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Federal Register / Vol. 71, No.

208 / Friday, October 27, 2006 / Notices 63043

Dated this 17th day of October 2006 at impacts to the public health and safety form of sealed sources. These
Rockville, Maryland. or the common defense and security. requirements will remain in effect until
For the Nuclear Regulatory Commission. Those exempted, from fingerprinting the Commission determines otherwise.
Margaret M. Doane, requirements under 10 CFR 73.59 (71 In addition, pursuant to 10 CFR 2.202,
Deputy Director, Office of International FR 33,989 (June 13, 2006)) for access to find that in light of the common defense
Programs. Safeguards Information 2 (SGI) are also and security matters identified above,
[FR Doc. E6–18021 Filed 10–26–06; 8:45 am] exempt from the fingerprinting which warrant the issuance of this
BILLING CODE 7590–01–P requirements under this Order. In Order, the public health, safety, and
addition, individuals who have a interest require that this Order be
favorably-decided U.S. Government effective immediately.
NUCLEAR REGULATORY criminal history record check within the III
COMMISSION last five (5) years, or individuals who
have an active federal security clearance Accordingly, pursuant to Sections 81,
[EA–06–248] 149, 161b, 161i, 161o, 182, and 186 of
(provided in each case that they make
available the appropriate the AEA of 1954, as amended, and the
In the Matter of Holders of Material
documentation), have satisfied the Commission’s regulations in 10 CFR
Licenses Authorized To Use Sealed
EPAct fingerprinting requirement and 2.202, 10 CFR Part 30, and 10 CFR Part
Sources in Panoramic and Underwater
need not be fingerprinted again. 36, it is hereby ordered, effective
Irradiators and Possess Greater Than
Individuals who have been immediately, that all licensees
370 Terabecquerels (10,000 Curies);
fingerprinted and granted access to SGI identified in attachment 1 to this order
Order Imposing Fingerprinting and
by the reviewing official under Order shall comply with the requirements set
Criminal History Records Check
forth in this order.
Requirements for Unescorted Access EA–06–155 do not need to be
A. All licensees identified in
to Certain Radioactive Material and fingerprinted again.
Attachment 1 to this Order shall comply
Modification of the Compensatory with the following requirements:
II
Measures (Effective Immediately) 1. The Licensee shall, within twenty
Subsequent to the terrorist events of
I (20) days of the date of this Order,
September 11, 2001, the NRC issued a
establish and maintain a fingerprinting
The Licensees identified in security Order requiring certain large
program that meets the requirements of
Attachment 1 1 to this Order hold panoramic and underwater irradiator
Attachment 2 to this Order, for
licenses issued in accordance with the licensees to implement Compensatory
unescorted access to the panoramic or
Atomic Energy Act (AEA) of 1954, as Measures (CMs) for radioactive
underwater irradiator sealed sources.
amended, by the U.S. Nuclear materials. The requirements imposed by 2. The Licensee shall, in writing,
Regulatory Commission (NRC or that Order (Irradiator Order), and within twenty (20) days of the date of
Commission) or Agreement States, measures licensees have developed to this Order, notify, the Commission (1)
authorizing possession of greater than comply with that Order, were receipt and confirmation that
370 Terabecquerels (10,000 curies) of designated by the NRC as SGI and were compliance with the Order will be
byproduct material, in the form of not released to the public. One specific achieved, or (2) if it is unable to comply
sealed sources, either in panoramic CM imposed by the Irradiator Order with any of the requirements described
irradiators that have dry or wet storage required licensees to conduct local in Attachment 2, or (3) if compliance
of the sealed sources, or in underwater criminal history checks to determine the with any of the requirements is
irradiators in which both the source and trustworthiness and reliability of unnecessary in its specific
the product being irradiated are individuals needing unescorted access circumstances. The notification shall
underwater. On August 8, 2005, the to the panoramic or underwater provide the Licensee’s justification for
Energy Policy Act of 2005 (EPAct) was irradiator sealed sources. ‘‘Access,’’ seeking relief from, or variation of, any
enacted. Section 652 of the EPAct means that an individual could exercise specific requirement.
amended Section 149 of the AEA to some physical control over the material B. In accordance with the NRC’s
require fingerprinting and a Federal or device. At that time, the NRC did not ‘‘Order Imposing Fingerprinting and
Bureau of Investigation (FBI) have the authority, except in the case of Criminal History Check Requirements
identification and criminal history power reactor licensees, to require for Access to Safeguards Information’’
records check of any person who is licensees to submit fingerprints for FBI (EA–06–155) issued on August 21, 2006,
permitted unescorted access to criminal history records checks of only the NRC-approved reviewing
radioactive materials subject to individuals being considered for official shall review results from an FBI
regulation by the Commission, and unescorted access to radioactive criminal history records check. The
which the Commission determines to be materials subject to NRC regulations.
of such significance to the public health reviewing official shall determine
Therefore, in accordance with Section whether an individual may have, or
and safety or the common defense and 149 of the AEA, as amended by the
security as to warrant fingerprinting and continue to have, unescorted access to
EPAct, the Commission is imposing the the panoramic or underwater irradiator
background checks. NRC has decided to FBI criminal history records check
implement this requirement, in part, sealed sources that equal or exceed 370
requirements, as set forth in this Order, Terabecquerels (10,000 curies).
prior to the completion of the including Attachment 2 to this Order,
rulemaking to implement the provisions Fingerprinting and the FBI
on all Licensees identified in identification and criminal history
under the EPAct, which is underway, Attachment 1 to this Order, that possess
because a deliberate malevolent act by records check are not required for
greater than 370 Terabecquerels (10,000 individuals exempted from
an individual with unescorted access to
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curies) of byproduct material in the fingerprinting requirements under 10


these radioactive materials has a
potential to result in significant adverse 2 Safeguards Information is a form of sensitive,
CFR 73.59 [71 FR 33,989 (June 13,
unclassified, security-related information that the
2006)] for access to SGI. In addition,
1 Attachment 1 contains sensitive information Commission has the authority to designate and individuals who have a favorably
and will not be released to the public. protect under section 147 of the AEA. decided U.S. Government criminal

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63044 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Notices

history records check within the last an answer or request a hearing must be extension of time in which to request a
five (5) years, or have an active federal made in writing to the Director, Office hearing, the provisions as specified
security clearance, (provided in each of Federal and State Materials and above in Section III shall be final twenty
case that the appropriate documentation Environmental Management Programs, (20) days from the date of this Order,
is made available to the Licensee’s U.S. Nuclear Regulatory Commission, without further Order or proceedings.
reviewing official) have satisfied the Washington, DC 20555, and include a If an extension of time for requesting
EPAct fingerprinting requirement and statement of good cause for the a hearing has been approved, the
need not be fingerprinted again. extension. The answer may consent to provisions as specified above in Section
C. Fingerprints shall be submitted and this Order. Unless the answer consents III shall be final when the extension
reviewed in accordance with the to this Order, the answer shall, in expires, if a hearing request has not
procedures described in Attachment 2 writing and under oath or affirmation, been received. An answer or a request
to this Order. Individuals who have specifically set forth the matters of fact for hearing shall not stay the immediate
been fingerprinted and granted access to and law on which the Licensee or other effectiveness of this order.
SGI by the reviewing official under person adversely affected relies and the Dated this 17th day of October 2006.
Order EA–06–155 do not need to be reasons as to why the Order should not
For the Nuclear Regulatory Commission.
fingerprinted again. have been issued. Any answer or
D. The Licensee may allow any request for a hearing shall be submitted Charles L. Miller,
individual who currently has to the Secretary, Office of the Secretary, Director, Office of Federal and State Materials
unescorted access to the panoramic or U.S. Nuclear Regulatory Commission, and Environmental Management Programs.
underwater irradiator sealed sources, in Attn: Rulemakings and Adjudications Attachment 1—List of Applicable
accordance with the Irradiator Order, to Staff, Washington, DC 20555. Copies Materials Licensees Redacted
continue to have unescorted access also shall be sent to the Director, Office
without being fingerprinted, pending a of Federal and State Materials and Attachment 2—Requirements for
decision by the reviewing official (based Environmental Management Programs, Fingerprinting and Criminal History
on fingerprinting, an FBI criminal U.S. Nuclear Regulatory Commission, Checks of Individuals When Licensee’s
history records check and a trustworthy Washington, DC 20555, to the Assistant Reviewing Official Is Determining
and reliability determination) that the General Counsel for Materials Litigation Unescorted Access to the Panoramic or
individual may continue to have and Enforcement at the same address, Underwater Irradiator Sealed Sources
unescorted access to the panoramic or and to the Licensee if the answer or Subject to EA–06–248
underwater irradiator sealed sources. hearing request is by a person other than General Requirements
The licensee shall complete the Licensee. Because of possible delays
in delivery of mail to United States Licensees shall comply with the
implementation of the requirements of
Government offices, it is requested that following requirements of this
Attachment 2 to this Order by January
answers and requests for hearing be attachment.
15, 2007.
E. The CMs of the Irradiator Order are transmitted to the Secretary of the 1. Each Licensee subject to the
modified as follows: Commission either by means of provisions of this attachment shall
1. The requirement for a local facsimile transmission to (301)–415– fingerprint each individual who is
criminal history check in CM 2.A.ii. is 1101, or by e-mail to seeking or permitted unescorted access
superceded by the FBI criminal history hearingdocket@nrc.gov and also to the to the panoramic or underwater
records check. All other requirements in Office of the General Counsel, either by irradiator sealed sources. The Licensee
CM 2.A.ii are still applicable. means of facsimile transmission to shall review and use the information
Licensee responses to Condition A.2. (301)–415–3725, or by e-mail to received from the Federal Bureau of
shall be submitted to the Director, Office OGCMailCenter@nrc.gov. If a person Investigation (FBI) and ensure that the
of Federal and State Materials and other than the Licensee requests a provisions contained in the subject
Environmental Management Programs, hearing, that person shall set forth with Order and this attachment are satisfied.
U.S. Nuclear Regulatory Commission, particularity the manner in which his/ 2. The Licensee shall notify each
Washington, DC 20555–0001. In her interest is adversely affected by this affected individual that the fingerprints
addition, Licensee responses shall be Order and shall address the criteria set will be used to secure a review of his/
marked as ‘‘Security-Related forth in 10 CFR 2.309. her criminal history record and inform
Information—Withhold Under 10 CFR If a hearing is requested by the the individual of the procedures for
2.390.’’ Licensee or a person whose interest is revising the record or including an
The Director, Office of Federal and adversely affected, the Commission will explanation in the record, as specified
State Materials and Environmental issue an Order designating the time and in the ‘‘Right to Correct and Complete
Management Programs, may, in writing, place of any hearing. If a hearing is held, Information’’ section of this attachment.
relax or rescind any of the above the issue to be considered at such 3. Fingerprints for unescorted access
conditions upon demonstration of good hearing shall be whether this Order need not be taken if an employed
cause by the Licensee. should be sustained. individual (e.g., a Licensee employee,
Pursuant to 10 CFR 2.202(c)(2)(i), the contractor, manufacturer, or supplier) is
IV Licensee may, in addition to demanding relieved from the fingerprinting
In accordance with 10 CFR 2.202, the a hearing, at the time the answer is filed requirement by 10 CFR 73.59 for access
Licensee must, and any other person or sooner, move the presiding officer to to Safeguards Information, has a
adversely affected by this Order may, set aside the immediate effectiveness of favorably-decided U.S. Government
submit an answer to this Order, and the Order on grounds that the Order, criminal history check within the last
may request a hearing on this Order, including the need for immediate five (5) years, or has an active federal
jlentini on PROD1PC65 with NOTICES

within twenty (20) days of the date of effectiveness, is not based on adequate security clearance. Written confirmation
this Order. Where good cause is shown, evidence, but on mere suspicion, from the Agency/employer which
consideration will be given to extending unfounded allegations, or error. granted the federal security clearance or
the time to request a hearing. A request In the absence of any request for reviewed the criminal history check
for extension of time in which to submit hearing, or written approval of an must be provided for either of the latter

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Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Notices 63045

two cases. The Licensee must retain this Division’s Criminal History Check the FBI for the purpose of assuring
documentation for a period of three (3) Section. Copies of these forms may be correct and complete information.
years from the date the individual no obtained by writing the Office of Written confirmation by the individual
longer requires unescorted access to Information Services, U.S. Nuclear of receipt of this notification must be
radioactive materials associated with Regulatory Commission, Washington, maintained by the Licensee for a period
the Licensee’s activities. DC 20555–0001, by calling (301) 415– of one (1) year from the date of the
4. All fingerprints obtained by the 5877, or by e-mail to forms@nrc.gov. notification.
Licensee pursuant to this Order must be Practicable alternative formats are set If, after reviewing the record, an
submitted to the Commission for forth in 10 CFR 73.4. The Licensee shall individual believes that it is incorrect or
transmission to the FBI. establish procedures to ensure that the incomplete in any respect and wishes to
5. The Licensee shall review the quality of the fingerprints taken results change, correct, or update the alleged
information received from the FBI and in minimizing the rejection rate of deficiency, or to explain any matter in
consider it, in conjunction with the fingerprint cards due to illegible or the record, the individual may initiate
trustworthy and reliability requirements incomplete cards. challenge procedures. These procedures
of the Irradiator Order, in making a The NRC will review submitted include either direct application by the
determination whether to grant, or fingerprint cards for completeness. Any individual challenging the record to the
continue to allow, unescorted access to Form FD–258 fingerprint record agency (i.e., law enforcement agency)
radioactive materials. containing omissions or evident errors that contributed the questioned
6. The Licensee shall use any will be returned to the Licensee for information, or direct challenge as to the
information obtained as part of a corrections. The fee for processing accuracy or completeness of any entry
criminal history records check solely for fingerprint checks includes one re- on the criminal history record to the
the purpose of determining an submission if the initial submission is Assistant Director, Federal Bureau of
individual’s suitability for unescorted returned by the FBI because the Investigation Identification Division,
access to the panoramic or underwater fingerprint impressions cannot be Washington, DC 20537–9700 (as set
irradiator sealed sources. classified. The one free re-submission forth in 28 CFR 16.30 through 16.34). In
7. The Licensee shall document the must have the FBI Transaction Control the latter case, the FBI forwards the
basis for its determination whether to Number reflected on the re-submission. challenge to the agency that submitted
grant, or continue to allow, unescorted If additional submissions are necessary, the data and requests that agency to
access to the panoramic or underwater they will be treated as initial submittals verify or correct the challenged entry.
irradiator sealed sources. and will require a second payment of Upon receipt of an official
the processing fee. communication directly from the agency
Prohibitions Fees for processing fingerprint checks that contributed the original
A Licensee shall not base a final are due upon application. Licensees information, the FBI Identification
determination to deny an individual shall submit payment with the Division makes any changes necessary
access to radioactive materials solely on application for processing fingerprints in accordance with the information
the basis of information received from by corporate check, certified check, supplied by that agency. The Licensee
the FBI involving: An arrest more than cashier’s check, money order, or must provide at least ten (10) days for
one (1) year old for which there is no electronic payment, made payable to an individual to initiate an action
information of the disposition of the ‘‘U.S. NRC.’’ [For guidance on making challenging the results of an FBI
case, or an arrest that resulted in electronic payments, contact the criminal history records check after the
dismissal of the charge or an acquittal. Facilities Security Branch, Division of record is made available for his/her
A Licensee shall not use information Facilities and Security, at (301) 415– review. The Licensee may make a final
received from a criminal history check 7404]. Combined payment for multiple determination on unescorted access to
obtained pursuant to this Order in a applications is acceptable. The the panoramic or underwater irradiator
manner that would infringe upon the application fee (currently $27) is the sealed sources based upon the criminal
rights of any individual under the First sum of the user fee charged by the FBI history record only upon receipt of the
Amendment to the Constitution of the for each fingerprint card or other FBI’s ultimate confirmation or
United States, nor shall the Licensee use fingerprint record submitted by the NRC correction of the record. Upon a final
the information in any way which on behalf of a Licensee, and an NRC adverse determination on unescorted
would discriminate among individuals processing fee, which covers access to the panoramic or underwater
on the basis of race, religion, national administrative costs associated with irradiator sealed sources, the Licensee
origin, sex, or age. NRC handling of Licensee fingerprint shall provide the individual its
Procedures for Processing Fingerprint submissions. The Commission will documented basis for denial.
Checks directly notify Licensees who are Unescorted access to the panoramic or
subject to this regulation of any fee underwater irradiator sealed sources
For the purpose of complying with changes. shall not be granted to an individual
this Order, Licensees shall, using an The Commission will forward to the during the review process.
appropriate method listed in 10 CFR submitting Licensee all data received
73.4, submit to the NRC’s Division of from the FBI as a result of the Licensee’s Protection of Information
Facilities and Security, Mail Stop T– application(s) for criminal history 1. Each Licensee who obtains a
6E46, one completed, legible standard checks, including the FBI fingerprint criminal history record on an individual
fingerprint card (Form FD–258, record. pursuant to this Order shall establish
ORIMDNRCOOOZ) or, where and maintain a system of files and
practicable, other fingerprint records for Right To Correct and Complete procedures for protecting the record and
jlentini on PROD1PC65 with NOTICES

each individual seeking unescorted Information the personal information from


access to the panoramic or underwater Prior to any final adverse unauthorized disclosure.
irradiator sealed sources, to the Director determination, the Licensee shall make 2. The Licensee may not disclose the
of the Division of Facilities and available to the individual the contents record or personal information collected
Security, marked for the attention of the of any criminal records obtained from and maintained to persons other than

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63046 Federal Register / Vol. 71, No. 208 / Friday, October 27, 2006 / Notices

the subject individual, his/her Atomic Energy Act (AEA) of 1954, as and measures licensees have developed
representative, or to those who have a amended, by the U.S. Nuclear to comply with that Order, were
need to access the information in Regulatory Commission (NRC or designated by the NRC as Safeguards
performing assigned duties in the Commission) or Agreement States, Information (SGI) and were not released
process of determining unescorted authorizing them to manufacture or to the public. One specific ASM,
access to the panoramic or underwater initially transfer items containing imposed by the M&D Order, required
irradiator sealed sources. No individual radioactive materials for sale or licensees to conduct local background
authorized to have access to the distribution. On August 8, 2005, the checks to determine the trustworthiness
information may re-disseminate the Energy Policy Act of 2005 (EPAct) was and reliability of individuals needing
information to any other individual who enacted. Section 652 of the EPAct unescorted access to radioactive
does not have a need-to-know. amended Section 149 of the AEA to materials. ‘‘Access,’’ to these radioactive
3. The personal information obtained require fingerprinting and a Federal materials means that an individual
on an individual from a criminal history Bureau of Investigation (FBI) could exercise some physical control
record check may be transferred to identification and criminal history over the material or device. At that time,
another Licensee if the Licensee holding records check of any person who is the NRC did not have the authority,
the criminal history record receives the permitted unescorted access to except in the case of power reactor
individual’s written request to re- radioactive materials subject to licensees, to require licensees to submit
disseminate the information contained regulation by the Commission, and fingerprints for an FBI criminal history
in his/her file, and the gaining Licensee which the Commission determines to be records checks of individuals being
verifies information such as the of such significance to the public health considered for unescorted access to
individual’s name, date of birth, social and safety or the common defense and radioactive materials subject to NRC
security number, sex, and other security as to warrant fingerprinting and regulations. Therefore, in accordance
applicable physical characteristics for background checks. NRC has decided to with Section 149 of the AEA, as
identification purposes. implement this requirement, in part, amended by the EPAct, the Commission
4. The Licensee shall make criminal prior to the completion of the is imposing the FBI criminal history
history records, obtained under this rulemaking to implement the provisions records check requirements, as set forth
section, available for examination by an under the EPAct, which is underway, in this Order, including Attachment 2 to
authorized representative of the NRC to because a deliberate malevolent act by this Order, on all Licensees identified in
determine compliance with the an individual with unescorted access to Attachment 1 to this Order, who possess
regulations and laws. these radioactive materials has a risk-significant radioactive materials
5. The licensee shall retain all potential to result in significant adverse equal to or greater than the quantities
fingerprint and criminal history records impacts to the public health and safety listed in Attachment 3 to this Order.
received from the FBI, or a copy if the or the common defense and security. These requirements will remain in effect
individual’s file has been transferred, Those exempted from fingerprinting until the Commission determines
for three (3) years after termination of requirements under 10 CFR 73.59 (71 otherwise.
employment or denial to unescorted FR 33,989 (June 13, 2006)) for access to This Order also modifies the M&D
access to the panoramic or underwater Safeguards Information 2 (SGI) are also Order (EA–03–225 or EA–05–126M), to
irradiator sealed sources. After the exempt from the fingerprinting reflect recent Commission regulatory
required three (3) year period, these actions. The ASMs for M&D Licensees
requirements under this Order. In
documents shall be destroyed by a are modified to be consistent with (1)
addition, individuals who have a
method that will prevent reconstruction the ‘‘Order Imposing Additional
favorably-decided U.S. Government
of the information in whole or in part. Security Measures on the
criminal history record check within the
Transportation of Radioactive Materials
[FR Doc. E6–18052 Filed 10–26–06; 8:45 am] last five (5) years, or individuals who
Quantities of Concern’’ (EA–05–006), (2)
have an active Federal security
BILLING CODE 7590–01–P the final rule on the Export and Import
clearance (provided in each case that
of Radioactive Material: Security
they make available the appropriate
Policies (70 FR 37985 and 46066), dated
NUCLEAR REGULATORY documentation), have satisfied the
July 1, 2005, (3) the Order Imposing
COMMISSION EPAct fingerprinting requirement and
Increased Controls (EA–05–090), and (4)
need not be fingerprinted again.
[EA–06–250] the International Atomic Energy Agency
Individuals who have been
(IAEA) Code of Conduct on the Safety
fingerprinted and granted access to SGI
In the Matter of Holders of Material and Security of Radioactive Sources.
by the reviewing official under Order In addition, pursuant to 10 CFR 2.202,
Licenses Authorized To Manufacture
EA–06–155 do not need to be I find that in light of the common
or Distribute Items Containing
fingerprinted again. defense and security matters identified
Radioactive Material of Concern; Order
Imposing Fingerprinting and Criminal II above, which warrant the issuance of
History Records Check Requirements this Order, the public health, safety, and
Subsequent to the terrorist events of
for Unescorted Access to Certain interest require that this Order be
September 11, 2001, the NRC issued a
Radioactive Material and Modification effective immediately.
security Order requiring certain
of the Additional Security Measures Manufacturing and Distribution (M&D) III
(Effective Immediately) Licensees to implement Additional Accordingly, pursuant to Sections 81,
I Security Measures (ASMs) for certain 149, 161b, 161i, 161o, 182, and 186 of
radioactive materials. The requirements the AEA of 1954, as amended, and the
The Licensees identified in
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imposed by that Order (M&D Order), Commission’s regulations in 10 CFR


Attachment 1 1 to this Order hold
licenses issued in accordance with the 2 Safeguards Information is a form of sensitive,
2.202, 10 CFR Part 30, and 10 CFR Part
unclassified, security-related information that the
32, It is hereby ordered, effective
1 Attachment 1 contains sensitive information Commission has the authority to designate and immediately, that all licensees
and will not be released to the public. protect under section 147 of the AEA. identified in Attachment 1 to this order

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