[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

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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

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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
------------------------------------------------------------------------
                                                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.
---------------------------------------------------------------------------

    \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