely affect the health and safety of the public,
such that the special nuclear material could be used or removed in an
unauthorized manner without detection, assessment, or response by
systems or persons designated to detect, assess or respond to such
unauthorized use or removal.'' In implementing the requirement of the
EPAct on an interim basis, the orders were issued requiring
fingerprinting only for individuals with unescorted access to risk-
significant materials (i.e., fuel), within the research and test
reactor facilities.
Although the interim order requirements were limited to risk-
significant materials of the licensee's facility, the Commission
solicits comment on whether the scope of the unescorted access
fingerprinting requirement in the order should be broadened in the
proposed rule to include unescorted access to appropriate areas of the
facility. This would ensure that all of the risk-significant materials
and equipment in the facility are protected, rather than just the
special nuclear material. Under the existing requirements, licensees
must conduct the FBI fingerprint-based criminal history record checks
for individuals who could exercise physical control over the special
nuclear material; existing requirements do not,
[[Page 17118]]
however, specifically address unescorted access to the physical areas
surrounding the special nuclear material or the reactor itself.
All RTRs are licensed as utilization facilities as that term is
defined by Section 11 of the AEA and 10 CFR 50.2. However, because RTRs
are all uniquely configured and not susceptible to a generic
classification of what portion or portions of a larger facility
constitute the part of the ``utilization facility'' for which
unescorted access is an issue, the NRC is seeking comment on whether
defining this term too broadly might frustrate the agency's regulatory
objectives, interfere with other statutory mandates of the AEA, or
inefficiently implement the intent of the EPAct. For example, imposing
an FBI fingerprint-based criminal history record check for all
individuals with unescorted access to all areas of a generically-
defined utilization facility could potentially hinder research and
education activities, create undue administrative burdens, and be a
costly, but unnecessary requirement for licensees. It may be better to
design the requirement in such a way that FBI fingerprint-based
criminal history record checks at an RTR facility are limited to
individuals with unescorted access to the ``areas of significance''
within the facility. The ``areas of significance'' would likely
encompass the nuclear reactor as well as fuel storage areas and the
components designed specifically for reactor safety and protection of
the public health and safety. To ensure consistency among the RTRs in
implementing the EPAct, the NRC is considering defining ``areas of
significance'' as the protective boundary requiring FBI fingerprint-
based criminal record checks for granting of unescorted access.
Individuals who have unescorted access to the ``areas of
significance,'' without verification of trustworthiness and
reliability, could directly perform malevolent acts or may facilitate
others in commission of these acts, involving special nuclear material
or equipment that would directly or indirectly endanger the public
health and safety by exposure to radiation.
Specific Considerations
The NRC proposes to specify the requirement to have a fingerprint-
based criminal history record check for individuals with unescorted
access to RTRs through a revision of 10 CFR 73.60. The NRC proposes to
add a new paragraph (g) ``Requirements for criminal history record
checks of individuals granted unescorted access,'' to the existing
regulation at 10 CFR 73.60. The NRC is proposing to require that each
RTR licensee have: (1) A program for obtaining fingerprint-based
criminal record checks for individuals granted unescorted access to
``areas of significance;'' (2) a procedure to assure that certain
prohibited information is not used as the basis for the denial of
unescorted access; (3) specific procedures for the conduct of
fingerprinting; (4) a procedure for correction or completion of
criminal record information; (5) a procedure for protection of
information; and (6) a procedure for official review.
Before determining the exact nature of a proposed rule implementing
the requirements of the EPAct, the NRC is seeking comments on this
matter from stakeholders. Specific areas on which the Commission is
requesting comments are discussed in the following sections. Comments
accompanied by supporting rationale are particularly requested on the
following questions or subjects.
Areas of Significance
Under the EPAct's mandate to require fingerprinting for unescorted
access to utilization facilities, the NRC is proposing to require
fingerprint-based criminal history record checks only for individuals
granted unescorted access to the ``areas of significance'' within the
RTR facility. As noted earlier, the unique nature of each RTR makes it
difficult to develop a generically-applicable definition of
``utilization facility'' that would result in an effective and
implementable regulation. This objective would be better achieved by
limiting this requirement to an area within the RTRs identified as the
``area of significance.'' Generally speaking, the NRC considers ``areas
of significance'' of a particular RTR as physically bounded location(s)
within the facility where special nuclear material and/or equipment are
contained, such that access to, or disruption within the area could
cause an event endangering the general public heath and safety by
exposure to radiation. In attempting to determine what specific areas
of an RTR might generically constitute ``areas of significance,'' the
NRC identified three potential options: (1) Controlled access areas
(CAAs) as defined in 10 CFR 73.2; (2) areas of the facility as
determined in each licensee's security assessment; or (3) prescriptive
locations, such as the reactor (regardless of type), spent fuel storage
areas, fresh fuel storage areas, fresh fuel processing areas, control
room, areas containing engineered safety feature equipment, if
applicable, areas of containment/confinement, if applicable, and areas
containing coolant piping, if applicable.
Regarding option 1, the NRC believes that areas at the facility
that are designated as CAAs are already defined in each licensee's
security plans or security procedures and access to these CAAs is
already being controlled. Regarding Option 2, licensee's security
assessments could be used to identify ``areas of significance'' as
areas designated to be protected against malevolent activities such as
theft or sabotage.
Areas of Significance Issues
Keeping these options in mind, the NRC is seeking specific comment
on the following questions and issues:
1. Which of these definitions of ``areas of significance'' should
be adopted by the NRC? Are there other preferable ways to define
``areas of significance''? If so, what should they be and what are
their advantages and disadvantages?
2. What would be the approximate number of additional personnel
that must be fingerprinted for unescorted access based on the ``areas
of significance'' as described in Question 1? Are there any specific
categories of persons whom the NRC should consider exempting from
fingerprinting?
3. What is the estimated cost or impact of performing security plan
or procedure revisions, and of providing the necessary administrative
controls and training to implement fingerprint requirements for
individuals permitted unescorted access to ``areas of significance''
such as those described in Question 1?
Unescorted Access
The NRC is also considering a definition of unescorted access that
would be specific to the RTR facilities. The current concept of
``unescorted access'' for power reactors is not readily applicable to
RTRs because of an RTR's site-specific configuration. For the purpose
of the orders, an individual who is required to be authorized by the
licensee for ``unescorted access'' is someone who could exercise
physical control over the special nuclear material possessed by the
licensee. These individuals include those with the capability and
knowledge to use the special nuclear material in the utilization
facility or to remove the special nuclear material from the utilization
facility without detection, assessment, or response by the physical
protection system. Because the focus of this rulemaking effort is
related to the trustworthiness and reliability of individuals being
granted unescorted access to the facility, and not just access to the
special nuclear material, the NRC plans to define an individual with
[[Page 17119]]
unescorted access to the utilization facility as any individual who has
the ability to access licensee-designated ``areas of significance''
without continuous direct supervision or monitoring by an authorized
individual.
The NRC Seeks Stakeholders' Views on the Following Questions
4. Is the proposed definition of individuals with unescorted access
reasonable and sufficient? If not, why? For example, should persons
granted unescorted access to ``areas of significance'' be permitted
access to the facility at times when no supervision or oversight is
present (e.g., evenings or weekends)? Should the NRC require access
controls such as maintaining records of the time and duration of
persons accessing an ``area of significance'' without escorts?
Implementation of the Orders
To develop the proposed requirements for fingerprint-based criminal
history record checks, the NRC would like feedback from stakeholders on
their experiences in implementing the orders that were issued in April
2007, such as:
5. What has worked well, what has not, and why?
6. What requirements were found to be the most burdensome? Are
there less burdensome alternatives that would accomplish the same level
of protection?
7. Are there requirements in the orders that appear to contribute
little to the security of the facility? Could the same resources be
used more effectively in other ways?
8. Are there other enhancements that could be made?
9. Has the implementation of the orders identified any new issues
that should be addressed through rulemaking?
Others Items of Interest to the NRC
Because RTRs all have unique site-specific configurations, the NRC
is seeking stakeholders' views on the most effective way to formulate
regulations that continue to provide adequate safety to the public
without imposing an unnecessary burden on any individual licensee.
During the development and implementation of the orders, the NRC
identified several issues for which it planned to provide clarification
in the rulemaking process. One issue was obtaining the fingerprints of
a person for whom an FBI fingerprint-based criminal history record
check is unlikely to yield reliable results. The FBI criminal history
record check does not provide information on individuals who are under
eighteen years of age, and will only obtain information on an
individual's criminal history record within the United States. Thus,
for foreign nationals who have never lived in the United States,
students who are 18 years old or younger, or even U.S. citizens who
have lived abroad for much or all of their adult lives, the criminal
history record check is unlikely to provide any useful information
regarding a person's trustworthiness and reliability. However, as noted
earlier, Section 149 of the AEA requires the obtaining of fingerprints
for all persons granted unescorted access, except if these persons are
relieved by rule.
In Light of This, the NRC Seeks Stakeholders' Views on the Following
Questions
10. Regarding alternatives to fingerprinting foreign nationals and/
or minors regarding a trustworthiness and reliability determination:
(a) Do foreign nationals and/or minors require unescorted access to
``areas of significance''? (b) are there alternative methods to obtain
information upon which a licensee could base a trustworthiness and
reliability determination for these individuals?
11. Is there any additional information that the NRC should
consider in preparing the proposed rule?
Proposed rule language was not included in this ANPR. During the
public comment period for this ANPR, the NRC plans to conduct a public
workshop to discuss this rulemaking with stakeholders. Thus, RTR
licensees and other interested stakeholders will have several
opportunities to provide their comments for the NRC's consideration.
Dated at Rockville, Maryland, this 8th day of April 2009.
For the Nuclear Regulatory Commission.
J. Samuel Walker,
Acting Secretary of the Commission.
[FR Doc. E9-8461 Filed 4-13-09; 8:45 am]
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