[Federal Register Volume 72, Number 87 (Monday, May 7, 2007)]
[Notices]
[Pages 25789-25792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8666]


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NUCLEAR REGULATORY COMMISSION

[EA-07-086]


In the Matter of Certain Fuel Cycle Licensees 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 Licensees identified in Attachment 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), 
authorizing them to possess radioactive materials. 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 particular 
requirement by Order, 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 FR 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. Also, individuals who 
have been fingerprinted and granted access to SGI by the reviewing 
official under the previous fingerprinting order, ``Order Imposing 
Fingerprinting and Criminal History Check Requirements for Access to 
Safeguards Information,'' do not need to 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. The requirements imposed by 
these Orders and the 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. These Orders included a local 
criminal history records check to determine trustworthiness and 
reliability of individuals seeking unescorted access to

[[Page 25790]]

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 Licensees 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.

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 40, 10 CFR Part 
70 and 10 CFR Part 73, It is hereby ordered, effective immediately, 
that all licensees 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 Licensee 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 Licensees 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 Licensee's justification for seeking 
relief from, or variation of, any specific requirement.
    C. In accordance with the NRC's ``Order Imposing Fingerprinting and 
Criminal History Records Check Requirements for Access to Safeguards 
Information,'' only an 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 
Licensee's reviewing official), have satisfied the EPAct fingerprinting 
requirement and need not be fingerprinted again.
    D. 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 the NRC's ``Order Imposing Fingerprinting and Criminal 
History Check Requirements for Access to Safeguards Information'' do 
not need to be fingerprinted again for purposes of authorizing 
unescorted access. No person may have access to SGI 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 SGI or that the person may not have 
unescorted access to radioactive material or property subject to 
regulation by the NRC.
    E. The Licensee 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 Licensee shall complete implementation of the 
requirements of Attachment 2 to this Order within ninety (90) days from 
the date of issuance of this Order.
    Licensee responses to Condition B. shall be submitted to the 
Director, Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555. In addition, 
Licensee responses shall be marked as ``Security-Related Information--
withhold under 10 CRF 2.390'', or as ``Official Use Only--Department of 
Energy,'' as applicable.
    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 Licensee.

III

    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 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 either submit an 
answer or 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 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 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 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 
Licensee, if the answer or hearing request is by an individual 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 via e-
mail to <a href="/cdn-cgi/l/email-protection#036b6662716a6d64676c60686677436d71602d646c75"><span class="__cf_email__" data-cfemail="a1c9c4c0d3c8cfc6c5cec2cac4d5e1cfd3c28fc6ced7">[email protected]</span></a>, and also to the Office of the General 
Counsel, either by means of facsimile transmission to (301) 415-3725, 
or via e-mail to <a href="/cdn-cgi/l/email-protection#f9b6bebab4989095ba9c978d9c8bb9978b9ad79e968f"><span class="__cf_email__" data-cfemail="4e01090d032f27220d2b203a2b3c0e203c2d60292138">[email protected]</span></a>. 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

[[Page 25791]]

Order and shall address the criteria set forth in 10 CFR 2.309.
    If a hearing is requested by the Licensee or an individual whose 
interest is adversely affected, the 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 Licensee 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 Licensees

License No. SNM-1168, Docket No. 70-1201, AREVA NP, Inc., Lynchburg, 
VA.

License No. SNM-1227, Docket No. 70-1257, AREVA NP, Inc., Richland, 
WA.

License No. SNM-42, Docket No. 70-27, BWXT Technologies, Inc., 
Lynchburg, VA.

License No. SNM-1097, Docket No. 70-1113, Global Nuclear Fuel--
Americas, LLC, Wilmington, NC.

License No. SUB-526, Docket No. 40-3392, Honeywell International, 
Inc., Metropolis, IL.

License No. SNM-2010, Docket No. 70-3103, Louisiana Energy Services, 
L.P. (LES), Lea County, New Mexico.

License No. SNM-124, Docket No. 70-143, Nuclear Fuel Services, 
Erwin, TN.

License No. SNM-1107, Docket No. 70-1151, Westinghouse Electric 
Company LLC, Columbia, SC.

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

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 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 <a href="/cdn-cgi/l/email-protection#30565f425d43705e42531e575f46"><span class="__cf_email__" data-cfemail="7d1b120f100e3d130f1e531a120b">[email protected]</span></a>. 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

[[Page 25792]]

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 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.

[FR Doc. E7-8666 Filed 5-4-07; 8:45 am]
BILLING CODE 7590-01-P


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