Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Applicability.
This section applies to any licensee who possesses, or is
authorized to possess, radioactive material that is:
(1) listed in Table 1 ("Radionuclides of
Concern") of this section; and
(2)
in a quantity equal to or exceeding that listed in Table 1 of this
section.
(b)
Definitions.
(1)
Trustworthiness and Reliability (T&R) Official means an
individual appointed by the licensee who is responsible for determining the
trustworthiness and reliability of another individual requiring unescorted
access to one or more radioactive materials identified in Table 1 of this
section.
(2)
Affected
individual means an individual who has or is seeking unescorted access
to radioactive material identified in Table 1 of this section in a quantity
equal to or exceeding that listed in Table 1 of this section.
(3)
Unescorted access means
access without an escort to radioactive material identified in Table 1 of this
section which is in a quantity equal to or exceeding that listed in Table 1 of
this section.
(c) The
T&R official, if he/she does not require unescorted access, must be deemed
trustworthy and reliable by the licensee in accordance with its increased
controls license conditions before making a determination regarding the
trustworthiness and reliability of another individual. If the T&R official
requires unescorted access, the licensee must consider the results of the
Federal Bureau of Investigation (FBI) identification and criminal history
records check before approving a T&R official.
(d) Prior to requesting fingerprints from any
individual, the licensee shall provide a copy of this section to that
person.
(e) Upon receipt of the
results of FBI identification and criminal history records checks, the licensee
shall control such information as specified in subdivision (i) of this section
and its increased controls license conditions.
(f)
Specific requirements pertaining to
fingerprinting and criminal history records checks.
(1) Each licensee subject to the provisions
of this section shall fingerprint each affected individual.
(2) For affected individuals employed by the
licensee for three years or less, and for affected individuals who are
nonlicensee personnel, such as physicians, physicists, house-keeping personnel,
and security personnel under contract, trustworthiness and reliability shall be
determined, at a minimum, by verifying employment history, education, personal
references, and fingerprinting and the review of an FBI identification and
criminal history records check.
(3)
The licensee shall also, obtain independent information to corroborate that
provided by the employee (e.g., seeking references not
supplied by the individual). For an affected individual employed by the
licensee for longer than three years, trustworthiness and reliability shall be
determined, at a minimum, by a review of the employees' employment history with
the licensee and fingerprinting and an FBI identification and criminal history
records check.
(4) Service provider
licensee employees who are affected individuals shall be escorted unless they
are determined to be trustworthy and reliable by a NRC-required background
investigation. Written verification attesting to or certifying the person's
trustworthiness and reliability shall be obtained by the licensee from the
licensee providing the service.
(5)
The licensee must submit one completed, legible standard FBI fingerprint card
(Form FD-258,ORIMDNRCOOOZ)1 for each affected
individual, to the NRC's Division of Facilities and Security. The name and
address of the individual (T&R official) to whom the criminal history
records should be returned must be included with the submission.
(6) The licensee shall review and use the
information received from the FBI identification and criminal history records
check as part of its trustworthiness and reliability determination required by
its increased controls license conditions.
(7) The licensee shall notify each affected
individual that his/her fingerprints will be used to secure a review of his/her
criminal history record and inform the affected individual of the procedures
for revising the record or including an explanation in the record, as specified
in subdivision (h) of this section.
(8) Fingerprints for unescorted access need
not be taken if an employed individual (
e.g., a licensee
employee, contractor, manufacturer, or supplier) is:
(i) an employee of the United States (U.S.)
Nuclear Regulatory Commission (NRC) or of the Executive Branch of the U.S.
Government who has undergone fingerprinting for a prior U.S. Government
criminal history check;
(ii) a
member of Congress;
(iii) an
employee of a member of Congress or congressional committee who has undergone
fingerprinting for a prior U.S. Government criminal history check;
(iv) the Governor or his or her designated
State employee representative;
(v)
Federal, State, or local law enforcement personnel;
(vi) State Radiation Control Program
directors and State homeland security advisors or their designated State
employee representatives;
(vii)
representatives of the International Atomic Energy Agency (IAEA) engaged in
activities associated with the U.S./IAEA safeguards agreement who have been
certified by the NRC; or
(viii)
documentation is provided which demonstrates that the employed individual has
been favorably-decided by a U.S. Government program involving fingerprinting
and an FBI identification and criminal history records check within the last
five calendar years of the effective date of this regulation, or documentation
is provided which demonstrates that any person has an active Federal security
clearance. Written confirmation from the agency/employer which granted the
Federal security clearance or reviewed the FBI criminal history records results
based upon a fingerprint identification check must be provided. The licensee
must retain this documentation for a period of three years from the date the
employed individual no longer requires unescorted access associated with the
licensee's activities.
(9) All fingerprints obtained by the licensee
pursuant to this section must be submitted to the NRC. Additionally, the
licensee shall submit a certification of the trustworthiness and reliability of
the T&R official as determined in accordance with subdivision (c) of this
section to the NRC with each submission of fingerprints.
(10) The licensee shall review and use the
information received from the FBI identification and criminal history records
check and consider it as part of its trustworthiness and reliability
determination, in conjunction with the trustworthiness and reliability
requirements set forth in its increased controls license conditions, in making
a determination whether to grant an affected individual unescorted access. The
licensee shall use any information obtained from a criminal history records
check solely for the purpose of determining an affected individual's
suitability for unescorted access.
(11) The licensee shall document the basis
for its determination whether to grant, or continue to allow, an affected
individual unescorted access.
(12)
Licensees shall notify the department and the U.S. NRC headquarters operations
office by telephone within 24 hours if the results from a FBI identification
and criminal history records check indicate an individual is listed on the FBI
terrorist screening data base.
(g)
Prohibitions.
(1) A licensee shall not base a final
determination to deny an affected individual unescorted access solely on the
basis of information received from the FBI involving:
(i) an arrest more than one year old for
which there is no information regarding the disposition of the case;
or
(ii) an arrest that resulted in
dismissal of the charge or an acquittal.
(2) A licensee shall not use information
received from a criminal history records check obtained pursuant to this
section in a manner that would infringe upon the rights of any individual under
the First Amendment to the Constitution of the United States or article 1 of
the New York State Constitution, 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.
(h)
Right to correct and complete
information.
Prior to any final adverse determination, the licensee
shall make available to the affected 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 year from
the date of the notification. If, after reviewing the record, an affected
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 a direct application by the individual challenging
the record to the agency (i.e., law enforcement agency) that
contributed the questioned information, or a direct challenge as to the
accuracy or completeness of any entry on the criminal history record to the FBI
Identification Division.2 The licensee must provide
at least 10 days for an individual to initiate an action challenging the
results of a FBI criminal history records check after the record is made
available for his/her review. The licensee may make a final unescorted access
determination based upon an individual's criminal history record only upon
receipt of the FBI's confirmation or correction of the record. Upon a final
adverse determination on unescorted access the licensee shall provide the
individual its documented basis for denial. Unescorted access shall not be
granted to an individual during the review process.
(i)
Protection of information.
(1) Each licensee who obtains a criminal
history record on an affected individual pursuant to this section shall
establish and maintain a system of files and procedures for protecting the
record and the personal information in the record from unauthorized
disclosure.
(2) The licensee may
not disclose the record or personal information collected and maintained to
persons other than the affected 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. No individual authorized to have
access to the information may disseminate the information to any other
individual whose job duties do not require such information.
(3) The personal information obtained on an
affected individual from a criminal history record check may be transferred to
another licensee if the licensee holding the criminal history record check
receives the affected individual's written request to provide the information
contained in his/her file, and the receiving licensee verifies information such
as the affected 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 department to determine
compliance with this section.
(5)
The licensee shall retain all fingerprint and criminal history records from the
FBI, or a copy if the affected individual's file has been transferred, for
three years after termination of employment or determination of unescorted
access (whether unescorted access was approved or denied). After the required
three-year period, these documents shall be destroyed by a method that will
prevent reconstruction of the information in whole or in part.
Table 1: Radionuclides of Concern
|
Radionuclide |
Quantity
of |
Quantity
of |
|
Concern1 (TBq) |
Concern2 (Ci) |
| Am-241 |
0.6 |
16 |
| Am-241/Be |
0.6 |
16 |
| Cf-252 |
0.2 |
5.4 |
| Cm-244 |
0.5 |
14 |
| Co-60 |
0.3 |
8.1 |
| Cs-137 |
1 |
27 |
| Gd-153 |
10 |
270 |
| Ir-192 |
0.8 |
22 |
| Pm-147 |
400 |
11,000 |
| Pu-238 |
0.6 |
16 |
| Pu-239/Be |
0.6 |
16 |
| Ra-226 |
0.4 |
11 |
| Se-75 |
2 |
54 |
| Sr-90 (Y-90) |
10 |
270 |
| Tm-170 |
200 |
5,400 |
| Yb-169 |
3 |
81 |
| Combinations of radioactive materials listed
above3 |
See footnote below4 |
1 The aggregate activity of
multiple, collocated sources of the same radionuclide should be included when
the total activity equals or exceeds the quantity of concern.
2 The primary values used for compliance with this
Order are tera becquerel (TBq). 3 Radioactive
materials are to be considered aggregated or co-located if breaching a common
physical security barrier (e.g., a locked door at the entrance
to a storage room) would allow access to the radioactive material or devices
containing the radioactive material. 4 If several
radionuclides are aggregated, the sum of the ratios of the activity of each
source, i of radionuclide, n,
A(i,n),
to the quantity of concern for radionuclide n,
Q(n), listed for that radionuclide
equals or exceeds one. That is:
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Footnotes
1 Copies of these forms may be obtained from NRC. 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. Licensees must have fingerprints
taken by local law enforcement (or a private entity authorized to take
fingerprints) because an authorized official must certify the identity of the
person being fingerprinted. If the FBI advises the fingerprints are
unclassifiable based on conditions other than poor quality, the Licensee must
submit a request to NRC for alternatives. When those search results are
received from the FBI, no further search is necessary. The NRC will receive and
forward to the submitting Licensee all data from the FBI as a result of the
Licensee's application(s) for criminal history records checks, including the
FBI fingerprint record(s).
2 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 (see 28 CFR parts 16.30 through
16.34).
