[Federal Register Volume 74, Number 238 (Monday, December 14, 2009)]
[Notices]
[Pages 66164-66168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29653]
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NUCLEAR REGULATORY COMMISSION
[EA-09-205; NRC-2009-0544]
In the Matter of Licensees Authorized To Possess Radioactive
Material Quantities of Concern; Order Imposing Fingerprinting and
Criminal History Records Check Requirements for Unescorted Access to
Certain Radioactive Material (Effective Immediately)
I
The Licensees identified in Attachment A to the Increased Controls
(IC) Order (EA-09-204) hold licenses issued by the U.S. Nuclear
Regulatory Commission (NRC or Commission) in accordance with the Atomic
Energy Act (AEA) of 1954, as amended, and which may possess items
containing radioactive materials in quantities of concern.
Section 149 of the AEA, as amended by Section 652 of the Energy
Policy Act of 2005, requires fingerprinting and a Federal Bureau of
Investigation (FBI) identification and criminal history records checks
for ``any individual who is permitted unescorted access to radioactive
materials 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
[[Page 66165]]
security as to warrant fingerprinting and background checks.'' Pending
the completion of rulemaking, the NRC is issuing this Order to
implement these requirements, of the AEA and the Energy Policy Act of
2005, because a deliberate malevolent act by an individual with
unescorted access to radioactive materials quantities of concern has
the potential to result in significant adverse impacts to the public
health and safety.
These additional requirements do not apply to individuals or
classes of individuals who, under 10 CFR 73.61, are relieved from the
fingerprinting, identification, and records check requirements of
Section 149 of the AEA, as amended by Section 652 of the Energy Policy
Act of 2005. In addition, because the individuals listed in Attachment
1, Paragraph 3 to this Order have already satisfied the fingerprinting,
identification, and records check requirements, these individuals do
not need to take additional action in response to this Order.
II
The IC Order (EA-09-204) requires Licensees to increase control
over their sources in order to prevent unintended radiation exposure
and malicious acts. One specific requirement imposed by the IC Order is
that each Licensee conduct background checks to determine the
trustworthiness and reliability of individuals needing unescorted
access to radioactive materials. The Commission has determined that
radioactive materials possessed by the licensees listed in Attachment A
of the IC Order are of such significance to public health and safety as
to warrant fingerprinting and FBI identification and criminal history
records checks for such persons. Therefore, in accordance with Section
149 of the AEA and the Energy Policy Act of 2005, the Commission is
imposing the requirements set forth in this Order on all licensees
identified in Attachment A of the IC Order, which are currently
authorized to possess radioactive materials in quantities of concern.
These requirements include the specific fingerprinting and criminal
history records check requirements specified in Attachment 1 to this
Order. All requirements will remain in effect until the Commission
determines otherwise.
Because of the potentially significant adverse impacts associated
with a deliberate malevolent act by an individual with unescorted
access to radioactive materials quantities of concern, under 10 CFR
2.202, the NRC finds that the public health and safety require that
this Order be effective immediately.
III
Accordingly, pursuant to Sections 81, 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 Parts 30, 33, 40 and
50, it is hereby ordered, effective immediately, that all licensees
identified in attachment 1 to this order shall comply with the
requirements of this order as follows:
A
1. The Licensee shall, within ninety (90) days of the date of this
Order, establish and maintain a fingerprinting program that meets the
requirements of Attachment 1 of this Order for individuals that require
unescorted access to certain radioactive materials.
2. Within twenty five (25) days of the date of this Order, the
Licensee shall provide under oath or affirmation, a certification that
the Trustworthiness and Reliability (T&R) Official (an individual with
the responsibility to determine the trustworthiness and reliability of
another individual requiring unescorted access to the radioactive
materials identified in Table 1 of Attachment B of the IC Order) is
deemed trustworthy and reliable by the Licensee as required in
paragraph B.2 of this Order.
3. The Licensee shall, in writing, within twenty five (25) days of
the date of this Order, notify the Commission, (1) If it is unable to
comply with any of the requirements described in this Order or in
Attachment 1 to this Order, (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 regulation or its
license. The notification shall provide the Licensee's justification
for seeking relief from or variation of any specific requirement.
4. The Licensee shall complete implementation of the program
established in accordance with paragraph A.1 within ninety (90) days of
the date of this Order. In addition to the notifications in paragraphs
2 and 3 above, the Licensee shall notify the Commission within twenty-
five (25) days after they have achieved full compliance with the
requirements described in Attachment 1 to this Order. If within ninety
(90) days of the date of this Order, the Licensee is unable, due to
circumstances beyond its control, to complete implementation of this
Order, the Licensee shall submit a written request to the Commission
explaining the need for an extension of time to implement the
requirements. The request shall provide the Licensee's justification
for seeking more time to comply with the requirements of this Order.
Licensees shall notify the NRC's Headquarters Operations Office at
301-816-5100 within 24 hours if the results from an FBI identification
and criminal history records check indicate that an individual is
identified on the FBI's Terrorist Screening Data Base.
B
1. Except as provided in paragraph E for individuals who are
currently approved for unescorted access, the Licensee shall grant
access to radioactive material in Attachment B to the IC Order in
accordance with the requirements of IC.1. of the IC Order and the
requirements of this Order.
2. The T&R Official, if he/she does not require unescorted access,
must be deemed trustworthy and reliable by the Licensee in accordance
with the requirements of IC.1. of the IC Order before making a
determination regarding the trustworthiness and reliability of another
individual. If the T&R Official requires unescorted access, the
Licensee must consider the results of fingerprinting and the review of
an FBI identification and criminal history records check as a component
in approving a T&R Official.
C. Prior to requesting fingerprints from any individual, the
Licensee shall provide a copy of this Order to that person.
D. Upon receipt of the results of FBI identification and criminal
history records checks, the Licensee shall control such information as
specified in the ``Protection of Information'' section of Attachment 1
of this Order and in requirement IC.5 of the IC Order.
E. The Licensee shall make determinations on continued unescorted
access for persons currently granted unescorted access, within ninety
(90) days of the date of this Order based upon the results of the
fingerprinting and FBI identification and criminal history records
check. The Licensee may allow any individual who currently has
unescorted access to certain radioactive materials in accordance with
the IC Order to continue to have unescorted access, pending a decision
by the T&R Official. After ninety (90) days of the date of this Order,
no individual may have unescorted access to radioactive materials
without a determination by the T&R Official (based upon fingerprinting,
an FBI identification and
[[Page 66166]]
criminal history records check and a previous trustworthiness and
reliability determination) that the individual may have unescorted
access to such materials.
F. These requirements do not apply to radioactive material
contained in spent nuclear fuel.
Licensee responses to A.1, A.2., A.3. and A.4., above shall be
submitted to the Director, Division of Waste Management and
Environmental Protection, Office of Federal and State Materials and
Environmental Management Programs, U.S. Nuclear Regulatory Commission,
Washington, DC 20555. Licensee responses shall be marked as ``Withhold
Under 10 CFR 2.390.''
The Director, Division of Waste Management and Environmental
Protection, Office of Federal and State Materials and Environmental
Management Programs, may, in writing, relax or rescind any of the above
conditions upon demonstration of good cause by the Licensee.
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 five (25) 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 five (25) 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, Division
of Waste Management and Environmental Protection, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, and include a statement of
good cause for the extension.
The answer may consent to this Order. 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, (72 FR 49139,
Aug. 28, 2007). 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 an exemption in
accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least
ten (10) days prior to the filing deadline, the participant should
contact the Office of the Secretary by e-mail at
[email protected], or by telephone at (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 proceeding in which it is participating; and
(2) advise the Secretary that the participant will be submitting a
request or petition for hearing (even in instances in which the
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the
Secretary will establish an electronic docket for the hearing in this
proceeding if the Secretary has not already established an electronic
docket.
Information about applying for a digital ID certificate is
available on NRC's public website at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing
the E-Submittal server are detailed in NRC's ``Guidance for Electronic
Submission,'' which is available on the agency's public Web site at
http://www.nrc.gov/site-help/e-submittals.html. Participants may
attempt to use other software not listed on the website, but should
note that the NRC's E-Filing system does not support unlisted software,
and the NRC Help Desk will not be able to offer assistance in using
unlisted software.
If a participant is electronically submitting a document to the NRC
in accordance with the E-Filing rule, the participant must file the
document using the NRC's on-line, web-based submission form. In order
to serve documents through EIE, users will be required to install a web
browser plug-in from the NRC Web site. Further information on the web-
based submission form, including the installation of the Web browser
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant can then submit a request for
hearing or petition for leave to intervene. 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
documents are submitted through the NRC's E-Filing system. To be
timely, an electronic filing must be submitted to the E-Filing 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
E-Filing 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
documents on those participants separately. Therefore, applicants and
other participants (or their counsel or representative) must apply for
and receive a digital ID certificate before a hearing request/petition
to intervene is filed so that they can obtain access to the document
via the E-Filing system.
A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta-System
Help Desk through the ``Contact Us'' link located on the NRC Web site
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at
[email protected], or by a toll-free call at (866) 672-7640. The
NRC Meta-System Help Desk is available between 8 a.m. and 8 p.m.,
Eastern Time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not
submitting documents electronically must file an exemption request, 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
[[Page 66167]]
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. A presiding officer, having granted an
exemption request from using E-Filing, may require a participant or
party to use E-Filing if the presiding officer subsequently determines
that the reason for granting the exemption from use of E-Filing no
longer exists.
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, or the 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, unless an NRC regulation or other law requires submission of
such information. 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 submission.
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-five (25) 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 23rd day of November 2009.
For the Nuclear Regulatory Commission.
Larry W. Camper,
Director, Division of Waste Management and Environmental Protection,
Office of Federal and State Materials and Environmental Management
Programs.
Attachment A:--Increased Controls Licensee List
EA-09-204
Dresden 1
Exelon Generation Company, LLC
License No.: DPR-2
Docket No. : 050-00010
Fermi 1
Detroit Edison Company
License No.: DPR-9
Docket No. : 050-00016
GE BWR
General Electric Company
License No.: DPR-1
Docket No. : 050-00018
Humboldt 3
Pacific Gas and Electric Company
License No.: DPR-7
Docket No.: 050-00133
Indian Point-1
Entergy Nuclear Operations
License No.: DPR-5
Docket No.: 050-00003
Lacrosse
Dairyland Power Cooperative
License No.: DPR-45
Docket No.: 050-00409
Millstone 1
Dominion Nuclear Connecticut, Inc.
License No.: DPR-21
Docket No.: 050-00245
Nuclear Ship Savannah
U. S. Department of Transportation
License No.: NS-1
Docket No.: 050-00238
Peach Bottom 1
Exelon Nuclear
License No.: DPR-12
Docket No.: 050-00171
Rancho Seco
Sacramento Municipal Utility District
License No.: DPR-54
Docket No.: 050-00312
San Onofre 1
Southern California Edison
License No.: DPR-13
Docket No.: 050-00206
TMI 2
FirstEnergy Corporation
License No.: DPR-73
Docket No.: 050-00320
Zion 1 & 2
Exelon Generation Company, LLC
License No.: DPR-39 and DPR-48
Docket No.: 050-00295 and 050-00304
Attachment 1: Specific Requirements Pertaining to Fingerprinting and
Criminal History Records Checks
1. Each Licensee subject to the provisions of this attachment
shall fingerprint each individual who is seeking or permitted
unescorted access to risk significant radioactive materials equal to
or greater than the quantities listed in Attachment B to the IC
Order (EA-09-204). The Licensee shall review and use the information
received from the Federal Bureau of Investigation (FBI)
identification and criminal history records check 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 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 73.61, or any person who has been favorably-
decided by a U.S. Government program involving fingerprinting and an
FBI identification and criminal history records 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 clearances in accordance with
27 CFR Part
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555, Health and Human Services security risk assessments for
possession and use of select agents and toxins in accordance with 42
CFR Part 73, Hazardous Material security threat assessment for
hazardous material endorsement to commercial drivers license in
accordance with 49 CFR Part 1572, Customs and Border Patrol's Free
and Secure Trade Program \1\) within the last five (5) calendar
years, or any person who has an active federal security clearance
(provided in the latter two cases that they make available the
appropriate documentation \2\). Written confirmation from the
Agency/employer which granted the federal security clearance or
reviewed the FBI criminal history records results based upon a
fingerprint identification check must be provided. The Licensee must
retain this documentation for a period of three (3) years from the
date the individual no longer requires unescorted access to certain
radioactive material 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.
\2\ This documentation must allow the T&R Official to verify
that the individual has fulfilled the unescorted access requirements
of Section 149 of the AEA by submitting to fingerprinting and an FBI
identification and criminal history records check.
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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. Additionally, the Licensee shall submit a certification of the
trustworthiness and reliability of the T&R Official as determined in
accordance with paragraph B.2 of this Order. The Licensee shall
review the information received from the FBI and consider it, in
conjunction with the trustworthiness and reliability requirements of
the IC Order, in making a determination whether to grant unescorted
access to certain radioactive materials.
5. 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 unescorted access to risk
significant radioactive materials equal to or greater than the
quantities listed in Attachment B.
6. The Licensee shall document the basis for its determination
whether to grant, or continue to allow unescorted access to risk
significant radioactive materials equal to or greater than the
quantities listed in Attachment B.
Prohibitions
A Licensee shall not base a final determination to deny an
individual unescorted access to certain radioactive material 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.
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 Federal Bureau of Investigation, Criminal Justice
Information Services (CJIS) Division, ATTN: SCU, Mod.D-2, 1000
Custer Hollow Road, Clarksburg, WV 26306 (as set forth in 28 CFR
Part 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 CJIS 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
identification and criminal history records check after the record
is made available for his/her review. The Licensee may make a final
unescorted access to certain radioactive material determination
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 unescorted access to certain
radioactive material, the Licensee shall provide the individual its
documented basis for denial. Unescorted access to certain
radioactive material 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 unescorted access to certain radioactive
material. 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 check 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 from the FBI, or a copy if the individual's file has
been transferred, for three (3) years after termination of
employment or determination of unescorted access to certain
radioactive material (whether unescorted access was approved or
denied). 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. E9-29653 Filed 12-11-09; 8:45 am]
BILLING CODE 7590-01-P