In the Matter of Holders of Material Licenses Authorized To Use Sealed Sources in Panoramic and Underwater Irradiators and Possess Greater Than 370 Terabecquerels (10,000 Curies); Order Imposing Fingerprinting and Criminal History Records Check Requirements for Unescorted Access to Certain Radioactive Material and Modification of the Compensatory Measures (Effective Immediately), 63043-63046 [E6-18052]
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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Notices
Dated this 17th day of October 2006 at
Rockville, Maryland.
For the Nuclear Regulatory Commission.
Margaret M. Doane,
Deputy Director, Office of International
Programs.
[FR Doc. E6–18021 Filed 10–26–06; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[EA–06–248]
In the Matter of Holders of Material
Licenses Authorized To Use Sealed
Sources in Panoramic and Underwater
Irradiators and Possess Greater Than
370 Terabecquerels (10,000 Curies);
Order Imposing Fingerprinting and
Criminal History Records Check
Requirements for Unescorted Access
to Certain Radioactive Material and
Modification of the Compensatory
Measures (Effective Immediately)
jlentini on PROD1PC65 with NOTICES
I
The Licensees identified in
Attachment 1 1 to this Order hold
licenses issued in accordance with the
Atomic Energy Act (AEA) of 1954, as
amended, by the U.S. Nuclear
Regulatory Commission (NRC or
Commission) or Agreement States,
authorizing possession of greater than
370 Terabecquerels (10,000 curies) of
byproduct material, in the form of
sealed sources, either in panoramic
irradiators that have dry or wet storage
of the sealed sources, or in underwater
irradiators in which both the source and
the product being irradiated are
underwater. On August 8, 2005, the
Energy Policy Act of 2005 (EPAct) was
enacted. Section 652 of the EPAct
amended Section 149 of the AEA to
require fingerprinting and a Federal
Bureau of Investigation (FBI)
identification and criminal history
records check of any person who is
permitted unescorted access to
radioactive materials subject to
regulation by the Commission, and
which the Commission determines to be
of such significance to the public health
and safety or the common defense and
security as to warrant fingerprinting and
background checks. NRC has decided to
implement this requirement, in part,
prior to the completion of the
rulemaking to implement the provisions
under the EPAct, which is underway,
because a deliberate malevolent act by
an individual with unescorted access to
these radioactive materials has a
potential to result in significant adverse
1 Attachment 1 contains sensitive information
and will not be released to the public.
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impacts to the public health and safety
or the common defense and security.
Those exempted, from fingerprinting
requirements under 10 CFR 73.59 (71
FR 33,989 (June 13, 2006)) for access to
Safeguards Information 2 (SGI) are also
exempt from the fingerprinting
requirements under this Order. In
addition, individuals who have a
favorably-decided U.S. Government
criminal history record check within the
last five (5) years, or individuals who
have an active federal security clearance
(provided in each case that they make
available the appropriate
documentation), have satisfied the
EPAct fingerprinting requirement and
need not be fingerprinted again.
Individuals who have been
fingerprinted and granted access to SGI
by the reviewing official under Order
EA–06–155 do not need to be
fingerprinted again.
II
Subsequent to the terrorist events of
September 11, 2001, the NRC issued a
security Order requiring certain large
panoramic and underwater irradiator
licensees to implement Compensatory
Measures (CMs) for radioactive
materials. The requirements imposed by
that Order (Irradiator Order), and
measures licensees have developed to
comply with that Order, were
designated by the NRC as SGI and were
not released to the public. One specific
CM imposed by the Irradiator Order
required licensees to conduct local
criminal history checks to determine the
trustworthiness and reliability of
individuals needing unescorted access
to the panoramic or underwater
irradiator sealed sources. ‘‘Access,’’
means that an individual could exercise
some physical control over the material
or device. At that time, the NRC did not
have the authority, except in the case of
power reactor licensees, to require
licensees to submit fingerprints for FBI
criminal history records checks of
individuals being considered for
unescorted access to radioactive
materials subject to NRC regulations.
Therefore, in accordance with Section
149 of the AEA, as amended by the
EPAct, the Commission is imposing the
FBI criminal history records check
requirements, as set forth in this Order,
including Attachment 2 to this Order,
on all Licensees identified in
Attachment 1 to this Order, that possess
greater than 370 Terabecquerels (10,000
curies) of byproduct material in the
2 Safeguards Information is a form of sensitive,
unclassified, security-related information that the
Commission has the authority to designate and
protect under section 147 of the AEA.
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63043
form of sealed sources. These
requirements will remain in effect until
the Commission determines otherwise.
In addition, pursuant to 10 CFR 2.202,
find that in light of the common defense
and security matters identified above,
which warrant the issuance of this
Order, the public health, safety, and
interest require that this Order be
effective immediately.
III
Accordingly, pursuant to Sections 81,
149, 161b, 161i, 161o, 182, and 186 of
the AEA of 1954, as amended, and the
Commission’s regulations in 10 CFR
2.202, 10 CFR Part 30, and 10 CFR Part
36, it is hereby ordered, effective
immediately, that all licensees
identified in attachment 1 to this order
shall comply with the requirements set
forth in this order.
A. All licensees identified in
Attachment 1 to this Order shall comply
with the following requirements:
1. The Licensee shall, within twenty
(20) days of the date of this Order,
establish and maintain a fingerprinting
program that meets the requirements of
Attachment 2 to this Order, for
unescorted access to the panoramic or
underwater irradiator sealed sources.
2. The Licensee shall, in writing,
within twenty (20) days of the date of
this Order, notify, the Commission (1)
receipt and confirmation that
compliance with the Order will be
achieved, or (2) if it is unable to comply
with any of the requirements described
in Attachment 2, or (3) if compliance
with any of the requirements is
unnecessary in its specific
circumstances. The notification shall
provide the Licensee’s justification for
seeking relief from, or variation of, any
specific requirement.
B. In accordance with the NRC’s
‘‘Order Imposing Fingerprinting and
Criminal History Check Requirements
for Access to Safeguards Information’’
(EA–06–155) issued on August 21, 2006,
only the NRC-approved reviewing
official shall review results from an FBI
criminal history records check. The
reviewing official shall determine
whether an individual may have, or
continue to have, unescorted access to
the panoramic or underwater irradiator
sealed sources that equal or exceed 370
Terabecquerels (10,000 curies).
Fingerprinting and the FBI
identification and criminal history
records check are not required for
individuals exempted from
fingerprinting requirements under 10
CFR 73.59 [71 FR 33,989 (June 13,
2006)] for access to SGI. In addition,
individuals who have a favorably
decided U.S. Government criminal
E:\FR\FM\27OCN1.SGM
27OCN1
63044
Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Notices
jlentini on PROD1PC65 with NOTICES
history records check within the last
five (5) years, or have an active federal
security clearance, (provided in each
case that the appropriate documentation
is made available to the Licensee’s
reviewing official) have satisfied the
EPAct fingerprinting requirement and
need not be fingerprinted again.
C. Fingerprints shall be submitted and
reviewed in accordance with the
procedures described in Attachment 2
to this Order. Individuals who have
been fingerprinted and granted access to
SGI by the reviewing official under
Order EA–06–155 do not need to be
fingerprinted again.
D. The Licensee may allow any
individual who currently has
unescorted access to the panoramic or
underwater irradiator sealed sources, in
accordance with the Irradiator Order, to
continue to have unescorted access
without being fingerprinted, pending a
decision by the reviewing official (based
on fingerprinting, an FBI criminal
history records check and a trustworthy
and reliability determination) that the
individual may continue to have
unescorted access to the panoramic or
underwater irradiator sealed sources.
The licensee shall complete
implementation of the requirements of
Attachment 2 to this Order by January
15, 2007.
E. The CMs of the Irradiator Order are
modified as follows:
1. The requirement for a local
criminal history check in CM 2.A.ii. is
superceded by the FBI criminal history
records check. All other requirements in
CM 2.A.ii are still applicable.
Licensee responses to Condition A.2.
shall be submitted to the Director, Office
of Federal and State Materials and
Environmental Management Programs,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555–0001. In
addition, Licensee responses shall be
marked as ‘‘Security-Related
Information—Withhold Under 10 CFR
2.390.’’
The Director, Office of Federal and
State Materials and Environmental
Management Programs, may, in writing,
relax or rescind any of the above
conditions upon demonstration of good
cause by the Licensee.
IV
In accordance with 10 CFR 2.202, the
Licensee must, and any other person
adversely affected by this Order may,
submit an answer to this Order, and
may request a hearing on this Order,
within twenty (20) days of the date of
this Order. Where good cause is shown,
consideration will be given to extending
the time to request a hearing. A request
for extension of time in which to submit
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16:53 Oct 26, 2006
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an answer or request a hearing must be
made in writing to the Director, Office
of Federal and State Materials and
Environmental Management Programs,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555, and include a
statement of good cause for the
extension. The answer may consent to
this Order. Unless the answer consents
to this Order, the answer shall, in
writing and under oath or affirmation,
specifically set forth the matters of fact
and law on which the Licensee or other
person adversely affected relies and the
reasons as to why the Order should not
have been issued. Any answer or
request for a hearing shall be submitted
to the Secretary, Office of the Secretary,
U.S. Nuclear Regulatory Commission,
Attn: Rulemakings and Adjudications
Staff, Washington, DC 20555. Copies
also shall be sent to the Director, Office
of Federal and State Materials and
Environmental Management Programs,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555, to the Assistant
General Counsel for Materials Litigation
and Enforcement at the same address,
and to the Licensee if the answer or
hearing request is by a person other than
the Licensee. Because of possible delays
in delivery of mail to United States
Government offices, it is requested that
answers and requests for hearing be
transmitted to the Secretary of the
Commission either by means of
facsimile transmission to (301)–415–
1101, or by e-mail to
hearingdocket@nrc.gov and also to the
Office of the General Counsel, either by
means of facsimile transmission to
(301)–415–3725, or by e-mail to
OGCMailCenter@nrc.gov. If a person
other than the Licensee requests a
hearing, that person shall set forth with
particularity the manner in which his/
her interest is adversely affected by this
Order and shall address the criteria set
forth in 10 CFR 2.309.
If a hearing is requested by the
Licensee or a person whose interest is
adversely affected, the Commission will
issue an Order designating the time and
place of any hearing. If a hearing is held,
the issue to be considered at such
hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the
Licensee may, in addition to demanding
a hearing, at the time the answer is filed
or sooner, move the presiding officer to
set aside the immediate effectiveness of
the Order on grounds that the Order,
including the need for immediate
effectiveness, is not based on adequate
evidence, but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for
hearing, or written approval of an
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extension of time in which to request a
hearing, the provisions as specified
above in Section III shall be final twenty
(20) days from the date of this Order,
without further Order or proceedings.
If an extension of time for requesting
a hearing has been approved, the
provisions as specified above in Section
III shall be final when the extension
expires, if a hearing request has not
been received. An answer or a request
for hearing shall not stay the immediate
effectiveness of this order.
Dated this 17th day of October 2006.
For the Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials
and Environmental Management Programs.
Attachment 1—List of Applicable
Materials Licensees Redacted
Attachment 2—Requirements for
Fingerprinting and Criminal History
Checks of Individuals When Licensee’s
Reviewing Official Is Determining
Unescorted Access to the Panoramic or
Underwater Irradiator Sealed Sources
Subject to EA–06–248
General Requirements
Licensees shall comply with the
following requirements of this
attachment.
1. Each Licensee subject to the
provisions of this attachment shall
fingerprint each individual who is
seeking or permitted unescorted access
to the panoramic or underwater
irradiator sealed sources. The Licensee
shall review and use the information
received from the Federal Bureau of
Investigation (FBI) and ensure that the
provisions contained in the subject
Order and this attachment are satisfied.
2. The Licensee shall notify each
affected individual that the fingerprints
will be used to secure a review of his/
her criminal history record and inform
the individual of the procedures for
revising the record or including an
explanation in the record, as specified
in the ‘‘Right to Correct and Complete
Information’’ section of this attachment.
3. Fingerprints for unescorted access
need not be taken if an employed
individual (e.g., a Licensee employee,
contractor, manufacturer, or supplier) is
relieved from the fingerprinting
requirement by 10 CFR 73.59 for access
to Safeguards Information, has a
favorably-decided U.S. Government
criminal history check within the last
five (5) years, or has an active federal
security clearance. Written confirmation
from the Agency/employer which
granted the federal security clearance or
reviewed the criminal history check
must be provided for either of the latter
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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Notices
two cases. The Licensee must retain this
documentation for a period of three (3)
years from the date the individual no
longer requires unescorted access to
radioactive materials associated with
the Licensee’s activities.
4. All fingerprints obtained by the
Licensee pursuant to this Order must be
submitted to the Commission for
transmission to the FBI.
5. The Licensee shall review the
information received from the FBI and
consider it, in conjunction with the
trustworthy and reliability requirements
of the Irradiator Order, in making a
determination whether to grant, or
continue to allow, unescorted access to
radioactive materials.
6. The Licensee shall use any
information obtained as part of a
criminal history records check solely for
the purpose of determining an
individual’s suitability for unescorted
access to the panoramic or underwater
irradiator sealed sources.
7. The Licensee shall document the
basis for its determination whether to
grant, or continue to allow, unescorted
access to the panoramic or underwater
irradiator sealed sources.
jlentini on PROD1PC65 with NOTICES
Prohibitions
A Licensee shall not base a final
determination to deny an individual
access to radioactive materials solely on
the basis of information received from
the FBI involving: An arrest more than
one (1) year old for which there is no
information of the disposition of the
case, or an arrest that resulted in
dismissal of the charge or an acquittal.
A Licensee shall not use information
received from a criminal history check
obtained pursuant to this Order in a
manner that would infringe upon the
rights of any individual under the First
Amendment to the Constitution of the
United States, nor shall the Licensee use
the information in any way which
would discriminate among individuals
on the basis of race, religion, national
origin, sex, or age.
Procedures for Processing Fingerprint
Checks
For the purpose of complying with
this Order, Licensees shall, using an
appropriate method listed in 10 CFR
73.4, submit to the NRC’s Division of
Facilities and Security, Mail Stop T–
6E46, one completed, legible standard
fingerprint card (Form FD–258,
ORIMDNRCOOOZ) or, where
practicable, other fingerprint records for
each individual seeking unescorted
access to the panoramic or underwater
irradiator sealed sources, to the Director
of the Division of Facilities and
Security, marked for the attention of the
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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 e-mail to forms@nrc.gov.
Practicable alternative formats are set
forth in 10 CFR 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.
The NRC will review submitted
fingerprint cards for completeness. Any
Form FD–258 fingerprint record
containing omissions or evident errors
will be returned to the Licensee for
corrections. The fee for processing
fingerprint checks includes one resubmission if the initial submission is
returned by the FBI because the
fingerprint impressions cannot be
classified. The one free re-submission
must have the FBI Transaction Control
Number reflected on the re-submission.
If additional submissions are necessary,
they will be treated as initial submittals
and will require a second payment of
the processing fee.
Fees for processing fingerprint checks
are due upon application. Licensees
shall submit payment with the
application for processing fingerprints
by corporate check, certified check,
cashier’s check, money order, or
electronic payment, made payable to
‘‘U.S. NRC.’’ [For guidance on making
electronic payments, contact the
Facilities Security Branch, Division of
Facilities and Security, at (301) 415–
7404]. Combined payment for multiple
applications is acceptable. The
application fee (currently $27) 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 NRC
processing fee, which covers
administrative costs associated with
NRC handling of Licensee fingerprint
submissions. The Commission will
directly notify Licensees who are
subject to this regulation of any fee
changes.
The Commission will forward to the
submitting Licensee all data received
from the FBI as a result of the Licensee’s
application(s) for criminal history
checks, including the FBI fingerprint
record.
Right To Correct and Complete
Information
Prior to any final adverse
determination, the Licensee shall make
available to the individual the contents
of any criminal records obtained from
PO 00000
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Fmt 4703
Sfmt 4703
63045
the FBI for the purpose of assuring
correct and complete information.
Written confirmation by the individual
of receipt of this notification must be
maintained by the Licensee for a period
of one (1) year from the date of the
notification.
If, after reviewing the record, an
individual believes that it is incorrect or
incomplete in any respect and wishes to
change, correct, or update the alleged
deficiency, or to explain any matter in
the record, the individual may initiate
challenge procedures. These procedures
include either direct application by the
individual challenging the record to the
agency (i.e., law enforcement agency)
that contributed the questioned
information, or direct challenge as to the
accuracy or completeness of any entry
on the criminal history record to the
Assistant Director, Federal Bureau of
Investigation Identification Division,
Washington, DC 20537–9700 (as set
forth in 28 CFR 16.30 through 16.34). In
the latter case, the FBI forwards the
challenge to the agency that submitted
the data and requests that agency to
verify or correct the challenged entry.
Upon receipt of an official
communication directly from the agency
that contributed the original
information, the FBI Identification
Division makes any changes necessary
in accordance with the information
supplied by that agency. The Licensee
must provide at least ten (10) days for
an individual to initiate an action
challenging the results of an FBI
criminal history records check after the
record is made available for his/her
review. The Licensee may make a final
determination on unescorted access to
the panoramic or underwater irradiator
sealed sources based upon the criminal
history record only upon receipt of the
FBI’s ultimate confirmation or
correction of the record. Upon a final
adverse determination on unescorted
access to the panoramic or underwater
irradiator sealed sources, the Licensee
shall provide the individual its
documented basis for denial.
Unescorted access to the panoramic or
underwater irradiator sealed sources
shall not be granted to an individual
during the review process.
Protection of Information
1. Each Licensee who obtains a
criminal history record on an individual
pursuant to this Order shall establish
and maintain a system of files and
procedures for protecting the record and
the personal information from
unauthorized disclosure.
2. The Licensee may not disclose the
record or personal information collected
and maintained to persons other than
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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Notices
the subject individual, his/her
representative, or to those who have a
need to access the information in
performing assigned duties in the
process of determining unescorted
access to the panoramic or underwater
irradiator sealed sources. No individual
authorized to have access to the
information may re-disseminate the
information to any other individual who
does not have a need-to-know.
3. The personal information obtained
on an individual from a criminal history
record check may be transferred to
another Licensee if the Licensee holding
the criminal history record receives the
individual’s written request to redisseminate the information contained
in his/her file, and the gaining Licensee
verifies information such as the
individual’s name, date of birth, social
security number, sex, and other
applicable physical characteristics for
identification purposes.
4. The Licensee shall make criminal
history records, obtained under this
section, available for examination by an
authorized representative of the NRC to
determine compliance with the
regulations and laws.
5. The licensee shall retain all
fingerprint and criminal history records
received from the FBI, or a copy if the
individual’s file has been transferred,
for three (3) years after termination of
employment or denial to unescorted
access to the panoramic or underwater
irradiator sealed sources. After the
required three (3) year period, these
documents shall be destroyed by a
method that will prevent reconstruction
of the information in whole or in part.
[FR Doc. E6–18052 Filed 10–26–06; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[EA–06–250]
In the Matter of Holders of Material
Licenses Authorized To Manufacture
or Distribute Items Containing
Radioactive Material of Concern; Order
Imposing Fingerprinting and Criminal
History Records Check Requirements
for Unescorted Access to Certain
Radioactive Material and Modification
of the Additional Security Measures
(Effective Immediately)
jlentini on PROD1PC65 with NOTICES
I
The Licensees identified in
Attachment 1 1 to this Order hold
licenses issued in accordance with the
1 Attachment 1 contains sensitive information
and will not be released to the public.
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16:53 Oct 26, 2006
Jkt 211001
Atomic Energy Act (AEA) of 1954, as
amended, by the U.S. Nuclear
Regulatory Commission (NRC or
Commission) or Agreement States,
authorizing them to manufacture or
initially transfer items containing
radioactive materials for sale or
distribution. On August 8, 2005, the
Energy Policy Act of 2005 (EPAct) was
enacted. Section 652 of the EPAct
amended Section 149 of the AEA to
require fingerprinting and a Federal
Bureau of Investigation (FBI)
identification and criminal history
records check of any person who is
permitted unescorted access to
radioactive materials subject to
regulation by the Commission, and
which the Commission determines to be
of such significance to the public health
and safety or the common defense and
security as to warrant fingerprinting and
background checks. NRC has decided to
implement this requirement, in part,
prior to the completion of the
rulemaking to implement the provisions
under the EPAct, which is underway,
because a deliberate malevolent act by
an individual with unescorted access to
these radioactive materials has a
potential to result in significant adverse
impacts to the public health and safety
or the common defense and security.
Those exempted from fingerprinting
requirements under 10 CFR 73.59 (71
FR 33,989 (June 13, 2006)) for access to
Safeguards Information 2 (SGI) are also
exempt from the fingerprinting
requirements under this Order. In
addition, individuals who have a
favorably-decided U.S. Government
criminal history record check within the
last five (5) years, or individuals who
have an active Federal security
clearance (provided in each case that
they make available the appropriate
documentation), have satisfied the
EPAct fingerprinting requirement and
need not be fingerprinted again.
Individuals who have been
fingerprinted and granted access to SGI
by the reviewing official under Order
EA–06–155 do not need to be
fingerprinted again.
II
Subsequent to the terrorist events of
September 11, 2001, the NRC issued a
security Order requiring certain
Manufacturing and Distribution (M&D)
Licensees to implement Additional
Security Measures (ASMs) for certain
radioactive materials. The requirements
imposed by that Order (M&D Order),
2 Safeguards Information is a form of sensitive,
unclassified, security-related information that the
Commission has the authority to designate and
protect under section 147 of the AEA.
PO 00000
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Fmt 4703
Sfmt 4703
and measures licensees have developed
to comply with that Order, were
designated by the NRC as Safeguards
Information (SGI) and were not released
to the public. One specific ASM,
imposed by the M&D Order, required
licensees to conduct local background
checks to determine the trustworthiness
and reliability of individuals needing
unescorted access to radioactive
materials. ‘‘Access,’’ to these radioactive
materials means that an individual
could exercise some physical control
over the material or device. At that time,
the NRC did not have the authority,
except in the case of power reactor
licensees, to require licensees to submit
fingerprints for an FBI criminal history
records checks of individuals being
considered for unescorted access to
radioactive materials subject to NRC
regulations. Therefore, in accordance
with Section 149 of the AEA, as
amended by the EPAct, the Commission
is imposing the FBI criminal history
records check requirements, as set forth
in this Order, including Attachment 2 to
this Order, on all Licensees identified in
Attachment 1 to this Order, who possess
risk-significant radioactive materials
equal to or greater than the quantities
listed in Attachment 3 to this Order.
These requirements will remain in effect
until the Commission determines
otherwise.
This Order also modifies the M&D
Order (EA–03–225 or EA–05–126M), to
reflect recent Commission regulatory
actions. The ASMs for M&D Licensees
are modified to be consistent with (1)
the ‘‘Order Imposing Additional
Security Measures on the
Transportation of Radioactive Materials
Quantities of Concern’’ (EA–05–006), (2)
the final rule on the Export and Import
of Radioactive Material: Security
Policies (70 FR 37985 and 46066), dated
July 1, 2005, (3) the Order Imposing
Increased Controls (EA–05–090), and (4)
the International Atomic Energy Agency
(IAEA) Code of Conduct on the Safety
and Security of Radioactive Sources.
In addition, pursuant to 10 CFR 2.202,
I find that in light of the common
defense and security matters identified
above, which warrant the issuance of
this Order, the public health, safety, and
interest require that this Order be
effective immediately.
III
Accordingly, pursuant to Sections 81,
149, 161b, 161i, 161o, 182, and 186 of
the AEA of 1954, as amended, and the
Commission’s regulations in 10 CFR
2.202, 10 CFR Part 30, and 10 CFR Part
32, It is hereby ordered, effective
immediately, that all licensees
identified in Attachment 1 to this order
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]]>Agencies
[Federal Register Volume 71, Number 208 (Friday, October 27, 2006)]
[Notices]
[Pages 63043-63046]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-18052]
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NUCLEAR REGULATORY COMMISSION
[EA-06-248]
In the Matter of Holders of Material Licenses Authorized To Use
Sealed Sources in Panoramic and Underwater Irradiators and Possess
Greater Than 370 Terabecquerels (10,000 Curies); Order Imposing
Fingerprinting and Criminal History Records Check Requirements for
Unescorted Access to Certain Radioactive Material and Modification of
the Compensatory Measures (Effective Immediately)
I
The Licensees identified in Attachment 1 \1\ to this Order hold
licenses issued in accordance with the Atomic Energy Act (AEA) of 1954,
as amended, by the U.S. Nuclear Regulatory Commission (NRC or
Commission) or Agreement States, authorizing possession of greater than
370 Terabecquerels (10,000 curies) of byproduct material, in the form
of sealed sources, either in panoramic irradiators that have dry or wet
storage of the sealed sources, or in underwater irradiators in which
both the source and the product being irradiated are underwater. On
August 8, 2005, the Energy Policy Act of 2005 (EPAct) was enacted.
Section 652 of the EPAct amended Section 149 of the AEA to require
fingerprinting and a Federal Bureau of Investigation (FBI)
identification and criminal history records check of any person who is
permitted unescorted access to radioactive materials subject to
regulation by the Commission, and which the Commission determines to be
of such significance to the public health and safety or the common
defense and security as to warrant fingerprinting and background
checks. NRC has decided to implement this requirement, in part, prior
to the completion of the rulemaking to implement the provisions under
the EPAct, which is underway, because a deliberate malevolent act by an
individual with unescorted access to these radioactive materials has a
potential to result in significant adverse impacts to the public health
and safety or the common defense and security. Those exempted, from
fingerprinting requirements under 10 CFR 73.59 (71 FR 33,989 (June 13,
2006)) for access to Safeguards Information \2\ (SGI) are also exempt
from the fingerprinting requirements under this Order. In addition,
individuals who have a favorably-decided U.S. Government criminal
history record check within the last five (5) years, or individuals who
have an active federal security clearance (provided in each case that
they make available the appropriate documentation), have satisfied the
EPAct fingerprinting requirement and need not be fingerprinted again.
Individuals who have been fingerprinted and granted access to SGI by
the reviewing official under Order EA-06-155 do not need to be
fingerprinted again.
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\1\ Attachment 1 contains sensitive information and will not be
released to the public.
\2\ Safeguards Information is a form of sensitive, unclassified,
security-related information that the Commission has the authority
to designate and protect under section 147 of the AEA.
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II
Subsequent to the terrorist events of September 11, 2001, the NRC
issued a security Order requiring certain large panoramic and
underwater irradiator licensees to implement Compensatory Measures
(CMs) for radioactive materials. The requirements imposed by that Order
(Irradiator Order), and measures licensees have developed to comply
with that Order, were designated by the NRC as SGI and were not
released to the public. One specific CM imposed by the Irradiator Order
required licensees to conduct local criminal history checks to
determine the trustworthiness and reliability of individuals needing
unescorted access to the panoramic or underwater irradiator sealed
sources. ``Access,'' means that an individual could exercise some
physical control over the material or device. At that time, the NRC did
not have the authority, except in the case of power reactor licensees,
to require licensees to submit fingerprints for FBI criminal history
records checks of individuals being considered for unescorted access to
radioactive materials subject to NRC regulations. Therefore, in
accordance with Section 149 of the AEA, as amended by the EPAct, the
Commission is imposing the FBI criminal history records check
requirements, as set forth in this Order, including Attachment 2 to
this Order, on all Licensees identified in Attachment 1 to this Order,
that possess greater than 370 Terabecquerels (10,000 curies) of
byproduct material in the form of sealed sources. These requirements
will remain in effect until the Commission determines otherwise.
In addition, pursuant to 10 CFR 2.202, find that in light of the
common defense and security matters identified above, which warrant the
issuance of this Order, the public health, safety, and interest require
that this Order be effective immediately.
III
Accordingly, pursuant to Sections 81, 149, 161b, 161i, 161o, 182,
and 186 of the AEA of 1954, as amended, and the Commission's
regulations in 10 CFR 2.202, 10 CFR Part 30, and 10 CFR Part 36, it is
hereby ordered, effective immediately, that all licensees identified in
attachment 1 to this order shall comply with the requirements set forth
in this order.
A. All licensees identified in Attachment 1 to this Order shall
comply with the following requirements:
1. The Licensee shall, within twenty (20) days of the date of this
Order, establish and maintain a fingerprinting program that meets the
requirements of Attachment 2 to this Order, for unescorted access to
the panoramic or underwater irradiator sealed sources.
2. The Licensee shall, in writing, within twenty (20) days of the
date of this Order, notify, the Commission (1) receipt and confirmation
that compliance with the Order will be achieved, or (2) if it is unable
to comply with any of the requirements described in Attachment 2, or
(3) if compliance with any of the requirements is unnecessary in its
specific circumstances. The notification shall provide the Licensee's
justification for seeking relief from, or variation of, any specific
requirement.
B. In accordance with the NRC's ``Order Imposing Fingerprinting and
Criminal History Check Requirements for Access to Safeguards
Information'' (EA-06-155) issued on August 21, 2006, only the NRC-
approved reviewing official shall review results from an FBI criminal
history records check. The reviewing official shall determine whether
an individual may have, or continue to have, unescorted access to the
panoramic or underwater irradiator sealed sources that equal or exceed
370 Terabecquerels (10,000 curies). Fingerprinting and the FBI
identification and criminal history records check are not required for
individuals exempted from fingerprinting requirements under 10 CFR
73.59 [71 FR 33,989 (June 13, 2006)] for access to SGI. In addition,
individuals who have a favorably decided U.S. Government criminal
[[Page 63044]]
history records check within the last five (5) years, or have an active
federal security clearance, (provided in each case that the appropriate
documentation is made available to the Licensee's reviewing official)
have satisfied the EPAct fingerprinting requirement and need not be
fingerprinted again.
C. Fingerprints shall be submitted and reviewed in accordance with
the procedures described in Attachment 2 to this Order. Individuals who
have been fingerprinted and granted access to SGI by the reviewing
official under Order EA-06-155 do not need to be fingerprinted again.
D. The Licensee may allow any individual who currently has
unescorted access to the panoramic or underwater irradiator sealed
sources, in accordance with the Irradiator Order, to continue to have
unescorted access without being fingerprinted, pending a decision by
the reviewing official (based on fingerprinting, an FBI criminal
history records check and a trustworthy and reliability determination)
that the individual may continue to have unescorted access to the
panoramic or underwater irradiator sealed sources. The licensee shall
complete implementation of the requirements of Attachment 2 to this
Order by January 15, 2007.
E. The CMs of the Irradiator Order are modified as follows:
1. The requirement for a local criminal history check in CM 2.A.ii.
is superceded by the FBI criminal history records check. All other
requirements in CM 2.A.ii are still applicable.
Licensee responses to Condition A.2. shall be submitted to the
Director, Office of Federal and State Materials and Environmental
Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001. In addition, Licensee responses shall be marked as
``Security-Related Information--Withhold Under 10 CFR 2.390.''
The Director, Office of Federal and State Materials and
Environmental Management Programs, may, in writing, relax or rescind
any of the above conditions upon demonstration of good cause by the
Licensee.
IV
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order, and may request a hearing on this Order, within twenty (20) days
of the date of this Order. Where good cause is shown, consideration
will be given to extending the time to request a hearing. A request for
extension of time in which to submit an answer or request a hearing
must be made in writing to the Director, Office of Federal and State
Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, and include a statement of
good cause for the extension. The answer may consent to this Order.
Unless the answer consents to this Order, the answer shall, in writing
and under oath or affirmation, specifically set forth the matters of
fact and law on which the Licensee or other person adversely affected
relies and the reasons as to why the Order should not have been issued.
Any answer or request for a hearing shall be submitted to the
Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission,
Attn: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies
also shall be sent to the Director, Office of Federal and State
Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, to the Assistant General
Counsel for Materials Litigation and Enforcement at the same address,
and to the Licensee if the answer or hearing request is by a person
other than the Licensee. Because of possible delays in delivery of mail
to United States Government offices, it is requested that answers and
requests for hearing be transmitted to the Secretary of the Commission
either by means of facsimile transmission to (301)-415-1101, or by e-
mail to hearingdocket@nrc.gov and also to the Office of the General
Counsel, either by means of facsimile transmission to (301)-415-3725,
or by e-mail to OGCMailCenter@nrc.gov. If a person other than the
Licensee requests a hearing, that person shall set forth with
particularity the manner in which his/her interest is adversely
affected by this Order and shall address the criteria set forth in 10
CFR 2.309.
If a hearing is requested by the Licensee or a person whose
interest is adversely affected, the Commission will issue an Order
designating the time and place of any hearing. If a hearing is held,
the issue to be considered at such hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to
demanding a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on grounds that the Order, including the need for immediate
effectiveness, is not based on adequate evidence, but on mere
suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, the provisions as
specified above in Section III shall be final twenty (20) days from the
date of this Order, without further Order or proceedings.
If an extension of time for requesting a hearing has been approved,
the provisions as specified above in Section III shall be final when
the extension expires, if a hearing request has not been received. An
answer or a request for hearing shall not stay the immediate
effectiveness of this order.
Dated this 17th day of October 2006.
For the Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials and Environmental
Management Programs.
Attachment 1--List of Applicable Materials Licensees Redacted
Attachment 2--Requirements for Fingerprinting and Criminal History
Checks of Individuals When Licensee's Reviewing Official Is Determining
Unescorted Access to the Panoramic or Underwater Irradiator Sealed
Sources Subject to EA-06-248
General Requirements
Licensees shall comply with the following requirements of this
attachment.
1. Each Licensee subject to the provisions of this attachment shall
fingerprint each individual who is seeking or permitted unescorted
access to the panoramic or underwater irradiator sealed sources. The
Licensee shall review and use the information received from the Federal
Bureau of Investigation (FBI) and ensure that the provisions contained
in the subject Order and this attachment are satisfied.
2. The Licensee shall notify each affected individual that the
fingerprints will be used to secure a review of his/her criminal
history record and inform the individual of the procedures for revising
the record or including an explanation in the record, as specified in
the ``Right to Correct and Complete Information'' section of this
attachment.
3. Fingerprints for unescorted access need not be taken if an
employed individual (e.g., a Licensee employee, contractor,
manufacturer, or supplier) is relieved from the fingerprinting
requirement by 10 CFR 73.59 for access to Safeguards Information, has a
favorably-decided U.S. Government criminal history check within the
last five (5) years, or has an active federal security clearance.
Written confirmation from the Agency/employer which granted the federal
security clearance or reviewed the criminal history check must be
provided for either of the latter
[[Page 63045]]
two cases. The Licensee must retain this documentation for a period of
three (3) years from the date the individual no longer requires
unescorted access to radioactive materials associated with the
Licensee's activities.
4. All fingerprints obtained by the Licensee pursuant to this Order
must be submitted to the Commission for transmission to the FBI.
5. The Licensee shall review the information received from the FBI
and consider it, in conjunction with the trustworthy and reliability
requirements of the Irradiator Order, in making a determination whether
to grant, or continue to allow, unescorted access to radioactive
materials.
6. The Licensee shall use any information obtained as part of a
criminal history records check solely for the purpose of determining an
individual's suitability for unescorted access to the panoramic or
underwater irradiator sealed sources.
7. The Licensee shall document the basis for its determination
whether to grant, or continue to allow, unescorted access to the
panoramic or underwater irradiator sealed sources.
Prohibitions
A Licensee shall not base a final determination to deny an
individual access to radioactive materials solely on the basis of
information received from the FBI involving: An arrest more than one
(1) year old for which there is no information of the disposition of
the case, or an arrest that resulted in dismissal of the charge or an
acquittal.
A Licensee shall not use information received from a criminal
history check obtained pursuant to this Order in a manner that would
infringe upon the rights of any individual under the First Amendment to
the Constitution of the United States, nor shall the Licensee use the
information in any way which would discriminate among individuals on
the basis of race, religion, national origin, sex, or age.
Procedures for Processing Fingerprint Checks
For the purpose of complying with this Order, Licensees shall,
using an appropriate method listed in 10 CFR 73.4, submit to the NRC's
Division of Facilities and Security, Mail Stop T-6E46, one completed,
legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where
practicable, other fingerprint records for each individual seeking
unescorted access to the panoramic or underwater irradiator sealed
sources, to the Director of the 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 e-mail to
forms@nrc.gov. Practicable alternative formats are set forth in 10 CFR
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.
The NRC will review submitted fingerprint cards for completeness.
Any Form FD-258 fingerprint record containing omissions or evident
errors will be returned to the Licensee for corrections. The fee for
processing fingerprint checks includes one re-submission if the initial
submission is returned by the FBI because the fingerprint impressions
cannot be classified. The one free re-submission must have the FBI
Transaction Control Number reflected on the re-submission. If
additional submissions are necessary, they will be treated as initial
submittals and will require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application.
Licensees shall submit payment with the application for processing
fingerprints by corporate check, certified check, cashier's check,
money order, or electronic payment, made payable to ``U.S. NRC.'' [For
guidance on making electronic payments, contact the Facilities Security
Branch, Division of Facilities and Security, at (301) 415-7404].
Combined payment for multiple applications is acceptable. The
application fee (currently $27) 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 NRC processing fee, which
covers administrative costs associated with NRC handling of Licensee
fingerprint submissions. The Commission will directly notify Licensees
who are subject to this regulation of any fee changes.
The Commission will forward to the submitting Licensee all data
received from the FBI as a result of the Licensee's application(s) for
criminal history checks, including the FBI fingerprint record.
Right To Correct and Complete Information
Prior to any final adverse determination, the Licensee shall make
available to the individual the contents of any criminal records
obtained from the FBI for the purpose of assuring correct and complete
information. Written confirmation by the individual of receipt of this
notification must be maintained by the Licensee for a period of one (1)
year from the date of the notification.
If, after reviewing the record, an individual believes that it is
incorrect or incomplete in any respect and wishes to change, correct,
or update the alleged deficiency, or to explain any matter in the
record, the individual may initiate challenge procedures. These
procedures include either direct application by the individual
challenging the record to the agency (i.e., law enforcement agency)
that contributed the questioned information, or direct challenge as to
the accuracy or completeness of any entry on the criminal history
record to the Assistant Director, Federal Bureau of Investigation
Identification Division, Washington, DC 20537-9700 (as set forth in 28
CFR 16.30 through 16.34). In the latter case, the FBI forwards the
challenge to the agency that submitted the data and requests that
agency to verify or correct the challenged entry. Upon receipt of an
official communication directly from the agency that contributed the
original information, the FBI Identification Division makes any changes
necessary in accordance with the information supplied by that agency.
The Licensee must provide at least ten (10) days for an individual to
initiate an action challenging the results of an FBI criminal history
records check after the record is made available for his/her review.
The Licensee may make a final determination on unescorted access to the
panoramic or underwater irradiator sealed sources based upon the
criminal history record only upon receipt of the FBI's ultimate
confirmation or correction of the record. Upon a final adverse
determination on unescorted access to the panoramic or underwater
irradiator sealed sources, the Licensee shall provide the individual
its documented basis for denial. Unescorted access to the panoramic or
underwater irradiator sealed sources shall not be granted to an
individual during the review process.
Protection of Information
1. Each Licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a system
of files and procedures for protecting the record and the personal
information from unauthorized disclosure.
2. The Licensee may not disclose the record or personal information
collected and maintained to persons other than
[[Page 63046]]
the subject individual, his/her representative, or to those who have a
need to access the information in performing assigned duties in the
process of determining unescorted access to the panoramic or underwater
irradiator sealed sources. No individual authorized to have access to
the information may re-disseminate the information to any other
individual who does not have a need-to-know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another Licensee if
the Licensee holding the criminal history record receives the
individual's written request to re-disseminate the information
contained in his/her file, and the gaining Licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics for
identification purposes.
4. The Licensee shall make criminal history records, obtained under
this section, available for examination by an authorized representative
of the NRC to determine compliance with the regulations and laws.
5. The licensee shall retain all fingerprint and criminal history
records received from the FBI, or a copy if the individual's file has
been transferred, for three (3) years after termination of employment
or denial to unescorted access to the panoramic or underwater
irradiator sealed sources. After the required three (3) year period,
these documents shall be destroyed by a method that will prevent
reconstruction of the information in whole or in part.
[FR Doc. E6-18052 Filed 10-26-06; 8:45 am]
BILLING CODE 7590-01-P
