[Federal Register Volume 75, Number 1 (Monday, January 4, 2010)]
[Notices]
[Pages 160-166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31147]
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NUCLEAR REGULATORY COMMISSION
[NRC-2009-0577; EA-09-293]
In the Matter of: Certain Licensees Requesting Unescorted Access
to Radioactive Material; Order Imposing Trustworthiness and Reliability
Requirements for Unescorted Access to Certain Radioactive Material
(Effective Immediately)
I
The Licensees identified in Attachment 1 \1\ to this Order hold
licenses issued in accordance with the Atomic Energy Act (AEA) of 1954,
as amended, by the U.S. Nuclear Regulatory Commission (NRC or
Commission) or an Agreement State, authorizing them to perform services
on devices containing certain radioactive material for customers
licensed by the NRC or an Agreement State to possess and use certain
quantities of the radioactive materials listed in Attachment 2 to this
Order. 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 State 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.
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\1\ Attachment 1 contains sensitive information and will not be
released to the public.
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II
Subsequent to the terrorist events of September 11, 2001, the NRC
issued immediately effective security Orders to NRC and Agreement State
Licensees under the Commission's authority to protect the common
defense and security of the nation. The Orders required certain
manufacturing and distribution (M&D) Licensees to implement Additional
Security Measures (ASMs) for the radioactive materials listed in
Attachment 2 to this Order (the radionuclides of concern), to
supplement the existing regulatory requirements. The ASMs included
requirements for determining the trustworthiness and reliability of
individuals that require unescorted access to the radionuclides of
concern. Section 652 of the Energy Policy Act of 2005, which became law
on August 8, 2005, amended Section 149 of the AEA to require
fingerprinting and a Federal Bureau of Investigation (FBI)
[[Page 161]]
identification and criminal history records check 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 security as to warrant fingerprinting and
background checks.'' Section 149 of the AEA also requires that ``all
fingerprints obtained by a Licensee or applicant * * * shall be
submitted to the Attorney General of the United States through the
Commission for identification and a criminal history records check.''
As a result, the trustworthiness and reliability requirements of the
ASMs were updated and the M&D Licensees were issued additional Orders
imposing the new fingerprinting requirements.
In late 2005, the NRC and the Agreement States began issuing
Increased Controls (IC) Orders or other legally binding requirements to
Licensees who are authorized to possess the radionuclides of concern.
Paragraph IC 1.c of the IC requirements stated that ``service providers
shall be escorted unless determined to be trustworthy and reliable by
an NRC-required background investigation as an employee of a
Manufacturing and Distribution Licensee.'' Starting in December 2007,
the NRC and the Agreement States began issuing additional Orders or
other legally binding requirements to the IC Licensees, imposing the
new fingerprinting requirements. In the December 2007 Fingerprinting
Order, Paragraph IC 1.c of the IC requirements was superseded by the
requirement that ``Service provider Licensee employees shall be
escorted unless determined to be trustworthy and reliable by an NRC-
required background investigation.'' However, NRC did not require
background investigations for non-M&D service provider Licensees.
Consequently, only service representatives of certain M&D Licensees may
be granted unescorted access to the radionuclides of concern at an IC
Licensee facility, even though non-M&D service provider Licensees
provide similar services and have the same degree of knowledge of the
devices they service as M&D Licensees. To maintain appropriate access
control to the radionuclides of concern, and to allow M&D Licensees and
non-M&D service provider Licensees to have the same level of access at
customers' facilities, NRC is imposing trustworthiness and reliability
requirements for unescorted access to radionuclides of concern, as set
forth in this Order. These requirements apply to non-M&D service
provider Licensees that request and have a need for unescorted access
by their representatives to the radionuclides of concern at IC Licensee
facilities. These trustworthiness and reliability requirements are
equivalent to the requirements for M&D Licensees who perform services
requiring unescorted access to the radionuclides of concern.
In order to provide assurance that non-M&D service provider
Licensees are implementing prudent measures to achieve a consistent
level of protection for service providers requiring unescorted access
to the radionuclides of concern at IC Licensee facilities, all
Licensees identified in Attachment 1 to this Order shall implement the
requirements of this Order. In addition, pursuant to 10 CFR 2.202,
because of potentially significant adverse impacts associated with a
deliberate malevolent act by an individual with unescorted access to
the radionuclides of concern, I find that the public health, safety,
and interest require this Order to 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 20, 30 and 33,
it is hereby ordered, effective immediately, that all licensees
identified in attachment 1 to this order comply with the requirements
set forth in this order.
A.1. The Licensee shall establish and maintain a fingerprinting
program that meets the requirements of Attachment 3 to this Order for
individuals that require unescorted access to the radionuclides of
concern. The Licensee shall complete implementation of the requirements
of Attachment 3 to this Order within one hundred eighty (180) days of
the date of this Order, or before (1) providing written verification to
another Licensee subject to the IC requirements, or (2) attesting to or
certifying the trustworthiness and reliability of a service provider
for unescorted access to the radionuclides of concern at a customer's
facility.
A.2. Within ninety (90) days of the date of this Order, the
Licensee shall designate a ``Reviewing Official'' for determining
unescorted access to the radioactive materials as listed in Attachment
2 to this Order by other individuals. The designated Reviewing Official
shall be determined to be trustworthy and reliable by the Licensee in
accordance with the requirements described in Attachment 3 to this
Order and must be permitted to have unescorted access to the
radioactive materials listed in Attachment 2 to this Order as part of
his or her job duties.
A.3. Fingerprints for unescorted access need not be taken if a
designated Reviewing Official is relieved from the fingerprinting
requirement by 10 CFR 73.61, or has been favorably decided by a U.S.
Government program involving fingerprinting and a FBI identification
and criminal history records check \2\ within the last five (5) years,
or for any person who has an active federal security clearance
(provided in the latter two cases that they make available the
appropriate documentation \3\). The Licensee may provide, for NRC
review, written confirmation from the Agency/employer which granted the
federal security clearance or reviewed the FBI identification and
criminal history records results based upon a fingerprint
identification check. The NRC will determine whether, based on the
written confirmation, the designated Reviewing Official may have
unescorted access to the radioactive materials listed in Attachment 2
to this Order, and therefore, be permitted to serve as the Licensee's
Reviewing Official.\4\
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\2\ Examples of such programs include (1) National Agency Check,
(2) Transportation Worker Identification Credentials in accordance
with 49 CFR Part 1572, (3) Bureau of Alcohol, Tobacco, Firearms, and
Explosives background checks and clearances in accordance with 27
CFR Part 555, (4) Health and Human Services security risk
assessments for possession and use of select agents and toxins in
accordance with 42 CFR Part 73, and (5) 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 (FAST) Program. 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.
\3\ This documentation must allow the NRC or NRC-approved
Reviewing Official to verify that the individual has fulfilled the
unescorted access requirements of Section 149 of the AEA by
submitting to fingerprinting and a FBI identification and criminal
history records check.
\4\ The NRC's determination of this individual's unescorted
access to the radionuclides of concern in accordance with the
process described in Enclosure 4 to the transmittal letter of this
Order is an administrative determination that is outside the scope
of this Order.
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A.4. A designated Reviewing Official may not review the results
from the FBI identification and criminal history records checks or make
unescorted access determinations until the NRC has approved the
individual as the Licensee's Reviewing Official.
A.5. The NRC will determine whether this individual (or any
subsequent
[[Page 162]]
Reviewing Official) may have unescorted access to the radionuclides of
concern, and therefore, will be permitted to serve as the Licensee's
Reviewing Official. The NRC-approved Reviewing Official shall be the
recipient of the results of the FBI identification and criminal history
records check of the other Licensee employees requiring unescorted
access to the radioactive materials listed in Attachment 2 to this
Order, and shall control such information as specified in the
``Protection of Information'' section of Attachment 3 to this Order.
A.6. The NRC-approved Reviewing Official shall determine whether an
individual may have unescorted access to radioactive materials that
equal or exceed the quantities in Attachment 2 to this Order, in
accordance with the requirements described in Attachment 3 to this
Order.
B. Prior to requesting fingerprints from a Licensee employee, a
copy of this Order shall be provided to that person.
C.1. 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,
including Attachment 3 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 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.
C.2. The Licensee shall complete implementation of the requirements
of Attachment 3 to this Order within one hundred eighty (180) days of
the date of this Order.
C.3. The Licensee shall report to the Commission when they have
achieved full compliance with the requirements described in Attachment
3 to this Order. The report shall be made within twenty-five (25) days
after full compliance has been achieved.
C.4. If during the implementation period of this Order, the
Licensee is unable, due to circumstances beyond its control, to meet
the requirements of this Order by June 14, 2010, the Licensee shall
request the Commission, in writing, the need for an extension of time
to implement the requirements. The request shall provide the Licensee's
justification for seeking additional time to comply with the
requirements of this Order.
C.5. Licensees shall notify the NRC's Headquarters Operations
Office at 301-816-5100 within 24 hours if the results from a FBI
identification and criminal history records check indicate that an
individual is identified on the FBI's Terrorist Screening Data Base.
Licensee responses to C.1, C.2., C.3., and C.4. above shall be
submitted in writing to the Director, Division of Materials Safety and
State Agreements, Office of Federal and State Materials and
Environmental Management Programs, U.S. Nuclear Regulatory Commission,
Washington, DC 20555. Licensee responses shall be marked as ``Security-
Related Information--Withhold Under 10 CFR 2.390.''
The Director, Division of Materials Safety and State Agreements,
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 Materials Safety and State Agreements, 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,
August 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 Web site 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 Web site, but should
note that the NRC's E-Filing system does not support unlisted software,
and the NRC Meta System 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 online, 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
[[Page 163]]
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 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 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.
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 16th day of December 2009.
For the Nuclear Regulatory Commission.
Robert J. Lewis,
Director, Division of Materials Safety and State Agreements, Office of
Federal and State Materials, and Environmental Management Programs.
Attachment 1: List of Applicable Materials Licensees
Redacted
Attachment 2: Table 1: Radionuclides of Concern
Table 1--Radionuclides of Concern
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Quantity of Quantity of
Radionuclide concern \1\ concern \2\
(TBq) (Ci)
------------------------------------------------------------------------
Am-241........................................ 0.6 16
Am-241/Be..................................... 0.6 16
Cf-252........................................ 0.2 5.4
Cm-244........................................ 0.5 14
Co-60......................................... 0.3 8.1
Cs-137........................................ 1 27
Gd-153........................................ 10 270
Ir-192........................................ 0.8 22
Pm-147........................................ 400 11,000
Pu-238........................................ 0.6 16
Pu-239/Be..................................... 0.6 16
Ra-226........................................ 0.4 11
Se75.......................................... 2 54
Sr-90 (Y-90).................................. 10 270
Tm-170........................................ 200 5,400
Yb-169........................................ 3 81
Combinations of radioactive materials listed (\4\)
above \3\....................................
------------------------------------------------------------------------
\1\ The aggregate activity of multiple, collocated sources of the same
radionuclide should be included when the total activity equals or
exceeds the quantity of concern.
\2\ The primary values used for compliance with this Order are TBq. The
curie (Ci) values are rounded to two significant figures for
informational purposes only.
\3\ Radioactive materials are to be considered aggregated or collocated
if breaching a common physical security barrier (e.g., a locked door
at the entrance to a storage room) would allow access to the
radioactive material or devices containing the radioactive material.
\4\ If several radionuclides are aggregated, the sum of the ratios of
the activity of each source, i of radionuclide, n, A(i,n), to the
quantity of concern for radionuclide n, Q(n), listed for that
radionuclide equals or exceeds one. [(aggregated source activity for
radionuclide A) / (quantity of concern for radionuclide A)] +
[(aggregated source activity for radionuclide B) / (quantity of
concern for radionuclide B)] + etc. * * * [gteqt]1.
Guidance for Aggregation of Sources
NRC supports the use of the International Atomic Energy Agency's
(IAEA) source categorization methodology as defined in IAEA Safety
[[Page 164]]
Standards Series No. RS-G-1.9, ``Categorization of Radioactive
Sources,'' (2005) (see http://www-pub.iaea.org/MTCD/publications/PDF/Pub1227_web.pdf) and as endorsed by the agency's Code of Conduct for
the Safety and Security of Radioactive Sources, January 2004 (see
http://www-pub.iaea.org/MTCD/publications/PDF/Code-2004_web.pdf). The
Code defines a three-tiered source categorization scheme. Category 1
corresponds to the largest source strength (equal to or greater than
100 times the quantity of concern values listed in Table 1.) and
Category 3, the smallest (equal or exceeding one-tenth the quantity of
concern values listed in Table 1.). Additional security measures apply
to sources that are equal to or greater than the quantity of concern
values listed in Table 1, plus aggregations of smaller sources that are
equal to or greater than the quantities in Table 1. Aggregation only
applies to sources that are collocated.
Licensees who possess individual sources in total quantities that
equal or exceed the Table 1 quantities are required to implement
additional security measures. Where there are many small (less than the
quantity of concern values) collocated sources whose total aggregate
activity equals or exceeds the Table 1 values, Licensees are to
implement additional security measures.
Some source handling or storage activities may cover several
buildings, or several locations within specific buildings. The question
then becomes, ``When are sources considered collocated for purposes of
aggregation?'' For purposes of the additional controls, sources are
considered collocated if breaching a single barrier (e.g., a locked
door at the entrance to a storage room) would allow access to the
sources. Sources behind an outer barrier should be aggregated
separately from those behind an inner barrier (e.g., a locked source
safe inside the locked storage room). However, if both barriers are
simultaneously open, then all sources within these two barriers are
considered to be collocated. This logic should be continued for other
barriers within or behind the inner barrier.
The following example illustrates the point: A lockable room has
sources stored in it. Inside the lockable room, there are two shielded
safes with additional sources in them. Inventories are as follows:
The room has the following sources outside the safes: Cf-252,
0.12 TBq (3.2 Ci); Co-60, 0.18 TBq (4.9 Ci), and Pu-238, 0.3 TBq
(8.1 Ci). Application of the unity rule yields: (0.12 / 0.2) + (0.18
/ 0.3) + (0.3 / 0.6) = 0.6 + 0.6 + 0.5 = 1.7. Therefore, the sources
would require additional security measures.
Shielded safe 1 has a 1.9 TBq (51 Ci) Cs-137 source and
a 0.8 TBq (22 Ci) Am-241 source. In this case, the sources would
require additional security measures, regardless of location,
because they each exceed the quantities in Table 1.
Shielded safe 2 has two Ir-192 sources, each having an
activity of 0.3 TBq (8.1 Ci). In this case, the sources would not
require additional security measures while locked in the safe. The
combined activity does not exceed the threshold quantity 0.8 TBq (22
Ci).
Because certain barriers may cease to exist during source handling
operations (e.g., a storage location may be unlocked during periods of
active source usage), Licensees should, to the extent practicable,
consider two modes of source usage--``operations'' (active source
usage) and ``shutdown'' (source storage mode). Whichever mode results
in the greatest inventory (considering barrier status) would require
additional security measures for each location.
Use the following method to determine which sources of radioactive
material require implementation of the additional security measures:
Include any single source equal to or greater than the
quantity of concern in Table.
Include multiple collocated sources of the same
radionuclide when the combined quantity equals or exceeds the quantity
of concern.
For combinations of radionuclides, include multiple
collocated sources of different radionuclides when the aggregate
quantities satisfy the following unity rule: [(Amount of radionuclide
A) / (quantity of concern of radionuclide A)] + [(amount of
radionuclide B) / (quantity of concern of radionuclide B)] + etc. * * *
[gteqt]1.
Attachment 3: Requirements for Service Provider Licensees Providing
Written Verification Attesting to or Certifying the Trustworthiness and
Reliability of Service Providers for Unescorted Access to Certain
Radioactive Material at Customer Facilities, Including Requirements for
Fingerprinting and Criminal History Checks
A. General Requirements
Licensees subject to the provisions of this Order shall comply with
the requirements of this attachment. The term ``certain radioactive
material'' means the radionuclides in quantities equal to or greater
than the quantities listed in Attachment 2 to this Order.
1. The Licensee shall provide the customer's facility written
verification attesting to or certifying the trustworthiness and
reliability of an individual as a service provider only for employees
the Licensee has approved in writing (see requirement A.3 below). The
Licensee shall request unescorted access to certain radioactive
material at customer licensee facilities only for approved service
providers that require the unescorted access in order to perform a job
duty.
2. The trustworthiness, reliability, and true identity of a service
provider shall be determined based on a background investigation. The
background investigation shall address at least the past three (3)
years, and as a minimum, include fingerprinting and a Federal Bureau of
Investigation (FBI) criminal history records check as required in
Section B, verification of employment history, education, and personal
references. If a service provider's employment has been less than the
required three (3) years period, educational references may be used in
lieu of employment history.
3. The Licensee shall document the basis for concluding that there
is reasonable assurance that a service provider requiring unescorted
access to certain radioactive material at a customer facility is
trustworthy and reliable, and does not constitute an unreasonable risk
for unauthorized use of the radioactive material. The Licensee shall
maintain a list of service providers approved for unescorted access to
certain radioactive material.
4. The Licensee shall retain documentation regarding the
trustworthiness and reliability of approved service providers for three
years after the individual no longer requires unescorted access to
certain radioactive material associated with the Licensee's activities.
5. Each time the Licensee revises the list of approved service
providers (see requirement 3 above), the Licensee shall retain the
previous list for three years after the revision.
6. The Licensee shall provide to a customer written certification
for each service provider for whom unescorted access to certain
radioactive material at the customer's facility is required and
requested. The written certification shall be dated and signed by the
Reviewing Official. A new written certification is not required if an
individual service provider returns to the customer facility within
three years, provided the customer has retained the prior
certification.
B. Specific Requirements Pertaining to Fingerprinting and Criminal
History Records Checks
1. The Licensee shall fingerprint each service provider to be
approved for
[[Page 165]]
unescorted access to certain radioactive materials following the
procedures outlined in Enclosure 3 of the transmittal letter. The
Licensee shall review and use the information received from the 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 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 \5\) within the last five (5) years, or any person
who has an active federal security clearance (provided in the latter
two cases that they make available the appropriate documentation \6\).
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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\5\ 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.
\6\ This documentation must allow the Reviewing 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.
---------------------------------------------------------------------------
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 trustworthiness and
reliability requirements of Section A of this attachment, in making a
determination whether to approve and certify the individual for
unescorted access to certain radioactive materials. 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 certain radioactive materials.
6. The Licensee shall document the basis for its determination
whether to approve the individual for unescorted access to certain
radioactive materials.
C. Prohibitions
A Licensee shall not base a final determination to not provide
certification for unescorted access to certain radioactive material for
an individual 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.
D. 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 Investigation
Identification Division, Washington, DC 20537-9700 (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 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 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.
E. 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
whether to verify the individual for unescorted access to certain
radioactive material. No individual authorized to have access to the
information may re-disseminate the
[[Page 166]]
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 fingerprints and criminal history
records from the FBI, or a copy if the individual's file has been
transferred:
a. For three (3) years after the individual no longer requires
unescorted access, or
b. For three (3) years after unescorted access to certain
radioactive material was 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. E9-31147 Filed 12-31-09; 8:45 am]
BILLING CODE 7590-01-P