ML082350393
| ML082350393 | |
| Person / Time | |
|---|---|
| Issue date: | 08/22/2008 |
| From: | Phil Brochman NRC/NSIR/DSP/DDMS/MWISB |
| To: | Wastler S NRC/NSIR/DSP/DDMS/MWISB |
| Brochman P, NSIR/DSP, 301-415-6557 | |
| Shared Package | |
| ML082200007 | List: |
| References | |
| RIS-08-010, Suppl 1 | |
| Download: ML082350393 (10) | |
See also: RIS 2008-10
Text
Enclosure 2
UNITED STATES
NUCLEAR REGULATORY COMMISSION
OFFICE OF NEW REACTORS
OFFICE OF NUCLEAR REACTOR REGULATION
OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS
OFFICE OF FEDERAL AND STATE MATERIALS AND
ENVIRONMENTAL MANAGEMENT PROGRAMS
WASHINGTON, DC 20555-0001
DATE, 2008
NRC REGULATORY ISSUE SUMMARY 2008-10, SUPPLEMENT 1
NOTICE REGARDING FORTHCOMING
FEDERAL FIREARMS BACKGROUND CHECKS
ADDRESSEES
All U.S. Nuclear Regulatory Commission (Commission or NRC) licensees, certificate holders,
and applicants for a license or certificate of compliance who use armed security personnel as
part of their physical protection system and security organization. All Radiation Control Program
Directors and State Liaison Officers.
INTENT
The NRC is issuing Supplement 1 to Regulatory Issue Summary (RIS) 2008-10, (originally
issued on May 13, 2008), to correct information provided to licensees, certificate holders, and
applicants who will be affected by forthcoming Federal firearms background checks. The NRC
recommends that affected licensees, certificate holders, and applicants discuss the contents of
this supplemental RIS with their armed security personnel. This supplement to RIS-2008-10
requires no specific action or written response by addressees.
For byproduct material licensees, there are no current or planned NRC requirements
necessitating the use of armed security personnel. However, some byproduct material
licensees may use armed security personnel to provide security for their overall facility rather
than directly providing security for the radioactive byproduct material itself. Therefore, as with
RIS-2008-10, this supplement is also issued to Radiation Control Program Directors and State
Liaison Officers for their information only.
BACKGROUND INFORMATION
In RIS-2008-10, the NRC had provided information for advance planning by licensees,
certificate holders, applicants, and their respective armed security personnel before the NRC
issues new requirements on firearms background checks. The RIS had also provided
information for impacted security personal, in advance of their being subject to a future firearms
background check, to consider applying under the Federal Bureau of Investigations (FBIs)
Voluntary Appeal File (VAF) program to verify that the FBI does not consider them disqualified
RIS 2008-10, S1
Page 2 of 6
from possessing firearms or ammunition. The RIS had indicated that firearms background
checks would affect the armed security personnel at NRC licensees and certificate holders who
apply to the NRC for the new enhanced weapons or preemption authority provided by section
161A of the Atomic Energy Act of 1954, as amended (AEA). However, subsequent to the
issuance of the RIS, the U.S. Department of Justice (DOJ) informed the NRC that the DOJ had
revised its views on the applicability of firearms background checks mandated by section 161A
(see 42 U.S.C. § 2201a). These firearms background checks will provide assurance that such
security personnel are not barred under federal and state law from receiving, possessing,
transporting, or using any covered weapons.
Specifically, DOJ indicated that section 161A mandates that all security personnel with duties
requiring access to covered weapons who are engaged in the protection of Commission-
designated facilities, radioactive material, or other property owned or operated by an NRC
licensee or certificate holder must be subject to a fingerprint-based background check by the
U.S. Attorney General (AG) and a firearms background check against the FBIs National Instant
Background Check System (NICS). Covered weapons include both standard weapons and
enhanced weapons (e.g., machineguns).
The Commission will designate the classes of facilities, radioactive material, and other property
that are subject to firearms background checks under section 161A by promulgating regulations.
The NRC staff is currently developing a proposed rule to implement the provisions of section
161A that will be published in the Federal Register for public comment. Licensees and
certificate holders cannot begin firearms background checks until after the NRC issues a final
rule implementing section 161A.
SUMMARY OF ISSUE
Due to changes in the scope of applicability of the firearms background checks, the NRC is
issuing this supplement to permit impacted licensees, certificate holders, applicants, and their
respective armed security personnel to adjust their advance planning efforts before the NRC
issues new regulations on firearms background checks. Due to the revision of the DOJs views
on the applicability of the firearms background checks, the NRCs approach in this proposed
rule has changed significantly.
Under the revised proposed rule, firearms background checks would be mandatory for all
licensees and certificate holders who meet the following two test criteria. First, the licensee or
certificate holder must fall within one of the classes of facilities, radioactive material, and other
property designated by the Commission. Second, the licensee or certificate holder must also
employ covered weapons as part of their protective strategy. Both criteria must be met to be
subject to the firearms background check requirements. For those licensees and certificate
holders, firearms background checks would be required of all security personnel whose official
duties require access to covered weapons. Applicants for a license or a certificate of
compliance would not be subject to these proposed regulations until the NRC issues their
respective license or certificate of compliance.
The firearms guidelines (issued by the Commission, with the approval of AG, under the
mandate of section 161A) specify that firearms background checks are required of security
personnel whose official duties require access to covered weapons. Covered weapons include
both standard weapons (e.g., handguns, rifles, and shotguns) and enhanced weapons (e.g.,
RIS 2008-10, S1
Page 3 of 6
machineguns). The NRC intends to apply this requirement to security personnel who handle,
use, and repair covered weapons and who inventory enhanced weapons. For example, this
would include security individuals performing armed duties; firearms instructor duties; armorer
duties involving repair, issuance and receipt of weapons; and enhanced-weapons inventory
personnel. This would not include warehouse or supply personnel who receive shipments of
weapons, provided the weapons remain in their shipping containers, are promptly turned over to
security personnel, and are promptly moved to security storage areas (e.g., armories).
The proposed rule would indicate that affected licensees and certificate holders must begin
firearms background checks within 30 days of the NRC issuing a final rule designating classes
of facilities, radioactive material, and other property. Within 180 days of a final rule taking effect,
all affected licensees and certificate holders must remove from access to covered weapons any
security personnel who have not completed a satisfactory firearms background check. A
proceed NICS response is considered a satisfactory firearms background check. A delayed
NICS response or a denied NICS response is considered an adverse firearms background
check.
During the 180-day implementation period, individuals who receive a delayed NICS response
may continue duties that require access to standard weapons, but not to enhanced weapons.
Additionally, individuals who receive a denied NICS response must be removed from duties
that require access to covered weapons. Individuals who have been removed from duties that
require access to covered weapons and subsequently complete a satisfactory firearms
background check may be returned to such duties.
The information contained in RIS-2008-10 on disqualifying criteria for possessing and issuing
firearms and ammunition currently stipulated under 18 U.S.C. § 922(d), (g), and (n) remains
unchanged. The information on the FBIs VAF program is repeated below as aid to the reader.
Security Officer Initiatives in Advance of Firearms Background Checks
Because the FBIs NICS database uses a name- and descriptor-based search process, rather
than a fingerprint-based search process, an individual who has a common name, has been the
victim of identity theft, or may have incomplete or inaccurate records in the NICS database (e.g.,
the expungement of a prior conviction or the receipt of a pardon may not have been recorded)
could receive a false-positive denied response indicating she or he is under a Federal firearms
disability. For a denied response, the NICS automatically refers the individual to the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) for possible criminal investigation. The FBI
will use the fingerprint impressions submitted by the security officer under a firearms
background check to resolve questions of identity following the NICS search process, e.g., is
hypothetical security officer John Smith (applying for a firearms background check) one of the
18 individuals named John Smith with a record in the NICS database indicating they are under
a Federal firearms disability. Consequently, while the use of fingerprints as part of a firearms
background check will reduce the potential for misidentification of an individual as being under a
Federal firearms disability, it will not completely eliminate such potential events and subsequent
false positive referrals to the ATF. Therefore, since many security personnel have not been
previously checked against the FBIs NICS database, the NRC recommends security personnel
consider applying to the FBI under the FBIs VAF program, in advance of being subject to a
future firearms background check pursuant to an NRC regulation.
RIS 2008-10, S1
Page 4 of 6
Individuals applying for entry into the VAF program submit descriptive data and fingerprint
impressions to the FBI which are then examined against the NICS databases to determine
whether the individual is under a Federal firearms disability. If no prohibitive criteria exist, the
application would be approved and the applicant would be placed in the VAF. These individuals
are issued a unique personal identification number (UPIN). Security officers would be able to
include their UPIN on the proposed NRC Form 754 they would submit under future firearms
background checks and thus would reduce the potential for misidentification and consequent
delays in completing their firearms background check. Additionally, applicants to the VAF
program whose entry is rejected due to the presence of prohibitive criteria are not automatically
referred to ATF. Further information on the FBIs VAF program can be found on the FBIs Web
site (Reference 1). Furthermore, an individual who believes they should not be included in the
NICS database can appeal to the FBI to correct any inaccurate or incomplete records or provide
proof of their identity.
Accordingly, the NRC recommends that licensees, certificate holders, and applicants discuss
the contents of this RIS with their security personnel whose duties require, or will require,
access to covered weapons.
BACKFIT DISCUSSION
This RIS does not impose a regulatory staff position interpreting Commission rules that is either
new or different from a previously applicable staff position, and, therefore, it is not a backfit as
defined by 10 CFR 50.109, 70.76, 72.62, or 76.76. This RIS concerns licensee, certificate
holder, and security personnels compliance with statutory obligations under 42 U.S.C. § 2201a
regarding firearms background checks and with security personnels voluntary participation in
the FBIs VAF program. This RIS requires no action or response. Consequently, for the
reasons described above, the staff did not perform a backfit analysis.
FEDERAL REGISTER NOTIFICATION
A notice of opportunity for public comment on this RIS was not published in the Federal Register
because this RIS is informational. However, the NRC did hold a public meeting on
September 3, 2008, with the Nuclear Energy Institute at the Bethesda North Marriott Hotel &
Conference Center in Rockville, MD, to discuss the supplemental RIS. A draft of the
supplemental RIS was available on the NRCs public Web site prior to the meeting for
stakeholder review. Stakeholders provided both oral and subsequent written comments to the
NRC staff on the draft supplemental RIS and the staff considered those comments in
developing this supplemental RIS.
CONGRESSIONAL REVIEW ACT
The NRC has determined that this action is not subject to the Congressional Review Act
(5 U.S.C. §§ 801-808).
PAPERWORK REDUCTION ACT STATEMENT
This RIS discusses existing information collection requirements that are subject to the
Paperwork Reduction Act of 1995 (44 U.S.C. § 3501, et seq.). These information collection
requirements were approved by the Office of Management and Budget (OMB) under control
RIS 2008-10, S1
Page 5 of 6
number 3150-0002. This RIS also discusses proposed information collection requirements that
will be subject to the Paperwork Reduction Act of 1995. However, these information collection
requirements (which are associated with the proposed firearms background checks required by
section 161A and the proposed NRC Form 754) have not been approved by OMB as of the date
of issuance of this RIS.
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.
REFERENCE
1. FBIs VAF program information FBIs Web site http://www.fbi.gov/hq/cjisd/nics/index.htm
under the General Information about NICS heading in the link to the NICS Voluntary
Appeal File Brochure. The pdf link for this brochure contains the form to apply to the VAF
program.
RIS 2008-10, S1
Page 6 of 6
CONTACT
This RIS requires no specific action or written response. If you have any questions on this RIS,
please contact one of the technical contacts listed below.
Michael J. Case, Director
James E. Lyons, Director
Division of Policy and Rulemaking
Division of Site and Environmental Reviews
Office of Nuclear Reactor Regulation
Office of New Reactors
Larry W. Camper, Director
Daniel H. Dorman, Director
Division of Waste Management and
Division of Fuel Cycle Safety and Safeguards
Environmental Protection
Office of Nuclear Material Safety and Safeguards
Office of Federal and State Materials and
Environmental Management Programs
Technical Contacts:
Philip Brochman, NSIR
Bob Beall, NRR
(301) 415-6557
(301) 415-3874
E-mail:Phil.Brochman@nrc.gov
E-mail:Robert.Beall@nrc.gov
(301) 415-3017
(301) 492-3136
E-mail:John.Hickman@nrc.gov
E-mail:Peter.Habighorst@nrc.gov
Enclosure: List of Recently Issued FSME Generic Communications
Note: A complete listing of recent NRC generic communications may be found on the NRCs
public Web site http://www.nrc.gov under the link to: Electronic Reading Room>Document
Collections.
RIS 2008-10, S1
Page 6 of 6
CONTACT
This RIS requires no specific action or written response. If you have any questions on this RIS,
please contact one of the technical contacts listed below.
Michael J. Case, Director
James E. Lyons, Director
Division of Policy and Rulemaking
Division of Site and Environmental Reviews
Office of Nuclear Reactor Regulation
Office of New Reactors
Larry W. Camper, Director
Daniel H. Dorman, Director
Division of Waste Management and
Division of Fuel Cycle Safety and Safeguards
Environmental Protection
Office of Nuclear Material Safety and Safeguards
Office of Federal and State Materials and
Environmental Management Programs
Technical Contacts:
Philip Brochman, NSIR
Bob Beall, NRR
(301) 415-6557
(301) 415-3874
E-mail: Phil.Brochman@nrc.gov
E-mail: Robert.Beall@nrc.gov
(301) 415-3017
(301) 492-3136
E-mail: John.Hickman@nrc.gov
E-mail: Peter.Habighorst@nrc.gov
Enclosure:
List of Recently Issued FSME Generic Communications
Note: A complete listing of recent NRC generic communications may be found on the NRC
public Web site http://www.nrc.gov under the link to: Electronic Reading Room>Document
Collections.
DISTRIBUTION: (NSIR-08-0444)
RidsNsirDsp
RidsNsirOd
RidsNsirMailCenter
SUNSI Review performed by: P. Brochman
ADAMS Accession # ML08dddxxxx
- See previous concurrence
Non-Public
x Public Sensitive
x Non-Sensitive
OFC:
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OFFICIAL RECORD COPY
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Enclosure
RIS 2008-10, S1
Page 1 of 1
List of Recently Issued FSME Generic Communications
Date
GC No.
Subject
Addressees
05/13/08
Notice Regarding Forthcoming
Federal Firearms Background
Checks
All NRC licensees, certificate holders, and
applicants for a license or certificate of
compliance who use armed security
personnel as part of their physical
protection system and security
organization. All Radiation Control Program
Directors and State Liaison Officers.
05/12/08
Precautions to Protect Children Who
May Come in Contact with Patients
Released After Therapeutic
Administration of Iodine-131
All NRC medical-use licensees, master
material licensees, Agreement State
Radiation Control Program Directors, and
State Liaison Officers
05/09/08
Considerations for Extended Interim
Storage of
Low-level Radioactive Waste by
Fuel Cycle and Materials Licensees
All holders of NRC fuel cycle and materials
licenses. All Radiation Control Program
Directors and State Liaison Officers
06/16/08
Status And Plans for Implementation
of NRC Regulatory Authority for
Certain Naturally Occurring and
Accelerator-Produced Radioactive
Material
All NRC materials licensees, Radiation
Control Program Directors, State Liaison
Officers, and the NRCs Advisory
Committee on the Medical Uses of
Isotopes
07/18/08
Voluntary Security Enhancements
for Self-Contained Irradiators
Sources
All NRC Materials Licensees Authorized to
Possess Self-Contained Irradiators
Containing Cesium Chloride (CsCl) ; all
Agreement State Radiation Control
Program Directors and State Liaison
Officers; all members of the Advisory
Committee on the Medical Uses of
Isotopes.
05/16/08
Precautions to Take Before Sharing
Sensitive Security-Related
Information
All NRC licensees who are implementing
U.S. Nuclear Regulatory Commissions
Order Imposing Increased Controls (IC
Order) or implementing IC requirements by
license condition; all Agreement State
Radiation Control Program Directors and
State Liaison Officers
Note: This list contains the six most recently issued generic communications, issued by the Office of
Federal and State Materials and Environmental Management Programs (FSME). A full listing of all
NRC generic communications may be viewed at the NRCs public Web site at the following address:
http://www.nrc.gov/reading-rm/doc-collections/gen-comm/index.html.