Skip to Content

Rule

Relief From Fingerprinting and Criminal History Records Checks

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Nuclear Regulatory Commission (NRC or Commission) is issuing new regulations to relieve certain categories of individuals from the requirement to undergo fingerprinting, identification, and criminal history records checks under section 149 of the Atomic Energy Act of 1954, as amended, (AEA) before being permitted unescorted access to radioactive materials or other property subject to regulation by the Commission that the Commission determines to be of such significance to the public health and safety or the common defense and security as to warrant such checks.

DATES:

This final rule is effective on February 2, 2007.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Jared K. Heck, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-1623, e-mail jkh3@nrc.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Background

II. Need for Rule

III. Analysis of Rule

IV. Basis for Immediate Effectiveness and Dispensing With Notice and Comment

V. Voluntary Consensus Standards

VI. Finding of No Significant Impact: Availability

VII. Paperwork Reduction Act Statement

VIII. Regulatory Analysis

IX. Backfit Analysis

X. Congressional Review Act

I. Background

On August 8, 2005, Congress enacted legislation that authorized the Commission to impose new requirements governing unescorted access to certain radioactive material and other property subject to regulation by the Commission. Specifically, section 652 of the Energy Policy Act of 2005, Pub. L. 109-58, which amended AEA section 149, requires the Commission to ensure that “any individual” who is permitted unescorted access to “radioactive material or other property subject to regulation by the Commission that the Commission determines to be of such significance to the public health and safety or the common defense and Start Printed Page 4946security as to warrant fingerprinting and background checks” be fingerprinted “for identification and a criminal history records check” by the Attorney General. Previously, AEA section 149 only required fingerprinting and criminal history records checks of individuals permitted unescorted access to a “utilization facility.”

On October 17, 2006, the NRC issued a series of Orders to certain radioactive materials licensees that implemented in part the provisions of the amended AEA section 149.[1] Those Orders applied to large panoramic irradiator licensees, manufacturers and distributors of radioactive material, and certain other licensees who ship radioactive material in quantities of concern. As stated in the Orders, those licensees possess material the NRC has determined to be of such significance to the public health and safety and the common defense and security that fingerprinting, identification, and criminal history records checks of individuals permitted unescorted access to that material is warranted.

Under AEA section 149.b., the NRC may by rule relieve individuals from the fingerprinting, identification and criminal history records check requirements imposed by the Orders if it finds that such action is “consistent with its obligations to promote the common defense and security and to protect the health and safety of the public.” Currently, the NRC has no rule that would relieve individuals who are permitted unescorted access to the radioactive materials described in the Orders from the subject requirements of AEA section 149.a. This final rule will provide that relief for certain categories of individuals to whom licensees may wish to permit unescorted access.

This final rule does not authorize unescorted access to any radioactive materials or other property subject to regulation by the Commission. Rather, the rule makes clear that a licensee may permit unescorted access to certain categories of individuals otherwise qualified for access without first obtaining fingerprints or performing an identification and criminal history check. Licensees must decide whether to grant or deny an individual unescorted access independently of this final rule according to other NRC requirements governing unescorted access.[2]

This final rule supersedes in part the Orders previously described. Condition III.B. of those Orders states in part that “[f]ingerprinting and the FBI identification and criminal history records check are not required for individuals that are exempted from fingerprinting requirements under 10 CFR 73.59 [71 FR 33,989 (June 13, 2006)] for access to [Safeguards Information].” That passage of Condition III.B. is ineffective because under AEA section 149.b., such relief can only be provided by rule. Accordingly, the quoted passage in Condition III.B. is hereby rescinded for good cause.[3] The remaining language in Condition III.B. of the Orders remains effective.

II. Need for Rule

The individuals relieved from fingerprinting, identification, and criminal history checks under this final rule include Federal, State, and local officials involved in security planning and incident response, Agreement State employees who evaluate licensee compliance with security-related orders, and other government officials who may need unescorted access to radioactive materials or other property subject to regulation by the Commission as part of their oversight function. The categories of individuals relieved by this final rule are the same as those previously relieved in an earlier rulemaking from fingerprinting and criminal history records check requirements applicable to Safeguards Information access.[4] As was the case in that earlier rulemaking, relief is needed in this context to ensure that a range of inspection, enforcement, planning, oversight, and response functions related to the security of nuclear materials continues uninterrupted during routine and emergency conditions. Accordingly, this final rule is consistent with the Commission's obligations to promote the common defense and security and to protect the health and safety of the public.

III. Analysis of Rule

This final rule provides relief from the fingerprinting and criminal history records check requirements set forth in AEA section 149 for the following categories of individuals:

(1) An employee of the Commission or of the Executive Branch of the U.S. Government who has undergone fingerprinting for a prior U.S. Government criminal history check;

(2) A member of Congress;

(3) An employee of a member of Congress or Congressional committee who has undergone fingerprinting for a prior U.S. Government criminal history check;

(4) The Governor of a State or his or her designated State employee representative;

(5) Federal, State, or local law enforcement personnel;

(6) State Radiation Control Program Directors and State Homeland Security Advisors or their designated State employee representatives;

(7) Agreement State employees conducting security inspections on behalf of the NRC pursuant to an agreement executed under section 274.i. of the AEA;

(8) 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.

The individuals described above are considered trustworthy and reliable by virtue of their occupational status and have either already undergone a background or criminal history check as a condition of their employment, or are subject to direct oversight by government authorities in their day-to-day job functions. Under this final rule, if an individual in one of the categories described above needs unescorted access to radioactive material or other property subject to regulation by the Commission to perform a job function, and the Commission has determined Start Printed Page 4947that the material or property in question is of such significance to the public health and safety or the common defense and security as to warrant fingerprinting and background checks, then the individual may be permitted unescorted access without being fingerprinted or undergoing an identification and criminal history records check, provided the individual is otherwise qualified for unescorted access under other NRC regulations and orders.

IV. Basis for Immediate Effectiveness and Dispensing With Notice and Comment

Generally, the NRC issues final rules using the public notice and comment procedures set forth in the Administrative Procedure Act (APA). But under 5 U.S.C. 553, the NRC may dispense with those procedures where it finds for “good cause” that public procedures are “impracticable, unnecessary, or contrary to the public interest.” In this case, notice-and-comment procedures are not required because the usual public rulemaking procedures are impracticable.

The individuals described in Section II of this document may under some circumstances need unescorted access to radioactive materials to ensure that a range of inspection, enforcement, planning, oversight, and response functions related to the security of nuclear materials continues uninterrupted during routine and emergency conditions. The only way to ensure that government personnel may be permitted unescorted access to radioactive materials or other property subject to regulation by the Commission without first subjecting them to unnecessary fingerprinting and criminal history records checks is to issue a final rule relieving those individuals from such checks. Delaying issuance of the final rule until after notice and comment would interfere with the ability of licensees to provide unescorted access to trustworthy and reliable government officials who may need it to perform their job functions in the interim. Therefore, under 5 U.S.C. 553, good cause exists to dispense with notice and comment procedures.

The Commission plans to publish a more comprehensive proposed rule governing requirements for unescorted access to radioactive materials and other property subject to regulation by the Commission that 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. At that time, the public will be able to comment on whether any additional categories of individuals should be relieved from the fingerprinting and criminal history check requirements of AEA section 149.

Finally, this rule is immediately effective upon publication in accordance with 5 U.S.C. 553(d)(1) because it is a substantive rule which grants an exemption or relieves a restriction. Specifically, the rule relieves certain individuals from the fingerprinting and criminal history records check requirements of AEA section 149.

V. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this final rule, the NRC is granting relief from criminal history checks, including fingerprinting, for access to certain radioactive material and other property subject to regulation by the Commission by persons in certain occupational categories. This action does not involve the establishment of a standard that contains generally applicable requirements.

VI. Finding of No Significant Impact: Availability

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, that this final rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. As permitted by section 149.b. of the AEA, as amended, this rulemaking relieves individuals in certain occupational categories from the criminal history records check and fingerprinting requirements imposed by the Energy Policy Act of 2005. The final rule does not require individuals to take action that would have an environmental impact. A copy of the environmental assessment supporting this finding is available at http://www.nrc.gov/​reading-rm/​pdr.html.

VII. Paperwork Reduction Act Statement

This final rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

VIII. Regulatory Analysis

A regulatory analysis has not been prepared for this regulation because it relieves restrictions and does not impose regulatory burdens on licensees.

IX. Backfit Analysis

No backfit analysis is required because the final rule does not modify or add to systems, structures, components, or the design of a facility, or the design approval or manufacturing license for a facility, or the procedures or organization required to design, construct, or operate a facility. Therefore, the final rule does not impose a backfit as defined in 10 CFR 50.109(a)(1).

X. Congressional Review Act

This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. seq.). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0002.

Public Protection Notification

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

Start List of Subjects

List of Subjects in 10 CFR Part 73

End List of Subjects Start Amendment Part

For the reasons stated in the preamble, and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Energy Policy Act of 2005, and

End Amendment Part Start Part

PART 73—PHYSICAL PROTECTION OF PLANTS AND MATERIALS

End Part Start Amendment Part

1. The authority citation for part 73 is revised to read as follows:

End Amendment Part Start Authority

Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended, sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201, as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Start Printed Page 4948Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005).

End Authority

Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C. 2169).

Start Amendment Part

2. A new § 73.61 is added before the undesignated center heading “Physical Protection of Special Nuclear Material of Moderate and Low Strategic Significance,” to read as follows:

End Amendment Part
Relief from fingerprinting and criminal history records check for designated categories of individuals permitted unescorted access to certain radioactive materials or other property.

Notwithstanding any other provision of the Commission's regulations, fingerprinting and the identification and criminal history records checks required by section 149 of the Atomic Energy Act of 1954, as amended, are not required for the following individuals prior to granting unescorted access to radioactive materials or other property that the Commission determines by regulation or order to be of such significance to the public health and safety or the common defense and security as to warrant fingerprinting and background checks:

(a) An employee of the Commission or of the Executive Branch of the U.S. Government who has undergone fingerprinting for a prior U.S. Government criminal history check;

(b) A Member of Congress;

(c) An employee of a member of Congress or Congressional committee who has undergone fingerprinting for a prior U.S. Government criminal history check;

(d) The Governor of a State or his or her designated State employee representative;

(e) Federal, State, or local law enforcement personnel;

(f) State Radiation Control Program Directors and State Homeland Security Advisors or their designated State employee representatives;

(g) Agreement State employees conducting security inspections on behalf of the NRC pursuant to an agreement executed under section 274.i. of the Atomic Energy Act;

(h) 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.

Start Signature

Dated at Rockville, Maryland, this 22nd day of January, 2007.

For the Nuclear Regulatory Commission.

Luis A. Reyes,

Executive Director for Operations.

End Signature End Supplemental Information

Footnotes

1.  See In the Matter of Holders of Materials Licenses Authorized to Use Sealed Sources in Panoramic and Underwater Irradiators and Possess Greater Than 370 Terabecquerels (10,000 Curies), Order EA-06-248 (October 17, 2006); In the Matter of Certain Licensees Authorized to Possess and Transfer Items Containing Radioactive Material Quantities of Concern, Order EA-06-249 (October 17, 2006); In the Matter of Holders of Materials Licenses Authorized to Manufacture or Distribute Items Containing Radioactive Material of Concern, Order EA-06-250 (October 17, 2006).

Back to Citation

2.  See, e.g., In the Matter of All Panoramic and Underwater Irradiators Authorized to Possess Greater than 370 TerraBecquerels (10,000 Curies) of Byproduct Material in the Form of Sealed Sources; Order Imposing Compensatory Measures (Effective Immediately), 68 FR 35458 (June 13, 2003); In the Matter of all Licensees Authorized to Manufacture or Initially Transfer Items Containing Radioactive Material for Sale or Distribution and Possess Certain Radioactive Material of Concern and All Other Persons Who Obtain Safeguards Information Described Herein; Order Imposing Additional Security Measures (Effective Immediately), 69 FR 5375 (February 4, 2004). These Orders imposed limitations on unescorted access to certain radioactive materials. The particulars of the access limitations imposed by the Orders are Safeguards Information and are not publicly available.

Back to Citation

3.  The NRC Orders issued on October 17, 2006, provide that the Director of the Office of Federal and State Materials and Environmental Management Programs may rescind any condition of the Orders for good cause. Under NRC rules at 10 CFR 1.32(c), the Executive Director for Operations, who has been delegated authority to issue this final rule on behalf of the Commission, may exercise the same authority.

Back to Citation

4.  See Final Rule, “Relief from Fingerprinting and Criminal History Records Check for Designated Categories of Individuals,” 71 FR 33989 (June 13, 2006).

Back to Citation

[FR Doc. E7-1730 Filed 2-1-07; 8:45 am]

BILLING CODE 7590-01-P