In the Matter of Certificate Holders and All Other Persons Who Seek or Obtain Authorized Unescorted Access to Radioactive Material or Other Property Described Herein; Order Imposing Fingerprinting and Criminal History Records Check Requirements for Unescorted Access to Certain Radioactive Material or Other Property (Effective Immediately), 25792-25795 [E7-8762]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 72, Number 87 (Monday, May 7, 2007)]
[Notices]
[Pages 25792-25795]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-8762]


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NUCLEAR REGULATORY COMMISSION

[EA-07-087]


In the Matter of Certificate Holders and All Other Persons Who 
Seek or Obtain Authorized Unescorted Access to Radioactive Material or 
Other Property Described Herein; Order Imposing Fingerprinting and 
Criminal History Records Check Requirements for Unescorted Access to 
Certain Radioactive Material or Other Property (Effective Immediately)

I

    The Certificate Holders identified in Attachment 1 to this Order 
hold certificates issued in accordance with the Atomic Energy Act (AEA) 
of 1954, as amended, by the U.S. Nuclear Regulatory Commission (NRC), 
authorizing them to possess radioactive material. 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 individual who is permitted unescorted 
access to radioactive material or other property 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. Though a 
rulemaking to implement the fingerprinting provisions of the EPAct is 
currently underway, the NRC has decided to implement this requirement, 
in part, prior to the completion of the rulemaking, because a 
deliberate malevolent act by an individual with unescorted access to 
radioactive material or other property 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 73.61 
[72 Federal Register 4945 (February 2, 2007)] are also exempt from the 
fingerprinting requirements under this Order. In addition, individuals 
who have had a favorably-decided U.S. Government criminal history 
records check within the last five (5) years, or individuals who have 
an active federal security clearance (provided in either case that they 
make available the appropriate documentation), have satisfied the EPAct 
fingerprinting requirement and need not be fingerprinted again.
    Subsequent to the terrorist events of September 11, 2001, the NRC 
issued security Orders requiring certain entities to implement 
Additional Security Measures (ASMs) or Interim Compensatory Measures 
(ICMs) for certain radioactive material. These Orders included a local 
criminal history records check to determine trustworthiness and 
reliability of individuals needing unescorted access to radioactive 
material or other property. ``Access'' means that an individual could 
exercise some physical control over the material or device. In 
accordance with Section 149 of the AEA, as amended by the EPAct, the 
Commission is imposing FBI criminal history records check requirements, 
for all individuals allowed unescorted access to protected areas, 
secure areas, and other areas, as applicable, as set forth in the 
Order, for the Certificate Holders identified in Attachment 1 to this 
Order. These requirements will remain in effect until the Commission 
determines otherwise. 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.

[[Page 25793]]

II

    Accordingly, pursuant to Sections 53, 62, 63, 81, 147, 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 73 and 10 CFR 
Part 76, it is hereby ordered, effective immediately, that all 
certificate holders identified in attachment 1 and all other persons 
who seek or obtain unescorted access to radioactive material or other 
property described herein shall comply with the requirements set forth 
in this Order.
    A. All Certificate Holders identified in Attachment 1 to this Order 
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 radioactive 
material or other property.
    B. All Certificate Holders identified in Attachment 1 to this Order 
shall, within twenty (20) days of the date of this Order, submit the 
fingerprints of one (1) Individual who: (1) The Certificate Holder 
nominates as the ``reviewing official'' for determining unescorted 
access to radioactive material or other property by other individuals; 
and (2) has been determined to be trustworthy and reliable in 
accordance with the requirements described in Attachment 3 to this 
Order. The NRC will determine whether this individual (or any 
subsequent reviewing official) may have unescorted access to 
radioactive material or other property, and therefore, will be 
permitted to serve as the Certificate Holder's reviewing official.\1\
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    \1\ The NRC's determination of this individual's unescorted 
access to radioactive material or other property, in accordance with 
the process described in Enclosure 3 [available through NRC's 
Agencywide Documents Access and Management System (ADAMS)] to the 
transmittal letter of this Order, is an administrative determination 
that is outside the scope of this Order.
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    C. All Certificate Holders identified in Attachment 1 to this Order 
shall, in writing, within twenty (20) days from the date of this Order, 
notify the Commission: (1) Of receipt and confirmation that compliance 
with the Order will be achieved, (2) if unable to comply with any of 
the requirements described in Attachment 2, or (3) if compliance with 
any of the requirements are unnecessary in its specific circumstances. 
The notification shall provide the Certificate Holder's justification 
for seeking relief from, or variation of, any specific requirement.
    D. Only a NRC-approved reviewing official shall review the results 
of a FBI criminal history records check. The reviewing official shall 
determine whether an individual may have, or continue to have, 
unescorted access to radioactive material or other property. 
Fingerprinting and the FBI identification and criminal history records 
check are not required for individuals that are exempted from 
fingerprinting requirements under 10 CFR 73.61 [72 FR 4945 (February 2, 
2007)]. In addition, individuals who have had a favorably-decided U.S. 
Government criminal 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 
Certificate Holder's reviewing official), have satisfied the EPAct 
fingerprinting requirement and need not be fingerprinted again.
    E. Fingerprints shall be submitted and the results of the FBI 
criminal history records check be reviewed in accordance with the 
procedures described in Attachment 2 to this Order. No person may have 
access to Safeguards Information or unescorted access to any 
radioactive material or property subject to regulation by the NRC if 
the NRC has determined, in accordance with its administrative review 
process based on fingerprinting and an FBI identification and criminal 
history records check, either that the person may not have access to 
Safeguards Information or that the person may not have unescorted 
access to radioactive material or property subject to regulation by 
NRC.
    F. The Certificate Holder may allow any individual who currently 
has unescorted access to radioactive material or other property, in 
accordance with the ASM or ICM Security Orders, to continue to have 
unescorted access, pending a decision by the reviewing official (based 
on fingerprinting, an FBI criminal history records check and a 
trustworthiness and reliability determination) that the individual may 
continue to have unescorted access to radioactive material or other 
property. The Certificate Holder shall complete implementation of the 
requirements of Attachment 2 to this Order within ninety (90) days from 
the date of issuance of this Order.
    Certificate Holder responses to Condition B. and C. shall be 
submitted to the Director, Office of Nuclear Material Safety and 
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. 
In addition, Certificate Holder responses shall be marked as 
``Security-Related Information--Withhold Under 10 CFR 2.390.''
    The Director, Office of Nuclear Material Safety and Safeguards, 
may, in writing, relax or rescind any of the above conditions upon 
demonstration of good cause by the Certificate Holder.

III

    In accordance with 10 CFR 2.202, the Certificate Holder must, and 
any other person adversely affected by this Order, may submit an answer 
to this Order, and may request a hearing regarding this Order, within 
twenty (20) days from 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 an extension of time in which to submit an 
answer or request a hearing must be made in writing to the Director, 
Office of Nuclear Material Safety and Safeguards, 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 for which the Certificate Holder 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 shall also be sent to the Director, Office of Nuclear 
Material Safety and Safeguards, 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 
Certificatee, if the answer or hearing request is by an individual 
other than the Certificatee. 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 via 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 via e-mail to OGCMailCenter@nrc.gov. If a person other 
than the Certificate Holder 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 Certificate Holder or an 
individual whose interest is adversely affected, the

[[Page 25794]]

Commission will issue an Order designating the time and place of a 
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 Certificate Holder may, in 
addition to demanding a hearing, at the time the answer is filed, or 
sooner, move that the presiding officer set aside the immediate 
effectiveness of the Order on the 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 a hearing shall not stay the immediate 
effectiveness of this order.

    Dated this 30th day of April 2007.

    For the Nuclear Regulatory Commission.
Michael F. Weber,
Director, Office of Nuclear Material, Safety and Safeguards.

Attachment 1--List of Applicable Certificate Holders

Certificate No. GDP-0001
Docket No.: 70-7001
USEC--Paducah

Certificate No. GDP-0002
Docket No.: 70-7002
USEC--Portsmouth

Attachment 2--Requirements for Fingerprinting and Criminal History 
Records Checks of Individuals When Licensee's Reviewing Official Is 
Determining Unescorted Access to Radioactive Material or Other Property

    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 radioactive material or other property. 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 73.61 for unescorted access, has had a 
favorably-decided U.S. Government criminal history records 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 records check must be provided. The Licensee must retain 
this documentation for a period of three (3) years from the date the 
individual no longer requires unescorted access to radioactive 
material or other property 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's Reviewing Official shall review the 
information received from the FBI and consider it, in conjunction 
with the trustworthiness and reliability requirements established by 
the previous ASM or ICM Security Orders, in making a determination 
whether to grant, or continue to allow, unescorted access to 
radioactive material or other property.
    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 radioactive 
material or other property.
    7. The Licensee shall document the basis for its determination 
whether to grant, or continue to allow, unescorted access to the 
radioactive material or other property.

Prohibitions

    A Licensee shall not base a final determination to deny an 
individual access to radioactive material or other property solely 
on information received from the FBI involving an arrest more than 
one (1) year old, for which there is no information as to 
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 records 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 
Nuclear Regulatory Commission's (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 radioactive material or other property, 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 via 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 resubmission. 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 records 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 the 
record 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

[[Page 25795]]

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 allow 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 for unescorted access to radioactive 
material or other property based on the criminal history records 
check, only upon receipt of the FBI's ultimate confirmation or 
correction of the record. Upon a final adverse determination for 
unescorted access to radioactive material or other property, the 
Licensee shall provide the individual its documented basis for 
denial. During this review process for assuring correct and complete 
information, unescorted access to radioactive material or other 
property shall not be granted to an individual.

Protection of Information

    1. Each Licensee who obtains a criminal history records check 
for 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 nor personal 
information collected and maintained to persons other than the 
subject individual, his/her representative, or to those who have a 
need to access the information in performing assigned duties in the 
process of determining unescorted access to the radioactive material 
or other property. No individual authorized to have access to the 
information may redisseminate 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 records 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 
radioactive material or other property. 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.

Attachment 3--Trustworthiness and Reliability Requirements

    In order to ensure the safe handling, use, and control 
radioactive material or other property, each licensee shall control 
and limit access to radioactive material or other property to those 
individuals who have established the need-to-know, and are 
considered to be trustworthy and reliable. Licensees shall document 
the basis for concluding that there is reasonable assurance that the 
individuals that are granted unescorted access to radioactive 
material or other property are trustworthy and reliable, and do not 
constitute an unreasonable risk for malevolent activities.
    The Licensee shall comply with the requirements of this 
Attachment:
    1. The trustworthiness and reliability of an individual shall be 
determined based on a background investigation:
    (a) The background investigation shall address at least the past 
three (3) years, and, at a minimum, include verification of 
employment, education, and personal references. The licensee shall 
also, to the extent possible, obtain independent information to 
corroborate the information provided by the employee (i.e., seeking 
references not supplied by the individual).
    (b) If an individual's employment has been less than the 
required three (3) year period, educational references may be used 
in lieu of employment history.
The licensee's background investigation requirements may be 
satisfied for an individual that has an active Federal security 
clearance.
    2. The licensee shall retain documentation regarding the 
trustworthiness and reliability of individual employees for three 
years after the individual's employment ends.

[FR Doc. E7-8762 Filed 5-4-07; 8:45 am]
BILLING CODE 7590-01-P