[Federal Register Volume 77, Number 92 (Friday, May 11, 2012)]
[Rules and Regulations]
[Pages 27561-27574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11293]



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  Federal Register / Vol. 77, No. 92 / Friday, May 11, 2012 / Rules and 
Regulations  

[[Page 27561]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

[NRC-2008-0619]
RIN 3150-AI25


Requirements for Fingerprint-Based Criminal History Records 
Checks for Individuals Seeking Unescorted Access to Non-Power Reactors 
(Research or Test Reactors)

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is amending its regulations to require non-power reactor (NPR) 
licensees to obtain fingerprint-based criminal history records checks 
before granting any individual unescorted access to their facilities. 
This action complies with the requirements of Section 652 of the Energy 
Policy Act of 2005 (EPAct), which amended Section 149 of the Atomic 
Energy Act of 1954, as amended (AEA), to require fingerprinting and a 
Federal Bureau of Investigation (FBI) identification and criminal 
history records checks of individuals permitted unescorted access to a 
utilization facility.

DATES: This rule is effective November 7, 2012.

ADDRESSES: You can access publicly available documents related to this 
rulemaking using the following methods:
     NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are online at the NRC's library at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, which 
provides text and image files of NRC's public documents. If you do not 
have access to ADAMS or if there are problems in accessing the 
documents located in ADAMS, contact the NRC's PDR reference staff at 1-
800-397-4209, 301-415-4737, or by email to [email protected].
     Federal rulemaking Web site: Public comments and 
supporting materials related to this final rule can be found at http://www.regulations.gov by searching on Docket ID: NRC-2008-0619. Address 
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; email: [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Scott C. Sloan, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone: 301-415-1619, email: [email protected]; or Ms. 
Beth Reed, Office of Nuclear Reactor Regulation, telephone: 301-415-
2130, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background
II. Public Comments on Proposed Rule
III. Discussion
    A. General
    B. Relaxing of Orders
    C. Implementation Plans
IV. Paragraph-by-Paragraph Analysis
V. Availability of Documents
VI. Criminal Penalties
VII. Agreement State Compatibility
VIII. Plain Writing
IX. Voluntary Consensus Standards
X. Finding of No Significant Environmental Impact: Availability
XI. Paperwork Reduction Act Statement
XII. Public Protection Notification
XIII. Regulatory Analysis: Availability
XIV. Regulatory Flexibility Certification
XV. Backfit Analysis
XVI. Congressional Review Act

I. Background

    Before the terrorist actions of September 11, 2001, the NRC 
regulations in Title 10 of the Code of Federal Regulations (10 CFR), 
Section 73.60, and 10 CFR 73.67 imposed physical protection 
requirements on NPRs \1\ that included measures for storing and using 
special nuclear material (SNM) in controlled access areas, monitoring 
the controlled access areas for unauthorized activities, and ensuring a 
response to all unauthorized activities to protect SNM from theft or 
diversion. Subsequent to September 11, 2001, the NRC evaluated the 
adequacy of security at NPRs and considered whether additional actions 
should be taken to help ensure the trustworthiness and reliability of 
individuals with unescorted access to licensees' facilities. The NPRs 
were advised to consider taking immediate additional precautions, 
including observation of activities within their facility. Several NPRs 
have implemented additional security measures. The NRC evaluated these 
additional measures at each facility during the remainder of 2001.
---------------------------------------------------------------------------

    \1\ All currently licensed research and test reactors (RTR) are 
non-power reactors. The NRC's regulations consider all RTRs a subset 
of non-power reactors (NPRs). The NPRs are defined in 10 CFR 50.2 
and include utilization facilities licensed under Atomic Energy Act 
(AEA) Section 103 and 104. The use of the term NPR in place of RTR 
properly incorporates all Class 103 and Class 104 licensees defined 
in Sec. Sec.  50.21 and 50.22 as utilization facilities, although 
there are currently no NPR licensees that are not RTRs. Therefore, 
the use of the term NPRs includes RTRs in this and all related 
rulemaking documents.
---------------------------------------------------------------------------

    From 2002 through 2004, the NPRs voluntarily implemented 
compensatory measures that included site-specific background 
investigations for individuals granted unescorted access to their 
facility. Depending on local restrictions, such as university rules, 
some of these background investigations included provisions for FBI 
fingerprint-based criminal history records checks, while checks at 
other NPRs include provisions for local or State law enforcement 
fingerprint-based criminal history records checks. Investigations at 
some NPRs did not include any fingerprinting. The NRC has also 
conducted security assessments at certain NPRs, which helped to 
identify risk-significant areas and materials.
    Section 652 of the EPAct, enacted on August 8, 2005, amended 
Section 149 of the AEA to require fingerprinting and FBI identification 
and criminal history records checks for individuals ``permitted 
unescorted access to a utilization facility.'' The NPRs are included 
within the definition of what constitutes a utilization facility. 
Therefore, consistent with the requirement set forth in Section 149 of 
the AEA, any person granted unescorted access to an NPR must be 
fingerprinted

[[Page 27562]]

and have those fingerprints submitted to the Attorney General of the 
United States through the Commission for identification and a criminal 
history records check.
    In SECY-05-0201, ``Implementation of the Energy Policy Act of 
2005,'' dated October 31, 2005, the NRC staff informed the Commission 
of its plan for implementing the NRC's responsibilities under the 
EPAct. The Commission approved the staff's recommendations in a Staff 
Requirements Memorandum (SRM) dated January 5, 2006, and directed the 
staff to recommend appropriate interim regulatory actions that the NRC 
should implement while it developed the generic requirements for 
granting unescorted access, including the provisions in Section 652 of 
the EPAct pertaining to fingerprinting.
    In SECY-07-0011, ``Interim Implementation of Fingerprinting 
Requirements in Section 652 of the Energy Policy Act of 2005,'' dated 
January 12, 2007, the NRC staff provided information and 
recommendations to the Commission on its EPAct interim implementation 
plan. In an SRM dated March 12, 2007, the Commission directed the NRC 
staff to expeditiously develop a definition of ``unescorted access'' 
that would apply to NPR licensees and issue orders to NPR licensees 
requiring fingerprinting for individuals that fall within this 
definition. In order to ensure compliance with Section 104c of the AEA, 
the NRC staff was directed to impose only the minimum amount of 
regulation needed for NPR licensees. The Commission also directed the 
NRC staff to proceed with a rulemaking to determine if additional 
personnel should be fingerprinted.
    In response to the Commission's March 12, 2007, directive, the NRC 
imposed fingerprinting requirements for unescorted access to special 
nuclear material on the applicable NPR licensees by order (Order EA-07-
074, ``Issuance of Order Imposing Fingerprinting and Criminal History 
Records Check Requirements for Unescorted Access to Research and Test 
Reactors'' (72 FR 25337; May 4, 2007), and Order EA-07-098, ``Issuance 
of Order Imposing Fingerprinting and Criminal History Records Check 
Requirements for Unescorted Access to the General Atomics' Research and 
Test Reactors'' (72 FR 44590; August 8, 2007)). Specifically, the 
orders state that:

    An individual who is granted ``unescorted access'' could 
exercise physical control over the special nuclear material 
possessed by the licensee, which would be of significance to the 
common defense and security or would adversely affect the health and 
safety of the public, such that the special nuclear material could 
be used or removed in an unauthorized manner without detection, 
assessment, or response by systems or persons designated to detect, 
assess or respond to such unauthorized use or removal.

    In implementing the requirement of the EPAct on an interim basis, 
the orders were issued requiring fingerprinting only for individuals 
with unescorted access to risk-significant materials (e.g., fuel), 
within the research and test reactor facilities. Licensees were 
required to submit fingerprints of individuals who were seeking or 
currently had unescorted access. Individuals who had previously been 
subjected to fingerprinting that would satisfy the requirements for 
unescorted access (e.g., access to safeguards information (SGI)) did 
not need to be fingerprinted again. These orders required that a 
reviewing official consider the information received from the FBI in 
conjunction with the other requirements for unescorted access to 
determine whether an individual may be granted or allowed continued 
unescorted access. The reviewing official was allowed to be the same 
official previously approved by the NRC for the SGI order (Order EA-06-
203, ``Issuance of Order Imposing Fingerprinting and Criminal History 
Records Check Requirements for Access to Safeguards Information,'' 
dated September 29, 2006; ADAMS Accession No. ML061510049) that 
implemented the EPAct fingerprinting and criminal history records check 
requirements for individuals who seek access to SGI.\2\ The unescorted 
access order provided that an NRC-approved reviewing official was the 
only individual who could make the unescorted access determination.
---------------------------------------------------------------------------

    \2\ The Safeguards Information orders were incorporated into 10 
CFR part 73 on October 24, 2008 (73 FR 63546).
---------------------------------------------------------------------------

Advance Notice of Proposed Rulemaking (ANPR) and Proposed Rule

    On April 14, 2009 (74 FR 17115), the NRC published an ANPR to 
obtain stakeholder views on the issues associated with the proposal to 
require fingerprinting for criminal history records checks of 
individuals permitted unescorted access to NPRs. The ANPR indicated 
that the NRC was beginning the process of establishing generic 
requirements for NPR licensees to obtain fingerprints for criminal 
history records checks of individuals granted unescorted access to 
their facilities. The ANPR was intended to inform external stakeholders 
of the options the NRC was considering for implementing the 
fingerprinting requirements for NPR licensees as a proposed rule. The 
ANPR provided interested stakeholders an opportunity to comment on the 
options under consideration by the NRC. The NRC developed a proposed 
rule based on the feedback received on the ANPR and published the 
proposed rule on July 20, 2010 (75 FR 42000).

II. Public Comments on Proposed Rule

    The public comment period for the proposed rule closed on October 
4, 2010. In response to a stakeholder's request, the Commission 
directed the staff to reopen the public comment period. On December 20, 
2010, the public comment period reopened (75 FR 79312) and subsequently 
closed on January 31, 2011. The NRC received six comment letters in 
response to its solicitation during the initial comment period and 
eleven comment letters during the reopened comment period. Many of the 
comments in these letters raised similar issues. A total of seventeen 
issues were identified, the majority of which were regarding 
differences from the 2007 NRC-issued orders, material criteria 
requirements, and area criteria requirements. The following is a 
summary of the public comments received and the NRC responses.

General Comments Received During Initial Public Comment Period

    Comment: Several commenters expressed the view that existing NRC 
security orders as implemented and inspected at their facilities are 
workable and acceptable to codify. They stated that the wording of the 
proposed rule meets the principle of codifying the existing orders. 
However, these commenters further stated that the proposed wording goes 
beyond the scope of the existing orders without adequate justification. 
According to the commenters, ``The proposed rule does not adequately 
justify the expansion of requirements based on risk (risk informed) or 
performance issues (performance based) and, therefore, does not meet 
the staff's publicly stated basis for expanding regulatory 
requirements.''
    The commenters further stated the expansion of the requirements in 
the proposed rule is counter to previously issued NRC documents 
assessing the risk and security of NPRs operated under the existing 
security orders and the cited Section 104c of the AEA provision on 
minimum regulation. ``By stated policy and statute the NRC seeks, 
wherever possible, to establish `risk-informed regulation' and to 
`impose only such minimum amount of

[[Page 27563]]

regulation.' This new regulation does not seem in keeping with those 
goals.''
    Of particular concern to the commenters is the removal of ``public 
health and safety'' and ``common defense and security'' significance 
from the requirements for protection of SNM. They stated that the 
original orders implemented security enhancements (fingerprinting and 
background checks) to protect SNM of ``significance to the common 
defense and security'' or that would ``adversely affect the health and 
safety of the public.'' The comments reiterated a previous comment made 
in response to the NRC's ANPR (74 FR 17115; April 14, 2009), that the 
existing security orders as implemented and inspected at NPR facilities 
were adequate and acceptable. Any codification should reflect the 
existing orders and should not impose new requirements or definitions.
    NRC Response: The NRC agrees that the wording of the proposed rule 
does not capture the wording of the NRC security orders verbatim. 
However, the NRC does not agree that failure to capture the wording of 
the orders verbatim constitutes an expansion of the orders' 
requirements. The NRC believes that the language of the final rule 
captures both the intent and the requirements of the security orders 
and does not constitute an expansion of the requirements with respect 
to SNM. The term, ``SNM,'' as used in the final rule language, 
maintains the same functional effect of the existing security orders' 
language and should be understood to be of such quantity and/or 
enrichment to be significant to the public health and safety and to the 
common defense and security.
    Furthermore, the NRC does not agree that the requirements imposed 
by the final rule are inconsistent with previously issued NRC documents 
assessing the risk and security of NPRs or with Section 104c of the 
AEA. The NRC recognizes that the radiological risk posed by NPRs is 
relatively low and that this low risk informs the physical security 
requirements at NPRs. The NRC believes that the final rule presents a 
framework that minimizes the impact on NPR licensees, consistent with 
the ``minimal regulation'' requirement of the AEA by identifying 
specific, risk-significant areas within NPR facilities that satisfy the 
statutory requirement to fingerprint all persons seeking unescorted 
access to utilization facilities. The final rule fingerprints as few 
people as possible while still fulfilling the statutory requirement set 
forth in Section 149 of the AEA. No changes to the rule language were 
made as a result of this comment.
    Comment: Several commenters stated that the original orders 
implemented security enhancements (fingerprinting and background 
checks) to prevent unauthorized use or removal of significant SNM 
``without detection, assessment, or response by systems or persons.'' 
The proposed rule would remove this detection and response concept and 
require fingerprinting and background checks for individuals who are 
granted access to an ``area,'' regardless of whether such access would 
allow unauthorized use or removal without detection, assessment, or 
response. The removal of the ``detection, assessment, or response'' 
language is not consistent with the background discussion of the issue 
in the proposed rule (75 FR 42003), which states the rule would make 
use of this clause and flexibility.
    NRC Response: The NRC agrees that the ``detection, assessment, or 
response'' language is not in the final rule. The purpose of this 
rulemaking is to establish requirements for fingerprinting those 
individuals seeking unescorted access to NPRs. The NRC believes that 
any individuals with unescorted access to SNM of such quantity and/or 
enrichment to be significant to the public health and safety and to the 
common defense and security or with unescorted access to vital areas at 
an NPR should be fingerprinted. The NRC believes this requirement to 
fingerprint for unescorted access to NPRs should be independent from 
the licensees' ability to ``detect, assess, or respond'' to an 
unauthorized removal of SNM. Furthermore, the NRC notes that there are 
existing detection, assessment, and response requirements set forth in 
Sec. Sec.  73.60 and 73.67. Elimination of the ``detection, assess, and 
respond'' language in the final rule does not mean that licensees are 
no longer required to comply with existing detection, assessment, or 
response requirement. No changes to the rule language were made as a 
result of this comment.
    Comment: Another commenter observed that the statements of 
consideration for the proposed rule states, ``* * * the provisions in 
this proposed rule are constructed to provide flexibility, providing 
both an `area' criterion (unescorted access to vital areas) and a 
`material' criterion (unescorted access to SNM).'' However, the 
proposed rule could be interpreted such that licensees would have to 
satisfy fingerprinting requirements for any personnel that would have 
access to vital areas or to materials. This could have the unintended 
result that licensees would have to meet both area and material 
criteria, which is at odds with the stated intention of providing 
flexibility. The commenter believes that the original 2007 NRC-issued 
security order wording should be used in Sec.  73.57(g)(2)(ii).
    NRC Response: The NRC agrees that the final rule will require 
licensees to comply with both vital area and SNM criteria when 
determining who needs to be fingerprinted when granted unescorted 
access to an NPR. The intent of the 2007 NRC-issued security orders was 
to enhance security at NPRs. The 2007 security orders limited 
fingerprinting for unescorted access at NPRs to a material criterion, 
with the understanding that the rulemaking process would evaluate 
additional fingerprinting requirements, including consideration of 
risk-significant areas. The NRC believes that inclusion of a vital area 
criterion in the final rule language is necessary to ensure adequate 
protection at NPRs.
    However, the NRC believes that few NPRs will be affected by the 
vital area criterion because few NPR facilities have vital equipment 
besides SNM (unescorted access to which already requires fingerprinting 
due to the material criterion of this rule). Additionally, the NRC 
believes the impact of the vital area criterion will be minimal because 
those licensee personnel requiring unescorted access to vital areas 
will also likely require unescorted access to SNM or access to SGI 
(both of which already require fingerprinting).
    The NRC believes that licensees will have flexibility in 
implementing the vital area criterion of this rule. Licensees are 
responsible for determining which equipment and areas within their 
facilities, if any, are vital, provided that licensees clearly document 
how they arrive at that determination, using the definitions of vital 
area and vital equipment in Sec.  73.2. No changes to the rule language 
were made in response to this comment.
    Comment: Several commenters were concerned with the addition of the 
term vital area. They stated that Sec.  73.57(g)(2)(i) of the proposed 
rule, ``adds a new requirement to establish, define and control 
unescorted access to vital areas defined per Section 73.2. The need for 
this additional regulation was not adequately justified in the proposed 
rule basis when it stated the new rule uses definitions that already 
apply to all provisions within 10 CFR Part 73 and accordingly apply to 
RTR [NPR] licensees whose security requirements are governed by 10 CFR 
Part 73 * * *.''
    The commenters assert that just because Section 149 of the AEA 
provides the Commission authority to

[[Page 27564]]

establish regulations (for fingerprinting and criminal history checks), 
that does not in itself justify the need for specific regulatory 
expansion. The recommendation is to remove the requirement for NPRs to 
evaluate for vital areas as currently defined in Sec.  73.2 for power 
reactors. The commenters stated that current definitions for unescorted 
access placed by the NRC security order and defended by the staff as 
acceptable should be maintained or adequate justification through 
analysis should be provided supporting the need for additional 
regulation of vital areas.
    NRC Response: The NRC agrees that the term ``vital area'' did not 
appear in the 2007 NRC-issued orders. However, the NRC disagrees that 
the inclusion of the vital area in the final rule language is a new 
requirement in itself. The term ``vital area'' is defined in Sec.  73.2 
as ``any area which contains vital equipment.'' ``Vital equipment,'' in 
turn, is defined in Sec.  73.2 as ``any equipment, system, device, or 
material, the failure, destruction, or release of which could directly 
or indirectly endanger the public health and safety by exposure to 
radiation. Equipment or systems which would be required to protect 
public health and safety following such failure, destruction, or 
releases are also considered to be vital.''
    The vital area concept is applicable to all utilization facilities, 
including NPRs. The NPRs that have a vital area are required to protect 
them in accordance with the requirements set forth in 10 CFR part 73. 
The only new requirement that the final rule imposes on NPR licensees 
that have a vital area is to fingerprint those individuals seeking 
unescorted access to these areas. This is consistent with the statutory 
requirement set forth in Section 149 of the AEA to fingerprint those 
individual granted unescorted access to a utilization facility.
    The NRC disagrees with the comment that the amended Section 149 of 
the AEA does not in itself justify the need for specific regulatory 
expansion. However, the NRC believes that the impact of the vital area 
criterion will be minimal because few NPR facilities have vital 
equipment besides SNM (unescorted access to which already requires 
fingerprinting due to the material criterion of this rule). 
Additionally, the NRC believes the impact of the vital area criterion 
will be minimal because few licensee personnel will require unescorted 
access to vital areas that do not require unescorted access to SNM or 
to SGI. In the development of this rulemaking, the NRC re-evaluated 
whether an area criterion, as applied to the requirements of 
fingerprinting individuals seeking unescorted access to the facility, 
is required to ensure that the fingerprinting requirements in Section 
149 of the AEA are properly and completely implemented for NPRs. The 
rule bifurcates the fingerprint requirement for ``access to a 
utilization facility'' into two criteria, which the rule terms ``SNM'' 
and ``vital area''--both of which licensees must comply with by the 
implementation date of this rule. The NRC made an affirmative 
determination that both a material criterion and an area criterion are 
required to implement the statutory requirements of Section 149 of the 
AEA for NPR facilities.
    Comment: One commenter stated, ``* * * the [statements of 
consideration] for the section [73.57(g)(2)(i)] indicates a significant 
burden for licensees when it states, `* * * implementation of this 
proposed revision may involve a significant amount of interpretation on 
the part of [NPR] licensees, the NRC expects that [NPR] licensees would 
have clear documentation to support their decisions. (75 FR 42008)' ''
    NRC Response: The NRC disagrees with the comment that a significant 
burden will be placed on licensees. The NRC believes that the final 
rule language is clear and will not require significant interpretation 
beyond that provided in the statements of consideration. The purpose of 
including well-defined area and material criteria is to lessen the need 
for licensees to interpret when fingerprinting is required. 
Furthermore, the NRC does not believe that requiring licensees to 
document their access authorization determinations poses an undue 
burden.
    Comment: Another commenter referenced the NRC's assertion in the 
proposed rule, which stated, ``The equipment, systems, devices, and 
material that fall within Section 73.2 vital equipment definition meet 
the utilization facility definition in Section 11.cc of the AEA. Hence, 
fingerprinting individuals who wish to have unescorted access to vital 
areas is ensuring that individuals permitted access to the `utilization 
facility,' as defined in the AEA, is properly implemented in the NRC's 
regulations.'' The commenter expressed the view that this statement 
implies every piece of equipment and all materials within a 
``utilization facility'' (i.e. a 10 CFR Part 50 licensed nuclear 
reactor facility) are considered vital rather than specific areas or 
equipment. The commenter stated that this statement is ``grossly 
incorrect;'' therefore, any subsequent conclusions that this statement 
intended to support should be considered questionable. The Sec.  73.2 
definition of vital equipment applied at the National Institute of 
Standards and Technology Center of Neutron Research bounds the limiting 
Maximum Hypothetical Accident (MHA) to protect the health and safety of 
the general public and the protection of SNM in quantities significant 
to the common defense and security. Vital equipment or areas have been 
defined and explained in the NRC-approved Physical Security Plan and 
reviewed for adequacy and correctness within NRC-sponsored Physical 
Security Assessments for the National Bureau of Standards Reactor. The 
definition of vital area and vital equipment as applied has been 
reviewed under the current threat environment by the NRC so there 
should be no requirement or expectation for NPR licensees to provide 
additional ``clear documentation to support their decisions'' under the 
proposed rule.
    NRC Response: The NRC agrees that not every piece of equipment 
within an NPR meets the definition of vital equipment contained within 
a vital area. As noted above, the terms ``vital equipment'' and ``vital 
area'' have specific definitions within 10 CFR part 73. The NRC 
established the vital area and SNM criteria for this rule as a means to 
define the specific areas for which individuals must be fingerprinted 
when seeking unescorted access to an NPR. Many NPR facilities are 
located within classroom or laboratory buildings with no clear 
demarcation between the reactor facility and unrelated areas. 
Therefore, many persons pass through the buildings housing NPR 
facilities who are not affiliated with the reactor itself. Instead of 
requiring fingerprinting for every person entering the building that 
houses the reactor facility, the NRC believes that the use of the vital 
area and SNM criteria to determine which personnel must get 
fingerprinted fulfills the statutory requirement of Section 149 of the 
AEA. No changes to the rule language were made as a result of this 
comment.
    Comment: Another commenter expressed the view that the phrasing of 
the proposed language in Sec.  73.57(g)(1) that states: ``No person 
shall be permitted unescorted access to a non-power reactor facility 
unless that person has been determined by an NRC-approved reviewing 
official to be trustworthy and reliable based on * * *'' could result 
in the misinterpretation that fingerprinting requirements must be met 
for access to any part of a non-power reactor facility, which is not 
the stated intention of the proposed rule. Such a misinterpretation

[[Page 27565]]

might be avoided by stating that: ``No person shall be permitted 
unescorted access at a non-power reactor facility unless that person 
has been determined by an NRC-approved reviewing official to be 
trustworthy and reliable based on * * *''
    NRC Response: The NRC disagrees with this comment. Paragraph g(2) 
of the rule identifies specific areas within the NPR facility, 
unescorted access to which requires an FBI fingerprint-based criminal 
history records check. The NRC believes that the inclusion of area and 
material criteria makes it clear when licensees must fingerprint 
individuals seeking unescorted access to the NPR. No changes to the 
rule language were made as a result of this comment.
    Comment: One commenter recommended that in addition to specifying 
the requirements in accordance with NRC order EA-07-074, the rule could 
state: ``* * * licensees may specify vital areas for which 
fingerprinting requirements must be met to ensure that those without 
unescorted access could not exercise physical control over materials.''
    NRC Response: The NRC disagrees with this comment. The NRC believes 
requiring fingerprint-based criminal history records checks for those 
seeking unescorted access to vital areas, as defined in Sec.  73.2, is 
critical in fulfilling the statutory requirements of Section 149 of the 
AEA. Use of the phrase recommended by the commenter does not convey the 
appropriate obligation of licensees to implement the requirements of 
the final rule. No changes to the rule language were made as a result 
of this comment.
    Comment: Several commenters expressed the view that Sec.  
73.57(b)(2)(i) appears subordinate and redundant to Sec.  73.61. They 
believe that Sec.  73.61 should be updated and referenced as opposed to 
adding new exceptions in Sec.  73.57.
    NRC Response: The NRC disagrees with the comment. The Commission 
previously addressed this topic on February 2, 2007 (72 FR 4948), in 
the Sec.  73.61 rulemaking, ``Relief from Fingerprinting and Criminal 
History Records Checks.'' Although similar, Sec.  73.61 provides relief 
from fingerprinting requirements for certain categories of individuals 
considered trustworthy and reliable to permit unescorted access to 
radioactive material or other property. Paragraph (b)(2)(i) of Sec.  
73.57 offers similar relief for unescorted access to utilization 
facilities or SGI. This rule is specific to non-power reactors and is 
best contained in a single section of 10 CFR part 73 (i.e., Sec.  
73.57). No changes to the rule language were made as a result of this 
comment.
    Comment: Several commenters stated that in public meetings, 
stakeholders have requested relief from the requirement that the only 
basis for unescorted access is fingerprints submitted through the NRC 
to the Attorney General; instead of allowing for other mechanisms to 
achieve the same end of providing criminal history records check from 
the FBI. The NRC has previously stated that this is required by Section 
149 of the AEA. While Section 149a does mandate this mechanism, Section 
149b states: ``The Commission, by rule, may relieve persons from the 
obligations imposed by this section, under specified terms, conditions, 
and periods, if the Commission finds that such action is consistent 
with its obligations to promote the common defense and security and to 
protect the health and safety of the public.'' The NRC has made use of 
this exception in the proposed Sec.  73.57(b)(2)(i) and in existing 
Sec.  73.61. Therefore, the mechanism for relief is within the statute, 
with the basis that the action (fingerprint and criminal history 
records checks by other mechanisms) is equivalent to Section 149a and 
therefore ``consistent with its (the NRC's) obligations to promote the 
common defense and security and to protect the health and safety of the 
public.''
    NRC Response: The NRC disagrees with the comment suggestion to the 
extent that it is asking for alternative methods to those that are set 
forth in Section 149 of the AEA. The NRC notes that Section 149 
requires the Commission to fingerprint any person granted unescorted 
access to a utilization facility. Section 149.a.(2) of the AEA requires 
that these fingerprints be submitted to the Attorney General of the 
United States through the Commission for identification and a criminal 
history records check. The Commission does not have discretion to 
deviate from this statutory requirement.
    The commenter correctly notes that Section 149.b of the AEA allows 
the Commission, by rule, to relieve persons from the obligations 
imposed by Section 149.a of the AEA. The exemptions listed in Sec.  
73.57(b)(2)(i) and in existing Sec.  73.61 include persons who are 
considered trustworthy and reliable by virtue of their occupational 
status and have either already undergone a background or criminal 
history records checks as a condition of their employment, or are 
subject to direct oversight by government authorities in their day-to-
day job functions. No changes to the rule language were made as a 
result of this comment.
    Comment: Several commenters expressed the view that the NRC has the 
authority to waive the fees it charges to process fingerprints and 
criminal history records checks. They disagreed with a previous NRC 
response that Section 149 of the AEA ``explicitly requires'' fees be 
collected and ``the NRC does not have authority to waive the fee'' (75 
FR 42003). The commenters assert that Section 149.e of the AEA states, 
``The Commission may establish and collect fees to process fingerprints 
and criminal history records under this section,'' but it does not 
require it. The commenters conclude by stating, ``The AEA Chapter 4 
also directs the Commission `to exercise its powers in a manner to * * 
* insure the continued conduct of * * * activities at support research 
facilities * * *' Therefore, waiver of any additional NRC 
administrative cost in 10 CFR 57(d)(3)(ii) for NPR institutions will 
promote both the implementation of the proposed rule and the intent of 
AEA Chapter 4.''
    NRC Response: The NRC is sensitive to the costs involved in 
regulation. The fees charged to NPR facilities for fingerprinting are 
the direct costs incurred from the U.S. Department of Justice for 
fingerprint processing. No changes to the rule language were made as a 
result of this comment.
    Comment: Several commenters stated that the readability of 10 CFR 
part 73 is problematic and gave various suggestions. They stated that 
10 CFR part 73 is a complicated part with many facets that dictate 
stringent requirements on nuclear power plants. Portions of the 
regulation are applicable to NPRs. It is a difficult part to navigate 
and determine applicability. Adding more sections to this rule, using 
the definitions section of the part and using legalistic language does 
not meet the intent of Presidential Direction on ``Plain Language in 
Government Writing'' or assist the Commission in meeting the AEA 
direction on minimal regulation of NPRs. Some improvements that could 
easily be incorporated include: (1) A clear applicability statement 
(Sec.  73.57(a)(1)) (this section currently says (in essence) that 
Sec.  73.57 is applicable to all licensees engaged in any activity 
subject to Commission regulation; this does not seem correct and does 
not promote ease of use of the regulation); (2) clear applicability for 
each paragraph section; (3) shorter sentences and/or bulleted lists to 
simplify paragraphs; and (4) less use of references to other sections 
and/or short description of the section (example

[[Page 27566]]

Sec.  73.2 (Definitions) or Sec.  73.61 (Relief from Fingerprinting)).
    NRC Response: The NRC agrees with the comment that 10 CFR part 73 
is complicated, and acknowledges that those unfamiliar with the 
regulations may have some difficulty understanding them. The NRC is 
willing to provide outreach and education to assist licensees in 
understanding the final rule. The NRC decided to use Sec.  73.57 for 
processing fingerprints so that NPR licensees and future non-power 
reactor licensees will have their fingerprints taken, handled, and 
processed in a manner consistent with other fingerprinting requirements 
including the NPR fingerprinting orders and the SGI fingerprinting 
regulations.
    From a regulatory standpoint, putting another set of fingerprinting 
requirements somewhere else in the regulations would be redundant and 
would further complicate the readability of 10 CFR part 73. No changes 
to the rule language were made as a result of this comment.
    Comment: One commenter supported the rulemaking as written, but 
expressed that any further regulations in regard to any additional 
background investigation requirements above and beyond fingerprinting 
should be left to the individual NPR licensees. The commenter felt that 
the NPR licensee is in the best position to decide what additional, if 
any, information is necessary to determine the trustworthiness and 
reliability of an individual seeking unescorted access and that this is 
consistent with the NRC's obligation under Section 104c of the AEA to 
put in place the minimum requirements for NPR licensees.
    NRC Response: The NRC agrees with this comment. Licensees are 
responsible for determining the trustworthiness and reliability of 
persons granted unescorted access to their facilities in accordance 
with the requirements set forth in the NRC regulations. The NRC does 
not anticipate adding any additional requirements beyond the 
fingerprinting requirement to NPR licensees at this time. Licensees may 
decide to review additional information beyond that required by NRC 
regulations, consistent with applicable Federal and State laws, if the 
licensee determines that such information is necessary to make an 
adequate trustworthiness and reliability determination. No changes to 
the rule language were made as a result of this comment.
    Comment: One commenter stated that the NPR facilities did not have 
a clear understanding of the consequences of the rule and requested 
that the NRC extend the comment period to coincide with the expiration 
of the proposed rule for 10 CFR part 37 on January 31, 2011.
    NRC Response: The NRC understands the comment and reopened the 
public comment period on December 20, 2010 (75 FR 79312). The extended 
comment period remained open until January 31, 2011.
    Comment: Several commenters expressed the view that employees who 
are not NRC employees but are employed by State or Federal Governments 
are subject to fingerprint/background checks as a condition of 
employment and for obtaining security clearances. Equivalence needs to 
be established to reduce the burden and expense associated with 
clearing the same individual multiple times.
    NRC Response: The NRC agrees with this comment. The final rule 
language is modified to include State and Federal non-NRC employees to 
those exempt from additional fingerprinting in Sec.  73.57(b)(2)(i).
    Comment: One commenter stated that the use of fingerprints to 
perform domestic criminal history records checks does not provide 
sufficient background information on foreign individuals seeking 
unescorted access and gives the illusion of a thorough check, when only 
a fraction of the individual's criminal history may be covered by U.S. 
records. The commenter recommended the criminal history records check 
include a foreign individuals' home country or international police 
cooperation to perform a criminal history records check in their 
previous nation of residence, and to include a check against the 
terrorist watch list.
    NRC Response: The NRC agrees that FBI fingerprint checks are likely 
only to give information about domestic criminal history. 
Fingerprinting has long been a trusted method of verifying an 
applicant's identity, and it serves as an accepted method of searching 
existing U.S. records for domestic criminal history. The scope of this 
proposed rulemaking is to develop regulations implementing the 
fingerprint requirements set forth in Section 149 of the AEA. Section 
149.a.(2) of the AEA requires that, ``All fingerprints obtained by an 
individual or entity * * * be submitted to the Attorney General of the 
United States through the Commission for identification and a criminal 
history records check,'' for those seeking or permitted unescorted 
access to utilization facilities. The NRC recognizes that an FBI 
criminal history records check may be only one aspect of a licensee's 
determination to grant an individual unescorted access to an NPR. Many 
licensees undertake more extensive background investigations as they 
deem necessary. No changes to the rule language were made as a result 
of this comment.

General Comments Received During Reopened Public Comment Period

    All eleven comments received during the reopened public comment 
period referred to the proposed rule and previously submitted public 
comments provided by other facilities and the National Organization of 
Test, Research, and Training Reactors (TRTR). All eleven comments 
supported TRTR's comments submitted on October 3, 2010 (NRC-2008-0619-
0019), which are addressed previously in this document under, ``General 
Comments Received During Initial Public Comment Period.'' The 
sentiments stated that the proposed rule adds additional requirements 
for security at NPR facilities that will further limit student, 
faculty, and research access and divert additional resources from 
educational and research missions. Some of the eleven comments provided 
views that were in addition to those supporting TRTR's comments. The 
following are those additional comments received during the reopened 
public comment period.
    Comment: Several commenters expressed the view that there is no 
clear evidence these additional requirements will provide a 
commensurate improvement in the protection of public health and safety. 
They stated that after the events of September 11, 2001, the NRC 
required compensatory measures that were implemented by all NPR 
facilities via the Confirmatory Action Letter process. Several years 
later, the NRC issued order EA-07-074, requiring fingerprinting and 
criminal history records checks for individuals with unescorted access 
as defined by the order. In the decade since September 11, 2001, there 
have been no credible threats to security at NPRs. The measures and 
order implemented since then have provided more than adequate 
additional protections given the implications of that historic 
occurrence. With no indications of an increased probability of threat 
against NPRs, there can be no justification for further prescribed 
additional security requirements which heretofore have been adequate.
    NRC Response: The NRC agrees that there is no current, specific, 
credible threat to the security of NPRs. Furthermore, the NRC agrees 
that NPR security requirements, including regulations, NRC-issued 
security orders, and compensatory measures have provided adequate 
protection at NPRs to

[[Page 27567]]

date. However, the NRC is required under Section 149 of the AEA to 
implement the requirement to fingerprint all persons seeking unescorted 
access to utilization facilities, including NPRs. Since 2007, the NRC 
has relied on security orders to fulfill this statutory requirement, 
but the NRC prefers to regulate by rulemaking vice regulating by 
orders. The rulemaking process allows deliberate processes and 
extensive stakeholder involvement that orders do not. The 2007 NRC-
issued security orders have provided adequate protection and allowed a 
shorter implementation time, but this final rule has been shaped by 
lessons learned from the orders, rulemaking process best practices, and 
engagement from the NPR community.
    Comment: Two commenters stated similarly that they believed the 
proposed rule would begin limiting the educational opportunities at 
many facilities without further advancing the security of these 
facilities. The proposed rule adds additional requirements for security 
at NPR facilities that will very likely limit student, faculty, and 
researcher access and divert additional resources from their 
educational and research missions. They note that in difficult budget 
times, resources are very tight and funding support at the State level 
is already limited. Additional requirements would likely further reduce 
the educational and research capabilities of some facilities to the 
point where they may be closed and cease to contribute to these 
missions and the nuclear education in our country. They have no problem 
with the need to provide a secure and safe environment, but feel that 
current procedures are more than adequate so that the proposed 
additional requirements add extremely little to that environment (if 
anything) while diverting both attention and resources from more 
important matters.
    NRC Response: The NRC is sensitive to the costs of regulation. The 
only requirement in this final rule that is additional to the 2007 NRC-
issued security orders is to fingerprint those persons seeking 
unescorted access to vital areas. As stated above, the NRC believes the 
impact of the vital area criterion will be minimal because few NPR 
facilities have vital equipment besides SNM (unescorted access to which 
already requires fingerprinting due to the material criterion of this 
rule). Additionally, the NRC believes the impact of the vital area 
criterion will be minimal because few licensee personnel will require 
unescorted access to vital areas that do not require unescorted access 
to SNM or to SGI. In the development of this rulemaking, the NRC re-
evaluated whether an area criterion, as applied to the requirements of 
fingerprinting individuals seeking unescorted access to the facility, 
is required to ensure that the fingerprinting requirements in Section 
149 of the AEA--the regulatory basis by which this rulemaking was 
initiated--are properly and completely implemented for NPRs. The rule 
bifurcates the fingerprint requirement for ``access to a utilization 
facility'' into two criteria which the rule terms ``SNM'' and ``vital 
area''--both of which licensees must comply with by the implementation 
date of this rule. The NRC made an affirmative determination that both 
a material criterion and an area criterion are required to implement 
the statutory requirements in Section 149 of the AEA for NPR 
facilities.
    Comment: Another commenter was concerned that the proposed rule 
would further discourage utilization of research reactor facilities by 
individuals who pose essentially no security risk. The commenter stated 
that many reactors today already face the prospect of diminished 
utilization and anything that would further discourage potential users 
will have a detrimental impact on the viability of these facilities. 
The commenter concluded that any regulations proposed by the NRC should 
have an adequately demonstrated basis in terms of information available 
in the public record. The commenter was unaware of any serious security 
incidents, such as attempted theft of SNM or sabotage of reactor 
facilities, by persons without fingerprinting checks. The commenter 
recommended that cognizant Federal agencies should use caution in 
broadly applying new rules, particularly without taking into account 
the added paperwork burdens and costs associated with such rulemaking. 
This impact can be particularly devastating for smaller research 
reactor facilities that are already under considerable budgetary 
pressure from their host institutions.
    NRC Response: The NRC does not intend to discourage utilization of 
research reactor facilities in any way. However, the principle focus of 
this rule is to implement Section 149 of the AEA as amended, which 
requires fingerprinting of all individuals given unescorted access to 
an NPR. The NRC believes that this requirement presents a minimal 
burden to NPRs as the differences between this final rule and the 2007 
NRC-issued security orders are minimal. In order to ensure complete and 
proper implementation of the statute's requirements for both current 
NPR licensees and future NPRs, this rulemaking incorporates an 
additional area criterion beyond the SNM criterion invoked by the 
order. The area criterion is to ensure that individuals seeking 
unescorted access to areas that contain vital equipment are 
fingerprinted and thereby receive FBI fingerprint-based criminal 
history records checks.

Comments Responding to NRC-Posed Questions

    In the proposed rule Federal Register notice dated July 20, 2010 
(75 FR 42008), the NRC requested stakeholder feedback on additional 
topics. The three questions presented were:
    1. Is 120 days sufficient time to implement the new provisions, 
including revising or developing fingerprinting programs or procedures?
    2. Are there any other newly issued NRC requirements or impositions 
(aggregate impacts) that you expect could adversely impact your ability 
to implement the proposed provisions?
    3. If there are other potential aggregate impacts, is there a time 
when you expect that these impacts will become insignificant in terms 
of your capability to implement the new proposed revisions?
    Comment: The NRC received 3 total responses to the question 
concerning the implementation of Sec.  73.57. Two commenters stated 
that the 120 days for implementation is sufficient time provided that 
individual licensees may request an extension based on other activities 
and limited staff resources. One of the commenters stated that this 
time period was sufficient only if the rule was amended as they had 
requested.
    NRC Response: The NRC understands the concern regarding the 
implementation period. Accordingly, the NRC held a Category 3 public 
meeting on June 23, 2011, to better understand concerns associated with 
implementation. The effective date of the rule was extended to 180 days 
in response to these concerns to enable implementation planning 
meetings with all affected stakeholders. Given the NRC security orders 
already in place, the NRC will allow 180 days for full implementation 
of this rule to provide for a smooth transition in adoption of this 
regulation.
    Comment: In response to the NRC question whether there are other 
newly issued NRC regulations that have an aggregate impact to 
implementing Sec.  73.57, several commenters stated that the proposed 
rule for 10 CFR Part 37, ``Physical Protection of Byproduct Material'' 
(75 FR 33902; June 15, 2010), will impact their ability to implement 
Sec.  73.57 as the same process and

[[Page 27568]]

procedures are impacted by both rules. The actual impact of 10 CFR Part 
37 (as with the final Sec.  73.57) is unknown as the rule is in draft.
    One commenter continued by stating that they identified no specific 
aggregate impact, but if the proposed rule were implemented as worded, 
multiple areas will be declared vital areas, facility access will be 
further restricted, SNM of no significance will be removed from 
temporary storage areas and moved into the vital controlled access 
areas, research/education activities using these materials will be 
halted if necessary to comply with the regulation until suitable 
protections can be evaluated, and clear documentation established. This 
commenter requested that NRC ensures regulatory discretion remains for 
individual licensees when implementing the new rule.
    Another commenter continued by stating that individual licensees 
may have aggregate impacts (such as ongoing licensing actions or 
relicensing) and also recommended that the NRC ensure regulatory 
discretion remains when implementing the new rule.
    NRC Response: The NRC disagrees with the comments with regard to 
the implementation challenges. As noted in response to the previous 
comments, the NRC extended the effective date of the rule to 180 days 
and NRC staff will meet with NPR licensees to support implementation. 
Regarding the relationship of proposed 10 CFR part 37, ``Physical 
Protection of Byproduct Material'' (75 FR 33902; June 15, 2010), and 
this rulemaking, 10 CFR part 37 would deal specifically with the use 
and transport of Category 1 and Category 2 quantities of radioactive 
material as defined in proposed 10 CFR part 37. The changes to Sec.  
73.57 presented in this final rule are written specifically to ensure 
proper fingerprinting for unescorted access to SNM and vital areas at 
NPRs. As such, this amendment to Sec.  73.57 is separate and distinct 
from the provisions that the NRC may incorporate into 10 CFR part 37 to 
address radioactive material.
    The use of the vital area criterion expands a requirement to 
fingerprint individuals who wish to have unescorted access to areas in 
NPRs that may not contain SNM, but instead may contain vital equipment 
that is important from a radiological sabotage standpoint (i.e., if it 
is a vital area that is established to contain only SNM, then that is 
already captured in the SNM criterion). The term vital area is used in 
its definition found in Sec.  73.2. As such, only those NPR licensees 
who have vital areas as defined in 10 CFR part 73 are likely subject to 
this added requirement. This vital equipment would likely exist only at 
the higher power NPRs, and the vital areas where they are contained can 
be identified by reference to the current security plans and informed 
by the security assessments. For most NPR facilities, the SNM criterion 
adequately ensures that individuals who wish to have unescorted access 
are fingerprinted. No regulatory discretion is allowed for this rule; 
however, the NRC staff will work with NPR licensees to support proper 
interpretation and implementation of these criteria.

III. Discussion

A. General

    These amendments establish generically applicable fingerprinting 
requirements for non-power reactor licensees similar to those 
previously imposed by the Commission's orders pertaining to the 
granting of unescorted access. The amendments implement the requirement 
in Section 149.a.(1)(B)(i)(I) of the AEA that the Commission require to 
be fingerprinted any individual who is permitted unescorted access to a 
utilization facility.
    As previously noted, Section 149 of the AEA requires that the 
Commission fingerprint and conduct a criminal history records check of 
individuals seeking unescorted access at a broader range of NRC 
licensees and regulated facilities. Utilization facilities, including 
NPRs, which were not previously subject to these requirements, are now 
subject to these fingerprint requirements. It is this specific 
expansion in regulatory authority that is the subject of this proposed 
rule (i.e., extension of these fingerprint-based FBI criminal history 
records check requirements to NPRs).
    Section 149 of the AEA now requires fingerprinting for individuals 
seeking unescorted access to a ``utilization facility.'' ``Utilization 
facility'' is a term that is defined in Section 11.cc. of the AEA as: 
``any equipment or device, except an atomic weapon, determined by rule 
of the Commission to be capable of making use of special nuclear 
material in such quantity as to be of significance to the common 
defense and security, or in such manner as to affect the health and 
safety of the public, or peculiarly adapted for making use of atomic 
energy in such quantity as to be of significance to the common defense 
and security, or in such manner as to affect the health and safety of 
the public; or any important component part especially designed for 
such equipment or device as determined by the Commission.''
    The Commission has defined ``utilization facility'' in Sec.  50.2 
as any nuclear reactor other than one designed or used primarily for 
the formation of plutonium or uranium-233.
    In developing these provisions, the NRC recognized that when 
constructing requirements for NPR licensees, it should be cognizant of 
the direction in Section 104.c of the AEA which states, in part, that 
the Commission is directed to impose only such minimum amount of 
regulation of the licensee as the Commission finds will permit the 
Commission to fulfill its obligations under the Act to promote common 
defense and security and to protect the health and safety of the public 
and will permit the conduct of widespread and diverse research and 
development.
    The revisions discussed in this document are constructed in 
accordance with the requirements of Section 149 of the AEA and within 
the constraints of Section 104.c of the AEA.

B. Relaxing of Orders

    Section 73.57 as amended replaces, in whole, the interim 
requirements imposed by Order EA-07-074, ``Issuance of Order Imposing 
Fingerprinting and Criminal History Records Check Requirements for 
Unescorted Access to Research and Test Reactors'' (72 FR 25337; May 4, 
2007); and Order EA-07-098, ``Issuance of Order Imposing Fingerprinting 
and Criminal History Records Check Requirements for Unescorted Access 
to the General Atomics' Research and Test Reactors'' (72 FR 44590; 
August 8, 2007). The final rule amends Sec.  73.57 with similar 
requirements that ensure proper implementation of the requirements in 
Section 149 of the AEA. Accordingly, once current NPR licensees have 
implemented the requirements in Sec.  73.57, the NRC will relax Order 
EA-07-074 and Order EA-07-098 after compliance with the requirements of 
the final rule has been documented. However, all orders will remain in 
effect until the NRC notifies the current NPR licensee, in writing, 
that the orders are relaxed with respect to its facility.

C. Implementation Plans

    The effective date of this rule is November 7, 2012 which will 
allow 180 days for implementation. This is 60 days more than the 120 
originally proposed time period in response to public comments. The NRC 
believes that the majority of procedure and plan changes are currently 
in place as a result of the previously issued unescorted access order. 
But, some licensees stated that they would need additional time.

[[Page 27569]]

The extended effective date of this final rule will provide time for 
those licensees to develop or revise procedures and programs associated 
with the granting of unescorted access at their facilities to comply 
with the final Sec.  73.57(g) provisions. There are no safety or 
security issues associated with this additional time because the 
security orders have already been in place for a number of years. 
Additionally, the NRC believes this provides sufficient time for 
additional individuals to be fingerprinted and approved by the 
reviewing official.
    The NRC held a Category 3 public meeting on June 23, 2011 (ADAMS 
Accession Nos. ML111460100 and ML111821113). The principal objective of 
this Category 3 public meeting was to continue outreach in support of 
openness and transparency and to facilitate communication that would 
enhance better understanding, interpretation, and implementation of 
this regulation. The NRC staff intends to offer an informed series of 
site-specific implementation meetings for each licensee. The intent of 
these meetings is to facilitate communication and provide the licensees 
an opportunity to discuss how they will ensure compliance with this 
rule.

IV. Paragraph-by-Paragraph Analysis

A. Sec.  73.57(a) General

    Paragraphs (a)(1) and (a)(2) are simplified because the first 
portion of the current regulations, which includes current power 
reactors licensed under 10 CFR Part 50 and applicants for power reactor 
licenses, is encompassed by the second portion of the provision that 
requires licensees that engage, or intend to engage in any regulated 
activity, be subject to the provisions of Sec.  73.57.
    Paragraph (a)(3) is revised to add NPRs into the scope of licensees 
subject to Sec.  73.57 fingerprint provisions. Non-power reactor 
licensees will be added to Sec.  73.57 to make use of the current 
fingerprint requirement provisions that are being successfully used for 
other licensees subject to FBI fingerprint-based criminal history 
records checks. This will ensure that NPR licensee fingerprints are 
handled in a manner that is both consistent with the process used for 
other licensees, and that ensures the NRC meets it obligations under 
the AEA for the handling and processing of fingerprints with the FBI.

B. Sec.  73.57(b) General Performance Objective and Requirements

    Paragraph (b)(1) is revised to include non-power reactor licensees 
in the scope of the general performance and objective requirements of 
Sec.  73.57. The paragraph points to new paragraph (g) where the 
specific unescorted access provisions for NPR licensees are described.
    Paragraph (b)(2)(i) is revised to add non-power reactor facilities. 
Paragraph (b)(2)(i) is further revised to list ``offsite response 
organizations responding to a non-power reactor facility'' as one of 
the categories that does not require fingerprinting under the revised 
Sec.  73.57 provisions. Based on comments received in response to the 
proposed rule, paragraph (b)(2)(i) is further revised to add 
``Federal'' (non-NRC) employees who have had equivalent reviews of FBI 
criminal history data to the list of individuals that licensees need 
not fingerprint in accordance with the requirements of this section.
    Paragraph (b)(2)(v) is added to enable individuals who have a valid 
unescorted access authorization to a non-power reactor facility on the 
effective date of the rule (granted in response to NRC Orders EA-07-074 
and EA-07-098) to retain their access authorization and not be required 
to have a new fingerprint-based FBI criminal history records check 
under Sec.  73.57(g) until such time that the individual's existing 
authorization either expires, is terminated, or is otherwise required 
to be renewed.
    Paragraph (b)(4) is revised to relieve NPR licensees from being 
required to fingerprint an individual if the licensee is reinstating 
the unescorted access to a granted individual when that individual 
returns to the same reactor facility, and the unescorted access has not 
been interrupted for a continuous period of more than 365 days.
    Paragraph (b)(5) is revised to provide non-power reactor licensees 
the discretion not to fingerprint individuals for which fingerprint-
based criminal history records checks have been conducted, and for 
which the criminal history records checks can be transferred to the 
gaining licensee in accordance with Sec.  73.57(f)(3). This revision 
allows for reciprocity of fingerprint-based criminal history records 
checks and grants NPR licensees the same discretion that is currently 
granted to power reactor licensees.
    Paragraph (b)(8) is revised to include NPR licensees to ensure that 
NPR licensees use the information obtained as part of the criminal 
history records check solely for the purpose of determining an 
individual's suitability for unescorted access.

C. Sec.  73.57(c) Prohibitions

    Paragraph (c)(1) is revised to include NPR licensees so that the 
associated prohibitions are provided to individuals seeking unescorted 
access at non-power reactors.

D. Sec.  73.57(d) Procedures for Processing of Fingerprint Checks

    Paragraph (d)(1) is revised to include non-power reactor facilities 
so that the established fingerprint provisions and forms that the NRC 
currently uses for other licensees can be used by NPR licensees.
    Paragraph (d)(3)(ii) is revised to apply the application fee 
provisions to all licensees (including NPR licensees) subject to the 
Sec.  73.57 fingerprinting requirements.

E. Sec.  73.57(f) Protection of Information

    Paragraph (f)(2) is revised to add non-power reactor licensees to 
ensure that the personal information disclosure restrictions are 
applied to NPR licensees.
    Paragraph (f)(5) is revised to add non-power reactors and thereby 
provide records retention requirements for the fingerprints and 
criminal history records checks generated through compliance with 
revised Sec.  73.57.

F. Sec.  73.57(g) Fingerprinting Requirements for Non-Power Reactor 
Licensees

    Paragraph (g) is added to provide the new fingerprint-based 
criminal history records checks requirements required by Section 149 of 
the AEA. The scope of the proposed requirements is consistent with 
orders on unescorted access issued by the NRC on April 30, 2007, and 
August 1, 2007 (EA-07-074 and EA-07-098, respectively). These orders 
require NPR licensees to conduct FBI identification and fingerprint-
based criminal history records checks based on fingerprints for 
individuals granted unescorted access to SNM at these facilities (i.e., 
an individual who is granted unescorted access could exercise physical 
control over the special nuclear material possessed by the licensee, 
which would be of significance to the common defense and security or 
would adversely affect the health and safety of the public, such that 
the special nuclear material could be used or removed in an 
unauthorized manner without detection, assessment, or response by 
systems or persons designated to detect, assess or respond to such 
unauthorized use or removal. At NPRs, such individuals include those 
with the capability and knowledge to use the special nuclear material 
in the utilization facility or remove the special nuclear material from 
the utilization facility in an unauthorized manner without detection, 
assessment, and

[[Page 27570]]

response by the physical protection system or related provisions or 
persons). The orders were issued as interim measures until the NRC 
could formulate generically applicable requirements for incorporation 
into NRC regulations.
    Paragraph 73.57(g)(1) establishes requirements that prohibit any 
person from having unescorted access to a non-power reactor facility 
unless that person has been determined by the licensee to be 
trustworthy and reliable. This determination is made by an NRC-approved 
reviewing official who may undertake more extensive background 
investigations as they deem necessary in order to determine 
trustworthiness and reliability. The reviewing official is required to 
have unescorted access in accordance with the requirements of Sec.  
73.57, or access to SGI. The licensee's NRC-approved reviewing official 
evaluates the criminal history records check information to determine 
whether the individual has a record of criminal activity that indicates 
that the individual should be denied unescorted access. For each 
determination of unescorted access, which includes a review of criminal 
history information, the NRC expects NPR licensees to document the 
basis for the decision. When negative information is discovered that 
was not provided by the individual, or which is different in any 
material respect from the information provided by the individual, this 
information would be considered, and actions taken based on these 
findings. The NRC expects these findings to be documented. A criminal 
history record containing a pattern of behaviors which could be 
expected to recur or continue, or recent behaviors which cast questions 
on whether an individual should have unescorted access in accordance 
with Sec.  73.57(g) should be carefully evaluated before unescorted 
access is granted to the individual.
    Paragraph 73.57(g)(2)(i) establishes requirements for NPR licensees 
to obtain fingerprints for criminal history records checks for each 
individual who is seeking or permitted unescorted access to ``vital 
areas'' of the non-power reactor facility. ``Vital area'' is defined in 
Sec.  73.2 as ``any area which contains vital equipment,'' and ``vital 
equipment'' is in turn defined in Sec.  73.2 as ``any equipment, 
system, device, or material, the failure, destruction, or release of 
which could directly or indirectly endanger the public health and 
safety by exposure to radiation. Equipment or systems which would be 
required to protect public health and safety following such failure, 
destruction, or releases are also considered to be vital.'' For a small 
number of licensees, the vital area criterion may increase the scope of 
personnel required to obtain fingerprinting beyond the SNM criterion 
proposed in Sec.  73.57(g)(2)(ii). A ``vital area'' at a particular NPR 
will vary as a function of the facility design. Security assessments 
have been performed by the NRC for a number of licensees that can 
provide the licensees insight into what constitutes a ``vital area.''
    In response to unescorted access orders issued by the NRC on April 
30, 2007, and August 1, 2007 (EA-07-074 and EA-07-098, respectively), 
licensees developed procedures for granting unescorted access to their 
facilities. These procedures included conducting FBI identification and 
fingerprint-based criminal history records checks for individuals who 
requested, or were already granted, unescorted access to special 
nuclear material (SNM) at these facilities. The orders defined an 
individual who is granted unescorted access as one who could exercise 
physical control over the SNM possessed by the licensee, which would be 
of significance to the common defense and security or would adversely 
affect the health and safety of the public, such that the SNM could be 
used or removed in an unauthorized manner without detection, 
assessment, or response by systems or persons designated to detect, 
assess or respond to such unauthorized use or removal.
    While the rule still requires those requesting access to SNM 
undergo FBI fingerprint-based criminal history records checks, it also 
establishes requirements for NPR licensees to obtain fingerprints for 
criminal history records checks for each individual who is seeking or 
permitted unescorted access to ``vital areas'' of the NPR facility. The 
addition of the vital area criterion only affects licensees that have a 
vital area, as described in Sec.  73.2, at their facility. For the 
majority of licensees, implementing this rule will not require any 
actions in addition to their current security plans and procedures, 
thereby making this a seamless implementation for those licensees.
    Paragraph (g)(2)(ii) establishes requirements for NPR licensees to 
obtain fingerprints for criminal history records checks for each 
individual who is seeking or granted unescorted access to SNM in the 
non-power reactor facility. This provision is consistent with the 
criteria used in the unescorted access order. The Commission notes that 
there may be significant overlap between the two criteria (i.e., SNM 
and vital area) of proposed Sec.  73.57(g)(2). As an example, SNM can 
be considered to be vital equipment under the material portion of the 
Sec.  73.2 vital equipment definition. The NRC expects that the SNM 
criterion would, in most situations, determine whether an individual is 
required to be fingerprinted in accordance with the proposed 
provisions.
    It is not the intent of the SNM criterion to cause individuals to 
be fingerprinted without the consideration of the potential safety 
significance of the material. Instead, fingerprinting individuals for 
unescorted access to SNM should be limited to SNM which would be of 
significance to the common defense and security or could adversely 
affect the health and safety of the public. When determining what SNM 
meets this criterion, NPR licensees should consult their security plans 
and procedures and inform this decision with existing security 
assessments. Typically, SNM that meets this criterion would be 
strategic SNM, SNM of moderate strategic significance, or SNM of low 
strategic significance, as defined in Sec.  73.2. It is not the NRC's 
intent to fingerprint individuals who wish to have unescorted access to 
minute amounts of SNM and do not meet these criteria.
    For both Sec. Sec.  73.57(g)(2)(i) and (ii), for the purposes of 
determining which individuals must be fingerprinted, an individual must 
additionally (beyond simply seeking unescorted access) possess the 
capability and knowledge to make unauthorized use of the special 
nuclear material in the non-power reactor. This constraint in the 
requirement may limit the requirement for application of fingerprint-
based criminal history records checks. In some cases, more than simple 
physical access to special nuclear material or specified areas is 
necessary to require licensees to obtain fingerprint-based criminal 
history records checks under Sec. Sec.  73.57(g)(2)(i) and (ii). To 
determine which individuals should be fingerprinted for unescorted 
access, NPR licensees need to evaluate their current security plans and 
procedures considering the definition of vital area (in 10 CFR part 73) 
and the requirements of Sec. Sec.  73.57(g)(2)(i) and (ii), as well as 
any other security assessment information that might be available. For 
example, an NPR licensee may decide for practical reasons to 
fingerprint individuals who wish to have unescorted access within the 
controlled access area.
    In most cases, the provisions of Sec.  73.57(g) use an NPR 
licensee's procedures similar to those used to implement the previous 
unescorted access and SGI access fingerprinting

[[Page 27571]]

orders and rulemaking (73 FR 63546; October 24, 2008). More 
importantly, these provisions of Sec.  73.57 follow the regulatory 
processing and handling requirements already incorporated into Sec.  
73.57.
    When a licensee submits fingerprints to the NRC under these 
provisions, the licensee will receive a criminal history review, 
provided in Federal records, since the individual's eighteenth 
birthday. The licensee's reviewing official shall evaluate the criminal 
history record information pertaining to the individual as required by 
revised Sec.  73.57(g). The criminal history records checks shall be 
used in the determination of whether the individual has a record of 
criminal activity that indicates that the individual should not have 
unescorted access at the non-power reactor facility. Each determination 
of unescorted access includes a review of the fingerprint-based 
criminal history records information and shall include the licensee's 
documentation of the basis for the decision.
    1. When negative information is discovered that was not provided by 
the individual, or that is different in any material respect from the 
information provided by the individual, this information shall be 
considered, and actions taken based on these findings shall be 
documented.
    2. A record containing a pattern of behaviors that indicates that 
the behaviors could be expected to recur or continue, or recent 
behaviors that cast questions on whether an individual should have 
unescorted access in accordance with the proposed provisions, would be 
carefully evaluated prior to any authorization of unescorted access.

V. Availability of Documents

    The NRC is making the documents identified in the following table 
available to interested persons through the methods identified. Please 
see the ADDRESSES section of this document for more information.

----------------------------------------------------------------------------------------------------------------
                    Document                           PDR                    ADAMS                    Web
----------------------------------------------------------------------------------------------------------------
EA-07-074, Issuance of Order Imposing                         X   ML070750140                                 X
 Fingerprinting and Criminal History Records
 Check Requirements for Unescorted Access to
 Research and Test Reactors, issued April 30,
 2007 (72 FR 25337; May 4, 2007).
EA-07-098, Issuance of Order Imposing                         X   ML072050494                                 X
 Fingerprinting and Criminal History Records
 Check Requirements for Unescorted Access to
 the General Atomics Research and Test
 Reactors, issued August 1, 2007 (72 FR 44590;
 August 8, 2007).
Advance Notice of Proposed Rule, published on                 X   ML090920147                                 X
 April 14, 2009 (74 FR 17115).
Proposed Rulemaking, published on July 20, 2010               X   ML100610314                                 X
 (75 FR 42000).
Proposed Rule, reopening of public comment                    X   ML103410299                                 X
 period published on December 20, 2010 (75 FR
 79312).
Regulatory Analysis............................               X   ML111310119                                 X
Regulatory Analysis Appendix...................               X   ML111310122                                 X
Final Rule Information Collection Analysis.....               X   ML111310115                                 X
----------------------------------------------------------------------------------------------------------------

VI. Criminal Penalties

    For the purpose of Section 223 of the AEA, the Commission amends 10 
CFR part 73 under Sections 149 of the AEA. Willful violations of the 
rule will be subject to criminal enforcement.

VII. Agreement State Compatibility

    Under the Policy Statement on Adequacy and Compatibility of 
Agreement States Programs, approved by the Commission on June 20, 1997, 
and published in the Federal Register (62 FR 46517; September 3, 1997), 
this rule is classified as compatibility ``NRC.'' Compatibility is not 
required for Category ``NRC'' regulations. The NRC program elements in 
this category are those that relate directly to areas of regulation 
reserved to the NRC by the AEA or the provisions of this chapter. 
Although an Agreement State may not adopt program elements reserved to 
the NRC, it may wish to inform its licensees of certain requirements by 
a mechanism that is consistent with the particular State's 
administrative procedure laws. Category ``NRC'' regulations do not 
confer regulatory authority on the State.

VIII. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, well-organized manner 
that also follows other best practices appropriate to the subject or 
field and the intended audience. The NRC has attempted to use plain 
language in promulgating this rule consistent with the Federal Plain 
Writing Act guidelines.

IX. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies unless using such a standard is inconsistent with 
applicable law or is otherwise impractical. The NRC is not aware of any 
voluntary consensus standard that could be used instead of the 
Government-unique standards.

X. Finding of No Significant Environmental Impact: Availability

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A, National Environmental Policy Act; Regulations Implementing 
Section 102(2), of 10 CFR part 51, Environmental Protection Regulations 
for Domestic Licensing and Related Regulatory Functions, that this rule 
is not a major Federal action significantly affecting the quality of 
the human environment and, therefore, an environmental impact statement 
is not required. The determination of this environmental assessment is 
that there will be no significant offsite impact to the public from 
this action.

XI. Paperwork Reduction Act Statement

    This final rule contains new or amended information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). These requirements were approved by the 
Office of Management and Budget (OMB), approval number 3150-0002.
    The burden to non-power reactors for the information collections 
associated with unescorted access to vital areas is estimated to 
average 2.5 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
information collection. Send comments on any aspect of these 
information collections, including suggestions for reducing the burden, 
to the Information Services Branch (T-5 F53), U.S. Nuclear

[[Page 27572]]

Regulatory Commission, Washington, DC 20555-0001, or by Internet 
electronic mail to [email protected]; and to the Desk 
Officer, Chad Whiteman, Office of Information and Regulatory Affairs, 
NEOB-10202, (3150-0002), Office of Management and Budget, Washington, 
DC 20503. You may also email comments to [email protected] 
or comment by telephone at 202-395-4718.

XII. Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

XIII. Regulatory Analysis: Availability

    The Commission has prepared a regulatory analysis on this final 
regulation. The analysis examines the costs and benefits of the 
alternatives considered by the Commission. An opportunity for public 
comment on the regulatory analysis was published in the Federal 
Register on July 20, 2010 (73 FR 42000). Availability of the regulatory 
analysis is indicated in the preamble of this final rule document 
within the Availability of Documents table in Section V of this 
document.

XIV. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the 
Commission certifies that this rule does not have a significant 
economic impact on a substantial number of small entities. This final 
rule affects only the licensing and operation of non-power reactors. 
Only one of the companies and universities that own and operate these 
facilities falls within the scope of the definition of small entities 
set forth in the Regulatory Flexibility Act or the size standards 
established by the NRC (10 CFR 2.810), and the economic impact on this 
entity is judged to be small.

XV. Backfit Analysis

    The NRC's backfit provisions are found in the regulations at 10 CFR 
50.109, 70.76, 72.62, and 76.76, and its issue finality provisions are 
located in 10 CFR part 52. Under Sec.  50.2, non-power reactors are 
research or test reactors licensed in accordance with Sections 103 or 
104.c of the AEA and 10 CFR 50.21(c) or 50.22 for research and 
development. Accordingly, the backfit provisions of 10 CFR part 50 
would be the only backfit provision potentially implicated by the 
licensing of test, research, or training reactors. The NRC has 
determined that the backfit provisions in Sec.  50.109 do not apply to 
test, research, or training reactors because the rulemaking record for 
Sec.  50.109 indicates that the Commission intended to apply this 
provision to only power reactors, and NRC practice has been consistent 
with this rulemaking record. The 10 CFR part 52 issue finality 
provisions do not apply to test, research, or training reactors because 
these reactors are not licensed under 10 CFR part 52. Therefore, a 
backfit analysis was not prepared for this final rule.

XVI. Congressional Review Act

    In accordance with the Congressional Review Act of 1996, the NRC 
has determined that this action is not a major rule and has verified 
this determination with the Office of Information and Regulatory 
Affairs of the OMB.

List of Subjects in 10 CFR Part 73

    Criminal penalties, Export, Hazardous materials transportation, 
Import, Nuclear materials, Nuclear power plants and reactors, Reporting 
and recordkeeping requirements, Security measures.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting 
the following amendments to 10 CFR part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

0
1. The authority citation for 10 CFR part 73 continues to read as 
follows:

    Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended, 
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201, 
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 
109-58, 119 Stat. 594 (2005).
    Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also 
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100 
Stat. 876 (42 U.S.C. 2169).


0
2. In Sec.  73.57:
0
a. The section heading, paragraphs (a), (b)(1), (b)(2)(i), the 
introductory text of paragraph (b)(4), paragraphs (b)(4)(i), (b)(5), 
(b)(8), the introductory text of paragraph (c)(1), and paragraphs 
(d)(1), (d)(3)(ii), (f)(2), and (f)(5) are revised; and
0
b. paragraphs (b)(2)(v) and (g) are added.
    The revisions and additions read as follows:


Sec.  73.57  Requirements for criminal history records checks of 
individuals granted unescorted access to a nuclear power facility, a 
non-power reactor, or access to Safeguards Information.

    (a) General.
    (1) Each licensee who is authorized to engage in an activity 
subject to regulation by the Commission shall comply with the 
requirements of this section.
    (2) Each applicant for a license to engage in an activity subject 
to regulation by the Commission, as well as each entity who has 
provided written notice to the Commission of intent to file an 
application for licensing, certification, permitting, or approval of a 
product subject to regulation by the Commission shall submit 
fingerprints for those individuals who will have access to Safeguards 
Information.
    (3) Before receiving its operating license under 10 CFR part 50 or 
before the Commission makes its finding under Sec.  52.103(g) of this 
chapter, each applicant for a license to operate a nuclear power 
reactor (including an applicant for a combined license) or a non-power 
reactor may submit fingerprints for those individuals who will require 
unescorted access to the nuclear power facility or non-power reactor 
facility.
    (b) * * *
    (1) Except those listed in paragraph (b)(2) of this section, each 
licensee subject to the provisions of this section shall fingerprint 
each individual who is permitted unescorted access to the nuclear power 
facility, the non-power reactor facility in accordance with paragraph 
(g) of this section, or access to Safeguards Information. The licensee 
will then review and use the information received from the Federal 
Bureau of Investigation (FBI) and, based on the provisions contained in 
this section, determine either to continue to grant or to deny further 
unescorted access to the nuclear power facility, the non-power reactor 
facility, or access to Safeguards Information for that individual. 
Individuals who do not have unescorted access or access to Safeguards 
Information shall be fingerprinted by the licensee and the results of 
the criminal history records check shall be used before making a 
determination for granting unescorted access to the nuclear power 
facility, non-power reactor facility, or to Safeguards Information.
    (2) * * *

[[Page 27573]]

    (i) For unescorted access to the nuclear power facility or the non-
power reactor facility (but must adhere to provisions contained in 
Sec. Sec.  73.21 and 73.22): NRC employees and NRC contractors on 
official agency business; individuals responding to a site emergency in 
accordance with the provisions of Sec.  73.55(a); offsite emergency 
response personnel who are responding to an emergency at a non-power 
reactor facility; a representative of the International Atomic Energy 
Agency (IAEA) engaged in activities associated with the U.S./IAEA 
Safeguards Agreement at designated facilities who has been certified by 
the NRC; law enforcement personnel acting in an official capacity; 
Federal, State or local government employees who have had equivalent 
reviews of FBI criminal history data; and individuals employed at a 
facility who possess ``Q'' or ``L'' clearances or possess another 
active government granted security clearance (i.e., Top Secret, Secret, 
or Confidential);
* * * * *
    (v) Individuals who have a valid unescorted access authorization to 
a non-power reactor facility on November 7, 2012 are not required to 
undergo a new fingerprint-based criminal history records check pursuant 
to paragraph (g) of this section, until such time that the existing 
authorization expires, is terminated, or is otherwise to be renewed.
* * * * *
    (4) Fingerprinting is not required if the licensee is reinstating 
the unescorted access to the nuclear power facility, the non-power 
reactor facility, or access to Safeguards Information granted an 
individual if:
    (i) The individual returns to the same nuclear power utility or 
non-power reactor facility that granted access and such access has not 
been interrupted for a continuous period of more than 365 days; and
* * * * *
    (5) Fingerprints need not be taken, in the discretion of the 
licensee, if an individual who is an employee of a licensee, 
contractor, manufacturer, or supplier has been granted unescorted 
access to a nuclear power facility, a non-power reactor facility, or to 
Safeguards Information by another licensee, based in part on a criminal 
history records check under this section. The criminal history records 
check file may be transferred to the gaining licensee in accordance 
with the provisions of paragraph (f)(3) of this section.
* * * * *
    (8) A licensee shall use the information obtained as part of a 
criminal history records check solely for the purpose of determining an 
individual's suitability for unescorted access to the nuclear power 
facility, the non-power reactor facility, or access to Safeguards 
Information.
    (c) * * *
    (1) A licensee may not base a final determination to deny an 
individual unescorted access to the nuclear power facility, the non-
power reactor facility, or access to Safeguards Information solely on 
the basis of information received from the FBI involving:
* * * * *
    (d) * * *
    (1) For the purpose of complying with this section, licensees 
shall, using an appropriate method listed in Sec.  73.4, submit to the 
NRC's Division of Facilities and Security, Mail Stop TWB 05B32M, one 
completed, legible standard fingerprint card (Form FD-258, 
ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each 
individual requiring unescorted access to the nuclear power facility, 
the non-power reactor facility, or access to Safeguards Information, to 
the Director of the NRC's Division of Facilities and Security, marked 
for the attention of the Division's Criminal History Check Section. 
Copies of these forms may be obtained by writing the Office of 
Information Services, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001, by calling 301-415-5877, or by email to 
[email protected]. Guidance on what alternative formats might be 
practicable is referenced in Sec.  73.4. The licensee shall establish 
procedures to ensure that the quality of the fingerprints taken results 
in minimizing the rejection rate of fingerprint cards due to illegible 
or incomplete cards.
* * * * *
    (3) * * *
    (ii) The application fee is the sum of the user fee charged by the 
FBI for each fingerprint card or other fingerprint record submitted by 
the NRC on behalf of a licensee, and an administrative processing fee 
assessed by the NRC. The NRC processing fee covers administrative costs 
associated with NRC handling of licensee fingerprint submissions. The 
Commission publishes the amount of the fingerprint records check 
application fee on the NRC public Web site. (To find the current fee 
amount, go to the Electronic Submittals page at http://www.nrc.gov/site-help/e-submittals.html and see the link for the Criminal History 
Program.) The Commission will directly notify licensees who are subject 
to this regulation of any fee changes.
* * * * *
    (f) * * *
    (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 have 
access to the information in performing assigned duties in the process 
of granting or denying unescorted access to the nuclear power facility, 
the non-power reactor facility or access to Safeguards Information. 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.
* * * * *
    (5) The licensee shall retain all fingerprint and criminal history 
records received from the FBI, or a copy if the individual's file has 
been transferred, on an individual (including data indicating no 
record) for one year after termination or denial of unescorted access 
to the nuclear power facility, the non-power reactor facility, or 
access to Safeguards Information.
    (g) Fingerprinting requirements for unescorted access for non-power 
reactor licensees.
    (1) No person shall be permitted unescorted access to a non-power 
reactor facility unless that person has been determined by an NRC-
approved reviewing official to be trustworthy and reliable based on the 
results of an FBI fingerprint-based criminal history records check 
obtained in accordance with this paragraph. The reviewing official is 
required to have unescorted access in accordance with this section or 
access to Safeguards Information.
    (2) Each non-power reactor licensee subject to the requirements of 
this section shall obtain the fingerprints for a criminal history 
records check for each individual who is seeking or permitted:
    (i) Unescorted access to vital areas of the non-power reactor 
facility; or
    (ii) Unescorted access to special nuclear material in the non-power 
reactor facility provided the individual who is seeking or permitted 
unescorted access possesses the capability and knowledge to make 
unauthorized use of the special nuclear material in the non-power 
reactor facility or to remove the special nuclear material from the 
non-power reactor in an unauthorized manner.

    Dated at Rockville, Maryland, this 4th day of May 2012.


[[Page 27574]]


    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2012-11293 Filed 5-10-12; 8:45 am]
BILLING CODE 7590-01-P