[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,

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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

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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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