[Federal Register Volume 78, Number 161 (Tuesday, August 20, 2013)]
[Notices]
[Pages 51213-51219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20261]


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NUCLEAR REGULATORY COMMISSION

[NRC-2013-0193: EA-13-147]


In the Matter of Certain Licensees Requesting Unescorted Access 
to Radioactive Material; Order Imposing Trustworthiness and Reliability 
Requirements for Unescorted Access to Certain Radioactive Material 
(Effective Immediately)

I

    The licensee identified in Attachment 1 \1\ to this Order holds a 
license issued by the U.S. Nuclear Regulatory Commission or an 
Agreement State, in accordance with the Atomic Energy Act (AEA) of 
1954, as amended. The license authorizes it to perform services on 
devices containing certain radioactive material for customers licensed 
by the NRC or an Agreement State to possess and use certain quantities 
of the radioactive materials listed in Attachment 2 to this Order. The 
Commission's regulations in Sec.  20.1801 of Title 10 of the Code of 
Federal Regulations (10 CFR) or equivalent Agreement State regulations 
require licensees to secure, from unauthorized removal or access, 
licensed materials that are stored in controlled or unrestricted areas. 
The Commission's regulations in Sec.  20.1802 or equivalent Agreement 
State regulations require licensees to control and maintain constant 
surveillance of licensed material that is in a controlled or 
unrestricted area and that is not in storage.
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    \1\ Attachment 1 contains sensitive information and will not be 
released to the public.
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II

    Subsequent to the terrorist events of September 11, 2001, the NRC 
issued immediately effective Security Orders to NRC and Agreement State 
licensees under the Commission's authority to protect the common 
defense and security of the nation. The Orders required certain 
manufacturing and distribution (M&D) licensees to

[[Page 51214]]

implement Additional Security Measures (ASMs) for the radioactive 
materials listed in Attachment 2 to this Order (the radionuclides of 
concern), to supplement the existing regulatory requirements. The ASMs 
included requirements for determining the trustworthiness and 
reliability of individuals that require unescorted access to the 
radionuclides of concern. Section 652 of the Energy Policy Act of 2005, 
which became law on August 8, 2005, amended Section 149 of the AEA to 
require fingerprinting and a Federal Bureau of Investigation (FBI) 
identification and criminal history records check for ``any individual 
who is 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 
fingerprinting and background checks.'' Section 149 of the AEA also 
requires that ``all fingerprints obtained by an individual or entity . 
. . shall be submitted to the Attorney General of the United States 
through the Commission for identification and a criminal history 
records check.'' Due to the 2005 revision of the AEA, the 
trustworthiness and reliability requirements of the ASMs were updated 
and the M&D licensees were issued additional Orders imposing the new 
fingerprinting requirements.
    In late 2005, the NRC and the Agreement States began issuing 
Increased Controls (IC) Orders or other legally binding requirements to 
licensees who are authorized to possess the radionuclides of concern at 
IC licensee facilities. Paragraph IC 1.c, in Attachment B of the 
December 1, 2005 IC Order, ``Increased Controls for Licensees That 
Possess Sources Containing Radioactive Material Quantities of 
Concern,'' stated that ``service providers shall be escorted unless 
determined to be trustworthy and reliable by an NRC-required background 
investigation as an employee of a manufacturing and distribution 
licensee'' (70 FR 72130). Starting in December 2007, the NRC and the 
Agreement States began issuing additional Orders or other legally 
binding requirements to the IC licensees, imposing the new 
fingerprinting requirements. In the December 13, 2007, Fingerprinting 
Order, paragraph IC 1.c of the prior Order was superseded by the 
requirement that ``Service provider licensee employees shall be 
escorted unless determined to be trustworthy and reliable by an NRC-
required background investigation'' (72 FR 70901). However, the NRC did 
not require background investigations for non-M&D service provider 
licensees. Consequently, only service representatives of certain M&D 
licensees may be granted unescorted access to the radionuclides of 
concern at an IC licensee facility, even though non-M&D service 
provider licensees provide similar services and have the same degree of 
knowledge of the devices they service as M&D licensees. To maintain 
appropriate access control to the radionuclides of concern, and to 
allow M&D licensees and non-M&D service provider licensees to have the 
same level of access at customers' facilities, NRC is imposing 
trustworthiness and reliability requirements for unescorted access to 
radionuclides of concern, as set forth in this Order. These 
requirements apply to non-M&D service provider licensees that request 
and have a need for unescorted access by their representatives to the 
radionuclides of concern at IC licensee facilities. These 
trustworthiness and reliability requirements are equivalent to the 
requirements for M&D licensees who perform services requiring 
unescorted access to the radionuclides of concern.
    In order to provide assurance that non-M&D service provider 
licensees are implementing prudent measures to achieve a consistent 
level of protection for service providers requiring unescorted access 
to the radionuclides of concern at IC licensee facilities, the licensee 
identified in Attachment 1 to this Order shall implement the 
requirements of this Order. In addition, pursuant to 10 CFR 2.202, 
because of potentially significant adverse impacts associated with a 
deliberate malevolent act by an individual with unescorted access to 
the radionuclides of concern, I find that the public health, safety, 
and interest require this Order to be effective immediately.

III

    Accordingly, pursuant to Sections 81, 149, 161b, 161i, 161o, 182, 
and 186 of the Atomic Energy Act of 1954, as amended, and the 
Commission's regulations in 10 CFR 2.202, 10 CFR Parts 20, 30 and 33, 
it is hereby ordered, effective immediately, that the licensee 
identified in attachment 1 to this order comply with the requirements 
set forth in this order.
    A.1. The licensee shall establish and maintain a fingerprinting 
program that meets the requirements of Attachment 3 to this Order for 
individuals that require unescorted access to the radionuclides of 
concern. The licensee shall complete implementation of the requirements 
of Attachment 3 to this Order within one hundred eighty (180) days of 
the date of this Order, or before providing written verification to 
another licensee subject to the IC requirements, or attesting to or 
certifying the trustworthiness and reliability of a service provider 
for unescorted access to the radionuclides of concern at a customer's 
facility.
    A.2. Within ninety (90) days of the date of this Order, the 
licensee shall designate a ``Reviewing Official'' for determining 
unescorted access to the radioactive materials as listed in Attachment 
2 to this Order by other individuals. The designated Reviewing Official 
shall be determined to be trustworthy and reliable by the licensee in 
accordance with the requirements described in Attachment 3 to this 
Order and must be authorized unescorted access to the radioactive 
materials listed in Attachment 2 to this Order as part of his or her 
job duties.
    A.3. Fingerprints for unescorted access need not be taken if a 
designated Reviewing Official is relieved from the fingerprinting 
requirement by 10 CFR 73.61, or has been favorably adjudicated by a 
U.S. Government program involving fingerprinting and a FBI 
identification and criminal history records check \2\ within the last 
five (5) years, or for any person who has an active federal security 
clearance (provided in the latter two cases that they make available 
the appropriate documentation \3\). The licensee may provide, for NRC 
review, written confirmation from the Agency/employer which granted the 
federal security clearance or reviewed the FBI identification and 
criminal history records results based upon a fingerprint 
identification check. The NRC will

[[Page 51215]]

determine whether, based on the written confirmation, the designated 
Reviewing Official may have unescorted access to the radioactive 
materials listed in Attachment 2 to this Order, and therefore, be 
permitted to serve as the licensee's Reviewing Official \4\.
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    \2\ Examples of such programs include (1) National Agency Check, 
(2) Transportation Worker Identification Credentials in accordance 
with 49 CFR Part 1572, (3) Bureau of Alcohol Tobacco Firearms and 
Explosives background checks and clearances in accordance with 27 
CFR Part 555, (4) Health and Human Services security risk 
assessments for possession and use of select agents and toxins in 
accordance with 42 CFR Part 73, and (5) Hazardous Material security 
threat assessment for hazardous material endorsement to commercial 
drivers license in accordance with 49 CFR Part 1572, Customs and 
Border Protection's Free and Secure Trade (FAST) Program. The FAST 
program is a cooperative effort between the Bureau of Customs and 
Border Protection and the governments of Canada and Mexico to 
coordinate processes for the clearance of commercial shipments at 
the U.S.-Canada and U.S.-Mexico borders. Participants in the FAST 
program, which requires successful completion of a background 
records check, may receive expedited entrance privileges at the 
northern and southern borders.
    \3\ This documentation must allow the NRC or NRC-approved 
Reviewing Official to verify that the individual has fulfilled the 
unescorted access requirements of Section 149 of the AEA by 
submitting to fingerprinting and a FBI identification and criminal 
history records check.
    \4\ The NRC's determination of this individual's unescorted 
access to the radionuclides of concern in accordance with the 
process described in Enclosure 4 to the transmittal letter of this 
Order is an administrative determination that is outside the scope 
of this Order.
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    A.4. A designated Reviewing Official may not review the results 
from the FBI identification and criminal history records checks or make 
unescorted access determinations until the NRC has approved the 
individual as the licensee's Reviewing Official.
    A.5. The NRC will determine whether this individual (or any 
subsequent Reviewing Official) may have unescorted access to the 
radionuclides of concern, and therefore, will be permitted to serve as 
the licensee's Reviewing Official. The NRC-approved Reviewing Official 
shall be the recipient of the results of the FBI identification and 
criminal history records check of the other licensee employees 
requiring unescorted access to the radioactive materials listed in 
Attachment 2 to this Order, and shall control such information as 
specified in the ``Protection of Information'' section of Attachment 3 
to this Order.
    A.6. The NRC-approved Reviewing Official shall determine whether an 
individual may have unescorted access to radioactive materials that 
equal or exceed the quantities in Attachment 2 to this Order, in 
accordance with the requirements described in Attachment 3 to this 
Order.
    B. Prior to requesting fingerprints from a licensee employee, a 
copy of this Order shall be provided to that person.
    C.1. The licensee shall, in writing, within twenty-five (25) days 
of the date of this Order, notify the Commission, (1) if it is unable 
to comply with any of the requirements described in this Order, 
including Attachment 3 to this Order, (2) if compliance with any of the 
requirements is unnecessary in its specific circumstances, or (3) if 
implementation of any of the requirements would cause the licensee to 
be in violation of the provisions of any Commission or Agreement State 
regulation or its license. The notification shall provide the 
licensee's justification for seeking relief from or variation of any 
specific requirement.
    C.2. The licensee shall complete implementation of the requirements 
of Attachment 3 to this Order within one hundred eighty (180) days of 
the date of this Order.
    C.3. The licensee shall report to the Commission when they have 
achieved full compliance with the requirements described in Attachment 
3 to this Order. The report shall be made within twenty-five (25) days 
after full compliance has been achieved.
    C.4. If during the implementation period of this Order, the 
licensee is unable, due to circumstances beyond its control, to meet 
the requirements of this Order by January 11, 2014, the licensee shall 
request, in writing, that the Commission grant an extension of time to 
implement the requirements. The request shall provide the licensee's 
justification for seeking additional time to comply with the 
requirements of this Order.
    C.5. Licensees shall notify the NRC's Headquarters Operations 
Office at 301-816-5100 within 24 hours if the results from a FBI 
identification and criminal history records check indicate that an 
individual is identified on the FBI's Terrorist Screening Data Base.
    Licensee responses to C.1, C.2., C.3., and C.4. above shall be 
submitted in writing to the Director, Office of Federal and State 
Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001. Licensee responses 
shall be marked as ``Security-Related Information--Withhold Under 10 
CFR 2.390.''
    The Director, Office of Federal and State Materials and 
Environmental Management Programs, may, in writing, relax or rescind 
any of the above conditions upon demonstration of good cause by the 
licensee.

IV

    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 within twenty-five (25) days of the date of this Order. In 
addition, the licensee and any other person adversely affected by this 
Order may request a hearing of this Order within twenty-five (25) days 
of the date of the Order. Where good cause is shown, consideration will 
be given to extending the time to request a hearing. A request for 
extension of time must be made, in writing, to the Director, Division 
of Materials Safety and State Agreements, Office of Federal and State 
Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, and include a 
statement of good cause for the extension.
    The answer may consent to this Order. If the answer includes a 
request for a hearing, it shall, under oath or affirmation, 
specifically set forth the matters of fact and law on which the 
licensee relies and the reasons as to why the Order should not have 
been issued. If a person other than the licensee requests a hearing, 
that person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d).
    A request for a hearing must be filed in accordance with the NRC's 
E-Filing rule, which became effective on October 15, 2007. The E-Filing 
Final Rule was issued on August 28, 2007, (72 FR 49139). The E-Filing 
process requires participants to submit and serve documents over the 
internet or, in some cases, to mail copies on electronic optical 
storage media. Participants may not submit paper copies of their 
filings unless they seek a waiver in accordance with the procedures 
described below.
    To comply with the procedural requirements associated with E-
Filing, at least five (5) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by email to 
[email protected], or by calling 301-415-1677, to request (1) a 
digital identification (ID) certificate, which allows the participant 
(or its counsel or representative) to digitally sign documents and 
access the E-Submittal server for any NRC proceeding in which it is 
participating; and/or (2) creation of an electronic docket for the 
proceeding (even in instances when the requestor (or its counsel or 
representative) already holds an NRC-issued digital ID certificate). 
Each requestor will need to download the Workplace Forms 
ViewerTM to access the Electronic Information Exchange (EIE) 
System, a component of the E-Filing system. The Workplace Forms 
ViewerTM is free and is available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying 
for a digital ID certificate also is available on NRC's public Web site 
at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a requestor has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
request for a hearing through EIE. Submissions should be in Portable 
Document Format (PDF) in accordance with the NRC guidance available on 
the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the filer 
submits its document through EIE. To be timely, electronic filings must 
be

[[Page 51216]]

submitted to the EIE system no later than 11:59 p.m. Eastern Time on 
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an email notice confirming 
receipt of the document. The EIE system also distributes an email 
notice that provides access to the document to the NRC's Office of the 
General Counsel and any others who have advised the Office of the 
Secretary that they wish to participate in the proceeding, so that the 
filer need not serve the document on those participants separately. 
Therefore, any others who wish to participate in the proceeding (or 
their counsel or representative) must apply for and receive a digital 
ID certificate before a hearing request is filed so that they may 
obtain access to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located on the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical 
help line, which is available between 8:00 a.m. and 8:00 p.m., Eastern 
Time, Monday through Friday. The help line number is 1-866-672-7640.
    Participants who believe that they have good cause for not 
submitting documents electronically must file a motion, in accordance 
with 10 CFR 2.302(g), with their initial paper filing requesting 
authorization to continue to submit documents in paper format. Such 
filings must be submitted by (1) first class mail addressed to the 
Office of the Secretary of the Commission, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemaking and 
Adjudications Staff; or (2) courier, express mail, or expedited 
delivery service to the Office of the Secretary, Sixteenth Floor, One 
White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, 
Attention: Rulemaking and Adjudications Staff. Participants filing a 
document in this manner are responsible for serving the document on all 
other participants. Filing is considered complete by first-class mail 
as of the time of deposit in the mail, or by courier, express mail, or 
expedited delivery service upon depositing the document with the 
provider of the service.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the 
Commission, an Atomic Safety and Licensing Board, or a Presiding 
Officer. Participants are requested not to include personal privacy 
information, such as social security numbers, home addresses, or home 
phone numbers in their filings. With respect to copyrighted works, 
except for limited excerpts that serve the purpose of the adjudicatory 
filings and would constitute a Fair Use application, participants are 
requested not to include copyrighted materials in their works.
    If a hearing is requested by the licensee or a person whose 
interest is adversely affected, the Commission will issue an Order 
designating the time and place of any 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 
requesting a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the ground 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 
specified in Section III above shall be final twenty-five (25) 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 specified in Section III shall be final when the extension 
expires if a hearing request has not been received.

    An answer or a request for hearing shall not stay the immediate 
effectiveness of this order.

    Dated this 13th day of August, 2013.

    For the Nuclear Regulatory Commission.
Brian J. McDermott,
Director, Division of Materials Safety and State Agreements, Office of 
Federal and State Materials and Environmental Management Programs.

Attachment 1: List of Applicable Materials Licensees Redacted

Attachment 2: Table 1: Radionuclides of Concern

                    Table 1: Radionuclides of Concern
------------------------------------------------------------------------
                                                            Quantity of
           Radionuclide              Quantity of concern    Concern \2\
                                         \1\  (TBq)            (Ci)
------------------------------------------------------------------------
Am-241............................  0.6.................              16
Am-241............................
Am-241/Be.........................  0.6.................              16
Am-241/Be.........................
Cf-252............................  0.2.................             5.4
Cf-252............................
Cm-244............................  0.5.................              14
Cm-244............................
Co-60.............................  0.3.................             8.1
Co-60.............................
Cs-137............................  1...................              27
Cs-137............................
Gd-153............................  10..................             270
Gd-153............................
Ir-192............................  0.8.................              22
Ir-192............................
Pm-147............................  400.................          11,000
Pm-147............................
Pu-238............................  0.6.................              16
Pu-238............................
Pu-239/Be.........................  0.6.................              16
Pu-239/Be.........................
Ra-226............................  0.4.................              11

[[Page 51217]]

 
Se-75.............................  2...................              54
Se-75.............................
Sr-90 (Y-90)......................  10..................             270
Sr-90 (Y-90)......................
Tm-170............................  200.................           5,400
Tm-170............................
Yb-169............................  3...................              81
Yb-169............................
Combinations of radioactive         See Footnote Below    ..............
 materials listed above \3\.         \4\.
------------------------------------------------------------------------
\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
  Terabecquerels (TBq). The curie (Ci) values are rounded to two
  significant figures for informational purposes only.
\3\ Radioactive materials are to be considered aggregated or collocated
  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. [(aggregated source activity for
  radionuclide A) / (quantity of concern for radionuclide A)] +
  [(aggregated source activity for radionuclide B) / (quantity of
  concern for radionuclide B)] + etc.....1.

Guidance for Aggregation of Sources

    The NRC supports the use of the International Atomic Energy 
Association's (IAEA) source categorization methodology as defined in 
IAEA Safety Standards Series No. RS-G-1.9, ``Categorization of 
Radioactive Sources,'' (2005) (see http://www-pub.iaea.org/MTCD/publications/PDF/Pub1227_web.pdf) and as endorsed by the agency's Code 
of Conduct for the Safety and Security of Radioactive Sources, January 
2004, (see http://www-pub.iaea.org/MTCD/publications/PDF/Code-2004_web.pdf). The Code defines a three-tiered source categorization scheme. 
Category 1 corresponds to the largest source strength (equal to or 
greater than 100 times the quantity of concern values listed in Table 
1.) and Category 3, the smallest (equal or exceeding one-tenth the 
quantity of concern values listed in Table 1.). Additional security 
measures apply to sources that are equal to or greater than the 
quantity of concern values listed in Table 1, plus aggregations of 
smaller sources that are equal to or greater than the quantities in 
Table 1. Aggregation only applies to sources that are collocated.
    Licensees who possess individual sources in total quantities that 
equal or exceed the Table 1 quantities are required to implement 
additional security measures. Where there are many small (less than the 
quantity of concern values) collocated sources whose total aggregate 
activity equals or exceeds the Table 1 values, licensees are to 
implement additional security measures.
    Some source handling or storage activities may cover several 
buildings, or several locations within specific buildings. The question 
then becomes, ``When are sources considered collocated for purposes of 
aggregation?'' For purposes of the additional controls, sources are 
considered collocated if breaching a single barrier (e.g., a locked 
door at the entrance to a storage room) would allow access to the 
sources. Sources behind an outer barrier should be aggregated 
separately from those behind an inner barrier (e.g., a locked source 
safe inside the locked storage room). However, if both barriers are 
simultaneously open, then all sources within these two barriers are 
considered to be collocated. This logic should be continued for other 
barriers within or behind the inner barrier.
    The following example illustrates the point: A lockable room has 
sources stored in it. Inside the lockable room, there are two shielded 
safes with additional sources in them. Inventories are as follows:
    The room has the following sources outside the safes: Cf-252, 0.12 
TBq (3.2 Ci); Co-60, 0.18 TBq (4.9 Ci), and Pu-238, 0.3 TBq (8.1 Ci). 
Application of the unity rule yields: (0.12 / 0.2) + (0.18 / 0.3) + 
(0.3 / 0.6) = 0.6 + 0.6 + 0.5 = 1.7. Therefore, the sources would 
require additional security measures.
    Shielded safe 1 has a 1.9 TBq (51 Ci) Cs-137 source and a 
0.8 TBq (22 Ci) Am-241 source. In this case, the sources would require 
additional security measures, regardless of location, because they each 
exceed the quantities in Table 1.
    Shielded safe 2 has two Ir-192 sources, each having an 
activity of 0.3 TBq (8.1 Ci). In this case, the sources would not 
require additional security measures while locked in the safe. The 
combined activity does not exceed the threshold quantity 0.8 TBq (22 
Ci).
    Because certain barriers may cease to exist during source handling 
operations (e.g., a storage location may be unlocked during periods of 
active source usage), licensees should, to the extent practicable, 
consider two modes of source usage -- ``operations'' (active source 
usage) and ``shutdown'' (source storage mode). Whichever mode results 
in the greatest inventory (considering barrier status) would require 
additional security measures for each location.
    Use the following method to determine which sources of radioactive 
material require implementation of the Additional Security Measures:
     Include any single source equal to or greater than the 
quantity of concern in Table.
     Include multiple collocated sources of the same 
radionuclide when the combined quantity equals or exceeds the quantity 
of concern.
     For combinations of radionuclides, include multiple 
collocated sources of different radionuclides when the aggregate 
quantities satisfy the following unity rule: [(amount of radionuclide 
A) / (quantity of concern of radionuclide A)] + [(amount of 
radionuclide B) / (quantity of concern of radionuclide B)] + etc. . . . 
.>= 1.

[[Page 51218]]

Attachment 3: Requirements for Service Provider Licensees Providing 
Written Verification Attesting to or Certifying the Trustworthiness and 
Reliability of Service Providers for Unescorted Access to Certain 
Radioactive Material at Customer Facilities, Including Requirements for 
Fingerprinting and Criminal History Checks

A. General Requirements

    Licensees subject to the provisions of this Order shall comply with 
the requirements of this attachment. The term ``certain radioactive 
material'' means the radionuclides in quantities equal to or greater 
than the quantities listed in Attachment 2 to this Order.
    1. The Licensee shall provide the customer's facility written 
verification attesting to or certifying the trustworthiness and 
reliability of an individual as a service provider only for employees 
the Licensee has approved in writing (see requirement A.3 below). The 
Licensee shall request unescorted access to certain radioactive 
material at customer licensee facilities only for approved service 
providers that require the unescorted access in order to perform a job 
duty.
    2. The trustworthiness, reliability, and true identity of a service 
provider shall be determined based on a background investigation. The 
background investigation shall address at least the past three (3) 
years, and as a minimum, include fingerprinting and a Federal Bureau of 
Investigation (FBI) criminal history records check as required in 
Section B, verification of employment history, education, and personal 
references. If a service provider's employment has been less than the 
required three (3) year period, educational references may be used in 
lieu of employment history.
    3. The Licensee shall document the basis for concluding that there 
is reasonable assurance that a service provider requiring unescorted 
access to certain radioactive material at a customer facility is 
trustworthy and reliable, and does not constitute an unreasonable risk 
for unauthorized use of the radioactive material. The Licensee shall 
maintain a list of service providers approved for unescorted access to 
certain radioactive material.
    4. The Licensee shall retain documentation regarding the 
trustworthiness and reliability of approved service providers for three 
years after the individual no longer requires unescorted access to 
certain radioactive material associated with the Licensee's activities.
    5. Each time the Licensee revises the list of approved service 
providers (see requirement 3 above), the Licensee shall retain the 
previous list for three (3) years after the revision.
    6. The Licensee shall provide to a customer written certification 
for each service provider for whom unescorted access to certain 
radioactive material at the customer's facility is required and 
requested. The written certification shall be dated and signed by the 
Reviewing Official. A new written certification is not required if an 
individual service provider returns to the customer facility within 
three years, provided the customer has retained the prior 
certification.

B. Specific Requirements Pertaining to Fingerprinting and Criminal 
History Records Checks

    1. The Licensee shall fingerprint each service provider to be 
approved for unescorted access to certain radioactive materials 
following the procedures outlined in Enclosure 3 of the transmittal 
letter. The Licensee shall review and use the information received from 
the FBI identification and criminal history records check 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, or any person who has been favorably-
decided by a U.S. Government program involving fingerprinting and an 
FBI identification and criminal history records check (e.g., National 
Agency Check, Transportation Worker Identification Credentials in 
accordance with 49 CFR Part 1572, Bureau of Alcohol Tobacco Firearms 
and Explosives background checks and clearances in accordance with 27 
CFR Part 555, Health and Human Services security risk assessments for 
possession and use of select agents and toxins in accordance with 42 
CFR Part 73, Hazardous Material security threat assessment for 
hazardous material endorsement to commercial drivers license in 
accordance with 49 CFR Part 1572, Customs and Border Protection's Free 
and Secure Trade Program \5\) within the last five (5) years, or any 
person who has an active federal security clearance (provided in the 
latter two cases that they make available the appropriate documentation 
\6\). 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 (3) 
years from the date the individual no longer requires unescorted access 
to certain radioactive material associated with the Licensee's 
activities.
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    \5\ The FAST program is a cooperative effort between the Bureau 
of Customs and Border Protection and the governments of Canada and 
Mexico to coordinate processes for the clearance of commercial 
shipments at the U.S.--Canada and U.S.--Mexico borders. Participants 
in the FAST program, which requires successful completion of a 
background records check, may receive expedited entrance privileges 
at the northern and southern borders.
    \6\ This documentation must allow the Reviewing Official to 
verify that the individual has fulfilled the unescorted access 
requirements of Section 149 of the AEA by submitting to 
fingerprinting and an FBI identification and criminal history 
records check.
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    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 shall review the information received from the FBI 
and consider it, in conjunction with the trustworthiness and 
reliability requirements of Section A of this attachment, in making a 
determination whether to approve and certify the individual for 
unescorted access to certain radioactive materials.
    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 certain radioactive 
materials.
    7. The Licensee shall document the basis for its determination 
whether to approve the individual for unescorted access to certain 
radioactive materials.

C. Prohibitions

    A Licensee shall not base a final determination to not provide 
certification for unescorted access to certain radioactive material for 
an individual solely on the basis of information received from the FBI 
involving: an arrest more than one (1) year old for which there is no 
information of the 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 check obtained pursuant to this Order in a

[[Page 51219]]

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.

D. 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 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 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 Part 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 provide at least ten (10) days for an individual to 
initiate an action challenging the results of an FBI identification and 
criminal history records check after the record is made available for 
his/her review. The Licensee may make a final unescorted access to 
certain radioactive material determination based upon the criminal 
history record only upon receipt of the FBI's ultimate confirmation or 
correction of the record. Upon a final adverse determination on 
unescorted access to certain radioactive material, the Licensee shall 
provide the individual its documented basis for denial. Unescorted 
access to certain radioactive material shall not be granted to an 
individual during the review process.

E. Protection of Information

    1. Each Licensee who obtains a criminal history record on 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 or 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 
whether to verify the individual for unescorted access to certain 
radioactive material. No individual authorized to have access to the 
information may re-disseminate 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 record check may be transferred to another Licensee if 
the Licensee holding the criminal history record check receives the 
individual's written request to re-disseminate 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 fingerprints and criminal history 
records from the FBI, or a copy if the individual's file has been 
transferred:
    a. for three (3) years after the individual no longer requires 
unescorted access, or
    b. for three (3) years after unescorted access to certain 
radioactive material was denied.
    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. 2013-20261 Filed 8-19-13; 8:45 am]
BILLING CODE 7590-01-P