ML20207T116
| ML20207T116 | |
| Person / Time | |
|---|---|
| Issue date: | 10/08/1986 |
| From: | Jennifer Davis NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML19310E127 | List:
|
| References | |
| FRN-51FR40438, RULE-PR-73 AC27-2-21, NUDOCS 8703230212 | |
| Download: ML20207T116 (37) | |
Text
- - - - - -
A-c27-Z. .
PDR Victor Stello, Jr.
OCT 8 1986 MEMORANDUM FOR: Victor Stello, Jr.
Executive Director for Operations FROM: John G. Davis, Director Office of Nuclear Material Safety end Safeguards
SUBJECT:
PROPOSED AMENDMENT TO 10 CFR PART 73, " REQUIREMENTS FOR CRIMINAL HISTORY CHECKS" Enclosed for your signature is a Commission Paper amending 10 CFR Part 73,
" Physical Protectior, of Plants and Materials," to implement a program for the control and use of criminal history data received by licensees frcm the Federal Bureau of Investigation (FBI). Public Law 99-399, "The Omnibus Diplomatic Security and Anti-Terrorism Act of 1986" signed by the President on August 27, 1986 requires the NRC to issue this regulation. The Law mandates that NRC establish these regulations within six months of enactment of the Public Law.
The NRC was also authorized to collect and retain fees for its services and to reimburse the FBI. However, in order to do so, an amendment to the Appropriations Act or continuing resolution, if applicable, is needed. An amendment for this purpose has been sent to Congress. In the event that this issue cannot be resolved in this session of Congress, arrangements are being made for NPC to deposit checks received from the licensees directly into the FBI account to that the FBI may withdraw the appropriate amcunt for their services. The NRC will be able to retain fees for its serv.ces only after an amendrent to the Appropriations Act has been enacted.
The Committee to Review Generic Recuirements (CRGR) was briefed on this proposed rule package on September 17, 1986. All recommendations but cne have been accommodated. The CRGR recommended fingerprinting be required only for unescorted access to vital areas rather than to the nuclear pcwer facility which includes both protected areas and vital areas of a nuclear power plant. To be consistent with the legislative intent and specific language of Public Law 99-399, the proposed rule has been written to reouire fingerprinting cf individuals granted unescorted access to the nuclear power facility. At the request of CRGR, specific public coment is being requested on this issue in the Supplementary Information of the proposeo rule.
I i
8703230212 870318 PDR PR 73 51FR40438 PDR
n Victor Stello, Jr.
2_
Coordination: The Office of Administration, the Office of Inspection and Enforceirent, the Office of . Nuclear Reactor Regulation, the Office of Resource Management, and the Office of Public Affairs concur in this matter. The Office of the General Counsel has reviewed the rule and concurs.
/s/
John G. Davis, Director Office of Nuclear Material Safety and Safeguards
Enclosure:
Commission Paper w/ enclosures DISTRIBUTION:
NM55 r/f RScroggins -
SGRT r/f&s/f WParler .
XJamgochian JYardumfan RBurnett DMausshardt JDavis H0enton/GMcPeek JTaylor PNorry Fingram/JFouchard WNcDonald NRR
- ADM PA
- GMcPeek for LBush for PNorry FIngram for FDenton by-phone JTaylor s'Fouchard by phone 10/2/86 10/y/86 10/ /86 10/2/86 DED0/IRM* RM + OGC M F n -
WMcDonald RScroggins WParler QV 10/
4 /86 10/g/86 10/q/86
- See previous concurrence i
UFC :5GRT * :5GRT * :56RT * :SG * :SG 4 j :NMS5 m s :hM S
.____:._________:_______.____:____..______:......____.:__.p._____:____4._____:..)....__
NAME :KJamgochian :JYardumian :GMcCorkle :ETen Eyck :R8urmett :0MaussMardt:JD @
_____:___________:..______...:____________:___________:____f.___.__:._____....__:.4______
DATE :10/ /86 :10/ /86 :10/ /86 :10/ /86 :10/7/86 :10/(/86 :10/ /86
Victor Stello, Jr.
1
' Coordination: The Office of Administration, the Office of Inspection and Enforcement, the Office of Nuclear Peactor Regulation, the Office of Resource Management, and the Office of Public Affairs concur in this matter. The Office of the General Counsel has no legal objection.
John G. Davis, Director Office of Nuclear Material Safety and Safeguards
Enclosure:
Commission Paper w/ enclosures b!STRIBUTION:
NM55 r/f RScroggins SGRT r/fas/f WParler KJamgochian JYardumian .
RBurnett OMausshardt JDavis HDenton/GMcPeek JTaylor FNorry Fingram/JFouchard WMcDonald NRR IE ADM PA GMcPeek for LBush for PNorry Fingram for HDenton by phone JTaylor % hcos JFouchard by phone 10/2/86 10/3 /86 ~ 10/ /86 10/2/86 DED0/IRM WMcDonald RM 8 db OGC c% PRScroggins WParler 10/0/86 10/ 6 /86 10/ /86
'S eM Y
.h j u,n CFC :56RT y
- 5GRT
___:_______g :
_____:,__.________:__g.______:____________:____________:____ W :5G :56 :hM55 NM55 NAME :XJamgochian :JYardumian :GMcCorkle :ETen Eyck :R8urnett :DMausshardt :JDavis
_____:____________:____________:-___7_______:___$/86 DATE :10/3/86 :10/3/86 :10/(b /86 :10/ :10/ /86 :10/ /86 :10/ /86
e For: The Commissioners From: Victor Stello, Jr.
Executive Director for Operations
Subject:
PROPOSED RULE 10 CFR 73.57, IMPLEMENTING REQUIREMENTS FOR LICENSEE ACCESS TO FBI CRIMINAL HISTORY DATA.
Purpose:
To request the Commission to review the proposed rule which will' implement procedures for the control and use of criminal history data received from the Federal Bureau of Investigation (FBI) as part of Federally mandated criminal history checks of individuals granted unescorted access to nuclear power facilities or access to Safeguards Information by power reactor licensees.
Background:
In mid-1983, industry's initiative for access to FBI criminal his-tory data (S. 1589) failed to pass Congress. Recognizing that enactment of legislation was needed to support the background investigation requirement of access authorization programs, NRC
" staff prepared and transmitted SECY 83-517, proposed legislation, to the Commission in December 1983. In February 1984, Senator Denton was briefed on the need for the legislation and in March 1984, the Senator introduced S. 2740, The Anti-Nuclear Terrorism Act. Reintroduced in January 1985, as S. 274, The Nuclear Power Plant Security and Anti-Terrorism Act of 1985, the legislation passed the Senate the following October. On May 13, 1986, Chairman Palladino testified in support of H.R. 3330, the companion House Bill. Legislation was approved by Congress on August 12,
' 1986 and the President signed it into Public Law on August 27, 1986 as part of Public Law 99-399, the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986.
l Discussion: The Public Law requires that within six months of enactment the NRC issue this regulation to (1) implement procedures for the taking of fingerprints, (2) establish conditions for the use of the criminal history data to include limits on redissemination and assurance that the information is usea solely for its intended
Contact:
Kris Jamgochian, NMSS I 42-74754 O
6
The Commissioners 2 l
l purpose, and (3) provide individuals subject to fingerprinting the right to complete, correct, and explain information contained J in their criminal history records prior tu any final adverse action.
The Public Law also stipulates that the NRC serve as a channeling agency to collect fingerprint cards from licensees, forward them to the FBI for identification and a criminal history record check, and distribute the results of the searcti back to the licensees.
The NRC was also authorized to collect and retain fees for its services as channeling agency. However, for the NRC to use the fees collected to reimburse the FBI and to cover NRC's costs, an amendment is necessary to the Appropriations Act or the continuing
. resolution, if applicable. An amendment for this purpose has been sent to Congress. In the event that this issue cannot be resolved in this session of Congress, arrangements are being made for NRC to deposit checks received from the licensees directly into the FBI account so that the FBI may withdraw the appropriate amount for their services. The NRC will be able to retain fees for its services only after an amendment to the Appropriations Act has been enacted.
Because the schedule mandated for issuing the rule in final form is limited to six months, the staff is addressing resolution of the following related issues in parallel with rule development:
3 1. Development of a tracking / status monitor system for fingerprint cards passing through the NRC;
- 2. Contracting for data entry people and equipment, administration, and courier services; and
- 3. Finding the needed space for the processing system within the agency or at the contractor location.
Issue resolution and system operational capability are necessary by February 1987.
Recommendations: That the Commission:
- 1. Approve the amendment as set forth in Enclosure 1 for publication as a proposed rule in the Federal Register, with a 30-day public comment period.
- 2. Certify that this rule will not have a significant economic impact on a substantial number of small entities, in order to satisfy the requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b).
- 3. Note that issuance of this rule in final form must be no later than February 27, 1987 as Federally mandated. The staff intends to forward the Federal Register Notice to the
The Commissioners 3 Secretary of the cv: ission for signature within 10 days of the date of this paper unless otherwise instructed by the Commission.
- 4. Note:
- a. The Regulatory Analyc.is which appears as Enclosure 2 will be placed in the Public Document Room;
- b. Neither an environmental impact statement nor a negative declaration need be made in connection wich this rulemaking because it is nonsubstantive and insignificant from the standpoint of environmental impact;
- c. The proposed rule contains information collection
~
requirements that are subject to the Paperwork Reduction Act of 1980. This rule will be submitted to the Office of Management and Budget for review and approval of the paperwork requirements;. -
- d. 'A Backfit Analysis has been prepared and provided as Enclosure 3;
- e. The appropriate Congressional Committees will be informed (Enclosure 4);
- f. A public announcement will be issued when the proposed rule is filed with the Office of the Federal Register (Enclosure 5);
- g. Copies of the Federal Register Notice of proposed rulemaking will be distributed to all licensees by ADM:TIDC. The notice will be sent to other interested parties upon request;
- h. The Chief Counsel for Advocacy of the Small Business Administration will be informed of the certification regarding economic impact on small entities and the reasons for it is required by the Regulatory-Flexibility Act.
The Commissioners 4
- 1. An overview of the anticipated sequence of activities for processing of information and of the impact and implications of implementing the rule is provided as Enclosure 6.
J. The Office of Administration, the Office of Inspection and Enforcement, the Office of Nuclear Reactor Regulation, the Office of Resource Managment, and the Office of Public Affairs concur in this matter. The Office of the General Counsel has reviewed the rule and Concurs.
W Victor Stello, Jr.
Executive Director for Operations
Enclosures:
- 1. Federal Register Notice
- 2. Regulatory Analysis
- 3. Backfit Analysis
- 4. Draft Congressional Letter
- 5. Draft Public Announcement
- 6. Overview l
t l
+
e i T'
- f. An overview of the anticipated sequence of activities for processing of information and of the impact and implications of implementing the rule is provided as Enclosure 6.
J. The Office of Administration, the Office of Inspection and Enforcement, the Office of Nuclear Reactor Regulation, the Office of Resource Nanagement, and the Office of Public Affairs concur in this matter. The Office of the General Counsel has reviewed the rule and concurs.
Victor Stello, Jr.
Executive Director for Operations
Enclosures:
- 1. Federal Register Notice
- 2. Regulatory Analysis
- 3. Backfit Analysis
- 4. Draft Congressional Letter ** See previous concurrence 1
- 5. Draft Public Announcement I 6. Overview
- concurrence by phone i
0FC: SGRT ** : SGRT ** : SGRT ** :SG ** :SG N :NMSS :NMSS g
A...... s, _-.... ....
NAME:KJamgochian:JYardumian:GMcCorkle:ETenEyck:RB ett:DMauss ardt:JD
_________ . 7....
l ..___..____..........__
...___.._____...__..__..___J.______
/86:10/f;/86:10/h/86
! DATE:10/ /86 : 10/ /86 :10/ /86 :10/ f
- 10 /86 l
'rC:*NRR :*IE :*PA :*0ED0/IRM :*RM NAME:GMcPeek for : Bush for:Ingram for: :WMcDonald for FDenton :JTaylor :JFo. chard : WMcDonald :RScroggins DATE:10/2/86 : 10/3/86: 10/2/86 :10/6/86 :10/6/86 :
l - k n 1 -0FC: OGC :ADM : : :
NAME:WParler :PNor y: : :
DATE:10/I/86 : 10/7/86:
u 0FFICIAL RECORD COPY
[7590-01]
NUCLEAR REGULATORY COMMISSION 10 CFR Part 73 Requirements for Criminal History Checks AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) proposes to add a new regulation to implement a program for the control and use of criminal history data received from the Federal Bureau of Investigation (FBI) as part of criminal history checks of individuals granted unescorted access to nuclear power facilities or access to Safeguards Information by nuclear power reactor licensees. Conducting criminal history checks of such individuals will help assure that individuals with criminal histories impacting upon their *eliability and trustworthiness are not permitted unescorted access to a nuclear power facility or access to Safeguards Information. Issuance of this regulation is required under the provisions of Public Law 99-399, " Omnibus Diplomatic Security and Anti-Terrorism Act of 1986."
OATES: Submit comments by
- Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given unless comments are received on or before this date.
- l. " Insert 30 days after date of publication in Federal Register.
l l 1 Enclosure 1
[7590-01]
ADDRESSES: Send comments to: Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Docketing and Service Branch. Deliver comments to: Room 1121, 1717 H Street NW.,
Washington, DC, between 8:15 a.m. and 5:00 p.m.
Examine comments received and the regulatory analysis at: The NRC Public Document Room, 1717 H Street NW., Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT: Kristina Jamgochian, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 427-4754.
SUPPLEMENTARY INFORMATION: Section 606 of Public Law 99-399, "The Omnibus Diplomatic Security and Anti-Terrorism Act of 1986," requires nuclear power reactor licensees and applicants to conduct criminal history checks through the use of FBI criminal history data on individuals with unescorted access to nuclear power facilities or access to Safeguards Information.
The Act, signed by the President on August 27, 1986, requires the NRC to issue regulations to establish conditions for the use and control of the criminal history data received from the FBI no later than six months after the date of the enactment of the Act. These conditions include procedures for the taking of fingerprints, limits on use and redissemination of criminal history data, assurance that the information is used solely for its intended purpose, and provisions that individuals subject to finger-printing are provided the right to complete, correct, and explain informa-tion in their criminal history records prior to any final adverse action.
The Conference Report on H.R. 4151 (published in the Congressional Record on August 12,1986, p. H-5965) contains the following legislative history:
2 Enclosure 1
(7590-01)
CRIMINAL HISTORY RECORD CHECKS l
"The Senate amendment (Section 703) contains a provision requiring fingerprinting and criminal history record checks for certain employees of nuclear power plants.
The House bill contains no comparable provision.
The conference substitute (Section 606) is similar to the Senate amendment with some modifications. The substitute,'which incorporates the substance of S. 274, passed by the Senate on October 3, 1985, adds a new section to the Atomic Energy Act of 1954 which is intended to establish a uniform procedure for criminal history checks, applicable to all commercial licensees, regardless of ownership.
The Committee of Conference agrees that the Nuclear Regula-tory Commission (NRC) would serve as a channeling agency, in order to collect fingerprint cards from licensees and applicants, forward them to the Federal Bureau of Investigation for identifi-cation and a criminal history record eneck, and distribute the results of the search to the licensees and applicants. The NRC will not screen the results. It will, however, be responsible for checking incoming cards to ensure that they are complete and legible and have been submitted by a licensee or applicant entitled to receive criminal history information under this law.
The NRC may refuse to accept requests from, or return results to, a licensee or applicant the Ccmmission finds is mishandling or misusing information obtained under this provision.
3 Enclosure 1 l
[7590-01]
.The conference substitute specifies that the regulations )
the Commission is to promulgate under this section must include provisions to ensure that no final adverse action may be taken against an employee or job applicant solely on the basis of information obtained under this section involving an arrest more than 1 year old for which there is no information of the disposition or an arrest that resulted in dismissal of the charge or an acquittal. A licensee or applicant receiving a criminal record showing an arrest not accompanied by a disposi-tion may seek to determine the disposition of the charge, but if no disposition information can be of tained, the arrest cannot be used as the basis for adverse action.
The conference substitute also specifies that the Commis-sion's regulations must protect individuals subject to finger-printing from misuse of criminal history records provided under the section. Misuse would include, for example, use of the records to discriminate against minorities or to penalize union members or whistleblowers or to accomplish any other unlawful purpose. As the Senate indicated in its report on S. 274, the statutory requirements for the Commission's regulations are minimum requirements and are not meant to limit the discretion of the Commission to implement a practical program for carrying out the purposes of the section and protecting the due process and privacy interests of prospective employees.
The Committee of Conference also added language authoriz-ing the Commission to collect and retain fees for its services as channeling agency. The FBI already has established and is 4 Enclosure 1
, l
[7590-01].
. authorized to collect fees for its processing non-criminal justice fingerprint checks. It is the intent of the Committee of Conference that this language ensures that the FBI will be able to collect its' normal fee for the work it will do in i l
processing record checks under this provision."
Licensees cannot have access to the criminal history data provided by the legislation until the NRC has established regulations for the con-trol and use of the data. In accordance with the Act, the NRC will only collect fingerprint cards, forward them to the FBI, and distribute the results of the search. The NRC will not maintain any new files of informa-tion or system of files to contain either fingerprint cards ora the results of the search. Only those records necessary for administering the program will be kept. The routine turnaround time for a criminal history check, from the time the licensee mails the fingerprint card to the NRC to the time the licens,ee receives the returned fingerprint card with the results of the criminal history check, is expected to average 25 working days.
The legislation requires nuclear. power reactor licensees and applicants to conduct criminal history checks on individuals with unescorted access to nuclear power facilities or access to Safeguards Information. However, current regulations do not require protection measures against radiological sabotage until issuance of an operating license. Accordingly, the Commission does not deem it necessary to require fingerprinting of applicant employees for unescorted access to the facility. Applicants who anticipate receiving their operating license in the near future and wish to submit fingerprints of those individuals who will remain on staff af ter the license is issued, may do so in accordance with the provisions of the rule.
5 Enclosure 1
O
[7590-01]
Implementation of this rule will take place immediately upon its effec-tive date. The Commission will send to the licensee an initial stock of the necessary fingerprint cards prior to the date of the effective rule, as well as a sample forwarding letter to be used by licensees for trans-mitting the fingerprint cards' and fees to the NRC. The forwarding letter will contain the following information: facility docket number, number of fingerprint cards being submitted, amount of the proper fee being sub-mitted, and the contact person at the facility along with his/her phone number. (The fingerprint cards and the results of the criminal history checks, when completed, will be sent back to the licensee to the attention of the contact person.) In accordance with the Act, ;he fee will be utilized to offset NRC and FBI c'osts for processing of fingerprints and criminal history records.
Within 180 days of the effective date of this rule, each licensee will return to the Commission, as they are completed, the fingerprint cards of all individuals (licenses, contractors, manufacturers, and suppliers) who are deemed to require unescorted access at the nuclear power facility or access to Safeguards Information. The fingerprint cards are to be filled out completely and the facility docket number shall be included on each individual card in addition to the information required in the space marked " Reason Fingerprinted". To assist the licensee in ensuring a low rejection rate of submitted fingerprint cards, Edison Electric Institute (EEI) and FBI training tapes are available for use in establishing procedures for the proper method of taking fingerprints.
Fingerprint cards shall be filed by the licensee on behalf of the contrac-tor, manufacturer, and supplier employees who are expected t0 have unes-corted access to a nuclear power facility or to Safeguards Information 6 Enclosure 1
[7590-01]
with the appropriate fee attached. NRC personnel requiring unescorted access to the facility do not need to be fingerprinted by the licensee.
The Cosunission conducts an equivalent program for fingerprinting of NRC employees for FBI criminal history checks.
In accordance with the provisions of S 73.57(e) and (f), the licensee will establish procedures for implementing the individual's right to correct, complete, and explain information prior to any adverse action.
The licensee will also establish procedures for limiting redissemination of an individual's criminal history record to only those who have a need to have access to the information in performing assigned duties in the process of granting or denying unescorted access to a nuclear power facil-ity or access to Safeguards Information as well as against unauthorized disclosure. Submittal of an amended security plan is not necessary.
During the internal staff review of the proposed rule, a question arose as to whether or not fingerprinting should be required only for unescorted access to vital areas rather than to the nuclear power facility which also includes protected areas. To be consistent with the legisla-tive intent and specific language of Public Law 99-399, the staff has written the proposed rule to require fingerprinting of individuals granted unescorted access to the nuclear power facility. Additionally, during the public comment period on the proposed Access Authorization Rule, licensee and industry groups commented that it was more cost effective to run a single access authorization program, especially since the majority of employees needing access to the protected area also required access authorization to one or more vital areas. In the interest of determining whether this view still prevails, specific response is requested during the public comment period to the following question: should fingerprinting 7 Enclosure 1
t .
[7590-01]
be required of individuals for unescorted access to vital areas only or to the nuclear power facility?
ENVIRONMENTAL IMPACT: CATEGORICAL EXCLUSION The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(3). Therefore neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.
PAPERWORK REDUCTION STATEMENT This proposed rule amends inforaation collection requirements that are subject to the Paperwork Reduccion Act of 1980 (44 U.S.C. 3501 et seq.). This rule has been subr.itted to the Office of Management and Budget for review and appreval of the paperwork requirements.
REGULATORY ANALYSIS l
The Commission has prepared a regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alterna-tives considered by the Commission. The analysis is available for inspec-tion in the NRC Public Document Room,1717 H Street NW. , Washington, DC 20555. Single copies of the analysis may be obtained from Kristi.T Jamgochian, Safeguards Reactor Regulatory Requirements Section, Div sion of Safeguards, Office of Nuclear Materi:1 Safety and Safeguards, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 427-4754.
8 Enclosure 1
u -
4
[7590-01]
REGULATORY FLEXIBILITY CERTIFICATION Based on the information available at this stage of the rulemaking proceeding and in accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission hereby certifies that if promulgated, this rule will not have a significant economic impact upon a substantial number of small entities. The proposed rule affects licensees who operate nuclear power plants under 10 CFR Parts 50 and 73. The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in S 605(b) of the Regulatory Flexibility Act of 1980, or within the definition of Small Business Size Standards set out in regu-lations issued by the Small Business Administration in 13 CFR Part 121.
BACKFIT ANALYSIS l
The staff has prepared a backfit analysis on this proposed regula-tion. The analysis is available for inspection in the NRC Public Document Room,1717 H Street NW. , Washington, DC. Single copies of the analysis may be obtained fron. Kristina Jamgochian, Safeguards Reactor Regulatory Requirements Section, Division of Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 427-4754.
LIST OF SUBJECTS IN 10 CFR PART 73 Part 73 - Hazardous materials - transportation, Incorporation by reference, Nuclear materials, Nuclear power plants and reactors, Penalty, Reporting and recordkeeping requirements, Security measures.
9 Enclosure 1
[7590-01]
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendment to 10 CFR Part 73.
PART 73 - PHYSICAL PROTECTION OF PLANTS AND MATERIALS'
- 1. The authority citation for CFR Part 73 is revised to read as follows:
AUTHORITY:
Secs. 53, 161, 68 Stat. 930, 948, as amended, sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as amended, 204, 88 Stat. 1242, as amended, 1245 (42 U.S.C. 5841, 584.4).
Section 73.37(f) is 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. '
For the purposes of sec. 223, 68 Stat. 958, as amended (42 U.S.C.
2273); SS 73.21, 73.37(g), 73.55 are issued under sec. 161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); SS 73.20, 73.24, 73.25, 73 26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 73.67 are issued under sec. 1611, 68 Stat. 949, as amended (42 U.S.C. 2201(i)); and SS 73.20(c)(1),
73.24(b)(1), 73.26(b)(3), (h)(6), and (k)(4), 73.27(a) and (b), 73.37(f),
73.40(b) and (d), 73.46(g)(6) and (h)(2), 73.50(g)(2), (3)(iii)(B), and (h), 73.55(h)(2), and (4)(iii)(B), 73.70, 73.71, 73.72 are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
10 Enclosure 1
[7590-01]
- 2. A new S 73.57 is added to read as follows:
S 73.57 Requirements for criminal history checks of in'dividuals granted unescorted access to a nuclear power facility or access to Safe-guards Information by pcwer reactor licensees.
(a) General. '
(1) Each licensee who is authorized to operate a nuclear power reactor under Part 50 shall comply with the requirements of this section.
(2) Eacn applicant for a license to operate a nuclear power reactor pursuant to Part 50 of this chapter shall submit fingerprint cards for those individuals who have access to Safeguards Information.
(3) Each applicant for a license to operate a nuclear power reac-tor pursuant to Part 50 of this chapter may submit fingerprint cards
- prior to receiving its operating license for those individuals who will require unescorted access to the nuclear power facility.
(b) General performance objective and requirements.
(1) Each licensee subject to the provisions of this section shall fingerprint each individual, except NRC employees and individuals respond-ing to a site emergency in accordance with the provisions of 73.55(a),
who is permitted unescorted access to the nuclear power facility or access to Safeguards Information. Individuals who have unescorted access authorization on
- will retain such access pending licensee receipt of the results of the criminal history check on the individuals' fingerprints, so long as the cards were submitted by ** .
The licensee will then review and use the information received from the FBI, and based on the provisions contained in this rule, determine either to
" Insert cate of final rule publication in Federal Register.
- Insert date 180 days after final rule publication in Federal Register.
11 Enclosure 1
[7590-01]
. continue to grant or to deny further unescorted access to the facility or Safeguards Information for that individual. Individuals who do not have ur.*scorted access after
- shall be fingerprinted by the licensee and the results of the criminal history records check shall be used in making a determination for granting unescorted access to the nuclear power facility.
(2) The licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history record.
(3) Fingerprints need not be taken, in the discretion of the licensee, if an individual who is a permanent employee of a licensee, contractor, manufacturer or supplier has been granted unescorted access to a nuclear power facility or to Safeguards Information by another licensee,. based in part on a criminal history records check under this section. In the case of temporary employees, fingerprints need not be taken so long as the individual has been fingerprinted within the last 180 days.
(4) All fingerprints obtained by the licensee under this section must be submitted to the Attorney General of the United States througn the Commission.
(5) The licensee shall review the information received from the Attorney General and consider it in making a determination for granting unescorted access to the individual.
(6) A licensee shall use the information obtained as part of a criminal history records check solely for the purpose of determining an
" Insert date of final rule publication in Federal Register.
12 Enclosure 1
, i
[7590-01]
individual's suitability for unescorted access to the nuclear power facility or access to Safeguards Information.
(c) Prohibitions (1) A licensee may not base a final determination to deny an indi-vidual unescorted access to the nuclear power facility or access to Safe-guards Information solely upon:
(i) An arrest more than 1 year old for which there is no informa-tion of the disposition of the case; or (ii) An arrest that resulted in dismissal of the charge or an acquittal.
(2) A licensee may not use information received from a criminal history check obtained under this section in a manner that would infringe.
upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the licensee use the informa-tion in any way which would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
(d) Procedures for processing of fingerprint checks.
(1) For the purpose of complying with this section, licensees shall submit 1 completed, legible standard fingerprint card (Form FD-258) supplied by the NRC for each individual requiring unescorted access to the nuclear power facility or access to Safeguards Information to the Director, Division of Security, U.S. Nuclear Regulatory Commission, Washington, OC 20555, Attention: Criminal History Check Section. Copies of these forms may be obtained by writing to: Information and Records Management Branch (PMSS), U.S. Nuclear Regulatory Commission, Washington, DC 20555. The licensee shall establish procedures to ensure that the quality of the fingerprints taken results in minimizing the rejection rate l
I of fingerprint cards due to illegible or incomplete caras.
13 Enclosure 1
i .
'[7590-01]
(2) The Commitsion will review applications for criminal history checks for completeness. Any Form FD-258 containing omissions or evident errors will be returned to the licensee for corrections. No additional fee will be charged for fingerprint cards needed to replace returned incomplete or illegible fingerprint cards if the original fingerprint card is attached to the resubmittal.
(3) Fees for the processing of fingerprint checks are due upon application. Licensees shall submit payment with the app'ication for the processing of fingerprints tnrough corporate check, certified check, cashier's check, or money order made payable to "U.S. NRC", at the rate of $15.00 for each card. Combined payment for multiple applications is acceptab?e.
(4) The Commission will forward to the submitting licensee all data received from the Federal Bureau of Investigation as a result of the licensee's application (s) for criminal history checks, including the individual's fingerprint card.
(e) Right to correct and complete information.
(1) Prior to any adverse action, the licensee shall make available to the individual the contents of records obtained from the Federal Bureau of Investigation for the purpose of assuring correct and complete informa-tion. Confirmation of receipt by the individual of this notification must be maintained by the licensee for a period of 3 years from the date of the notification.
(2) If after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes changes, corrections, or updating of the alleged deficiency, or to explain any matter in the record, the licensee shall inform the individual of proper procedures for 14 Enclosure 1
. . l 1
[7590-01]
l revising the record or including explanation in the record. These proce-dures include direct application to the agency that contributed the ques-tiened information or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation Identification Division, Washington, DC 20537-9700 as set forth in 28 CFR 16.30 through 16.34. In the latter case, the Federal Bureau of Investigation then forwards the challenge to the agency that submitted the data requesting 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 'n accordance with the information supplied by that agency. The licensee may not take .
final adverse action with respect to an individual based solely on information in the record that has been challenged by the individual as incorrect or incomplete until the individual has been af forded a reason-able amount of time to correct, complete, or explain the record or has declined to do so.
(f) Protection of information.
(1) Each licensee who obtains a criminal history record on an individual under this section shall establish and maintain a system of files and procedures for protection of the record and the perconal 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 have access to the information in performing assigned duties in the process of granting or denying unescorted access to the nuclear power facility or access to 15 Enclosure 1
e .
, 3
[7590-01]
Safeguards'Information. No individual authorized to have access to the information may redisseminate the information to any other individual who does not have a need to know.
(3) The personal information obtained on an individual from a criminal history record check may be transferred to another licensee:
(1) Upon the individual's request to redisseminate the information contained in his/her file, and (ii) If the gaining licensee verifies information such as name, dite of birth, social security number, sex, and other applicable physical characteristics for identification, and (iii) If the individual was terminated within the previous 365 days, the termination was under favorable conditions.
(4) The licensee shall make criminal history records obtained under this section available for examination onsite by an authorized represen-tative of the NRC to determine compliance with the regulations and laws.
(5) The licensee shall retain all fingerprint cards and criminal history records received from the FBI on an individual (including data indicating no record) for 3 years after termination or denial of unescorted access to the nuclear power facility or access to Safeguards Information.
Oated at Washington, D.C. this day of , 1986.
For the Nuclear Regulatory Commission.
Samuel J. Chilk, Secretary of the Commission.
16 Enclosure 1
- - - - - = - - - - - - -- - ---
REGULATORY ANALYSIS REQUIREMENTS FOR CRIMINAL HISTORY CHECKS 10 CFR PART 73
- 1. ACTION - PROPOSED RULE l 1.1 Description -
I
)
l i The Commission proposes to add a new requirement, 10 CFR 73.57, for the control and use of criminal history data received from the Federal Bureau of Investigation (FBI) as part of Federally mandated criminal history checks of individuals with unescorted access to nuclear power facilities or individuals .
granted access to Safeguards Information by power reactor licensees.
- 1. 2 Need for the Rule Public Law 99-399, "The Omnibus Diplomatic Security and Anti-Terrorism Act of 1986," requires nuclear power facility licensees to conduct criminal history checks through the use of FBI criminal history data on individuals with un-escorted access to the nuclear power facility or access to Safeguards Information.
This data is made available to the private sector only through Federal law. The legislation requires the NRC to issue regulations to establish conditions for the use and control of the criminal history data received from the FBI. These conditions include procedures for the taking of prints, limits on use and redissemination, assurance that the information is used solely for its intended purpose, and provision that individuals subject to fingerprinting are provided the right to complete and correct information in their criminal history records prior to any final adverse action. It is important that individuals granted unescorted access to nuclear power facilities or access to Safeguards Information be subject to FBI criminal history checks to help assure that these individuals do not have a criminal history bearing upon their personal trustworthiness and reliability.
1 Enclosure 2
I
- 2. IMPACT ON THE NRC 2.1 Developmental Impact NRC anticipates no significant developmental cost resulting from this proposed rule.
2.2 Implementation Impact Implementation will involve the NRC's processing of criminal record checks for all current individuals with unescorted access to nuclear power facilities. Although this will involve tens of thousands of checks at the implementation stage, the impact to the NRC is expected to be minimal because of the NRC's limited role in this process: essentially as a midway point -
between the utilities and the FBI in the transmittal of industry requests and FBI findings. Although the NRC is authorized to collect fees for reimbursement" for its services, an amendment to the Appropriations Act or continuing resolu-tion is necessary for the NRC to do so. Accordingly, until such an amendment is approved by Congress, NRC will no't be able to recover its costs for processing (approximately 52 per fingerprint card).
2.3 Operational Imoact It is estimated that because of labor turnover rates in the industry, approximately 20,000 criminal history checks will be required on an annual recurring basis. However, as noted above (Section 2.2) this activity is expected to impact the NRC only marginally because of the NRC's limited participation in processing these checks and the expectation of reimbursement.
Consequently, no significant operational costs are envisioned for the NRC.
Inspection effort resources are accounted for as part of the proposed Policy Statement for Access Authorization Program at Nuclear Power Plants.
2 Enclosure 2
- U
- 3. IMPACT ON INDUSTRY 3.1 Industry Implementation The impact on industry implementation will occur in the area of cost of fingerprint submittal through the NRC to the FBI for the criminal records check.
Based on discussions with the FBI, it is expected that a fee of $15 per investigation, payable by industry, would constitute full reimbursement to the government. As new nuclear power sites ar'e licensed the affected individuals would be subject to FBI criminal histori checks as well. However, this would be in lieu of criminal history checks already conducted by the industry which are more labor intensive and more costly. Protection and storage of each indi-vidual's criminal history record, anticipated to be one page, is considered -
negligible.
Implementation cost to the industry is estimated to be:'
Criminal History Requests (200,000 checks x $15.00/ check) $3000K Fingerprinting of Individuals j (200,000 fingerprint cards x 1/3 hour / card x 1
$40 00/ hour) 52680K Total Industry Implement.ation Cost $5680K
- 3. 2 Industry Goeration It is estimated that once the program is operational, all sites will generate approximately 20,000 new criminal history checks because of labor turnover at nuclear power facilities. A fee of 515.00 is payable by industry for each criminal history check. However, industry burden will M veduced by this legislation and associated regulation because it will facilitate more effi-cient conduct of background investigations by allowing licensees to have access to the nationwide criminal history data maintained by the FBI. Licensees at pre-sent are, for the most part, limited to conducting criminal history C Mcks through such limited resources as local court records, which is manpower inten-sive and costly.
3 Enclosure 2
Annual Criminal History Requests-Industry wide:
(20,000 checks x $15.00/ check) $ 300K (20,000 fingerprint cards x 1/3 hour / card x
$40.00/ hour) $ 268K
)
Total Industry Operational Cost $ 568K/ year l
- 4. IMPACT ON OTHERS Although the proposed action will affect the FBI, the annual impact is judged to be minimal inasmuch as the estimated 20,000 checks per year represent a 0.36% increase in the number of criminal history checks currently conducted by that agency. Further, industry fees will fully reimburse the FBI for this incremental burden. .
- 5. STATUTORY CONSIDERATIONS 5.1 NRC Authority The Atomic Energy Act of 1954, as amended, Section 161(b) provides authority to the Commission to prescribe regulations described to protect the public health and minimize danger to life and property.
5.2 Need for Environmental Assessment This proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(3). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.
4 Enclosure 2
5.3 Relationship to Other Existing or Proposed Regulations or Policies There are no apparent potential conflicts or overlaps with other NRC regulations or policies nor with other agencies' regulations or policies.
S.4 Paperwork Considerations There will be no significant paperwork cost associated with this action.
5 Enclosure 2
e .
10 CFR PART 73 BACKFIT ANALYSIS Requirements For Criminal History Checks I.
SUMMARY
REGULATORY ANALYSIS
- 1. Objective The objective of this proposed rule is to establish conditions for the use and control of criminal history data received from the Federal Bureau of Investigation (FBI) as part of Federally mandated criminal history checks of individuals granted unescorted access to nuclear power facilities or access to Safeguards Information by power reactor licensees (Public Law 99-399, "The Omnibus Diplomatic Security and Anti-Terrorism Act of 1986"). Licensees cannot have access to the FBI criminal history data provided by the legislation until NRC has established regulations for the control and use of the data.
- 2. Description ~0f Activity The new requirement:
(1) Implements procedures for taking of fingerprints; (2) Establishes conditions for the use of the criminal history data to include limits on redissemination and assurance that the information is used solely for its intended purpose; and (3) Provides individuals subject to fingerprinting the right to complete and correct information contained in their criminal history records prior to any final adverse action.
3.
Potential Chance In Risk To The Public From Accidental Offsite Release Of Radioactive Material This rule does not have any direct bearing on accidental offsite release.
However, it is important that individuals granted unescorted access to the reac-tor facility or access to Safeguards Information by power reactor licensees be subject to FBI cri,inal history checks to help assure that these individuals 1 Enclosure 3
u o do not have a criminal history bearing upon their personal trustworthiness and raliability. By providing increased assurance that an individual having unes-corted access to the facility or to Safeguards Information does not have a crim-inal history record indicating criminal tendencies, the likelihood of radiological sabotage from an insider and offsite release of radioactive material is reduced.
- 4. Potential Imoact On Radiological Exposure Of Facility Employees To the extent that the likelihood of radiological sabotage is reduced, the potential impact on radiological exposure of facility employees would also be reduced. Otherwise, with respect to radiological exposure, there is no impact on facility employees.
- 5. Installation And Continuing Costs Total Industry Implementation Cost $5680K Annual Operational Cost Per Site $ 7.6K
- 6. Potential Safety Impact Of Changes In Plant Or Operational Complexity Not applicable.
- 7. Estimated Resource Burden On The NRC NRC anticipates no significant non-reimbursed ccsts resulting from this rule after approval of an amendmert to the Appropriations Act permitting NRC to use fees collected for recovery of costs. Prior to that time, processing will cost the NRC approximately $2 per fingerprint card.
- 8. Potential Imoact Of Differences In Facility Tyoe Or Age No potential impact is noted of differences in facility type or age on the relevance or practicability of implementing this rule.
- 9. The rule is proposed.
II. JUSTIFICATION
- 1. Increased Protection Of The Public Health And Safety Public Law 99-399 requires the NRC to issue regulations to establish conditions for the use and control of criminal history data obtained from the 2 Enclosure 3
FBI by power reactor licensees.
Licensees cannot have access to the FBI crim-inal history data provided by the legislation until the NRC has established regulations for the control and use of the data. Since the proposed rule will allow licensees access to the FBI criminal history data, increased assurance is obtained that individuals with criminal histories impacting upon their relf-ability and trustworthiness are not permitted unescorted access to the nuclear power facility or access to Safeguards Information. By reducing tha uncertainty of trustworthiness of individuals having unescorted access, increased assurance is provided against radiological sabotage by an insider which reduces the like-lihood of offsite release of radioactive material.
- 2. Cost Implications The cost of the proposed criminal history check requirements associated with implementation is $76K per site. fiowever, industry burden will be re-duced by this legislation and associated regulation because it will facilitate more efficient conduct of background investigations by aliowing licensees to have access to the nationwide criminal history data maintained by the FBI.
Licensees at present are, for the most part, limited to conducting criminal history checks through such limited resources as local court records, which is manpower intensive and costly.
- 3. Priority And Scheduling Based upon the resulting improvement in the overall protection of the public health and safety as discussed above, and the Congressional mandate requiring NRC to issue regulations for criminal history checks of all individuals with unescorted access to a nuclear power facility, this backfit is considered to be high priority.
In addition, the proposed changes do not affect the schedules of cther l
regulatory activities ongoing at the facility.
4 Findings The Act and the proposed rule would grant access througn the NRC to FBI national criminal history information. Access to such information would substantially reduce the uncertainty concerning a person's identity and criminal history. While substantial safety improvement will not be readily evident from implementation of the rule, it is both prudent and consistent with the Commission's defense in cepth policy to minimize uncertainty 3 Enclosure 3
e .
associated with determining the trustworthiness of a person with the aforemen-tioned access. This is particularly important from the safety perspective because a person granted such access would have access to or information con-cerning access to equipment and structures that prevent and mitigate radiologi-cal releases to the environment. Sabotage of such equipment and/or structures could threaten public health and safety. NRC has emphasized human trustworthi-ness rather than equipment and/or structures because of the number of insiders granted access; the balancing of security concerns and impediments to safe facility operation, and the unpredictability of which equipment and/or structure would be degraded or failed as a result of sabotage.
Relative to~importance from the safety perspective, the Attorney General and Congress strongly supported this measure. For example, on August 31, 1983, the Assistant Attorney General, Robert A. McConnell, stated:
"As you know, we strongly support the efforts of the Commission to maintain high security standards at nuclear facilities and feel that this is a matter of utmost importance. Obviously, any security failure could have potentially devastating consequences for public safety, the environ-ment and our energy production capacity." Further, on June 25, 1984, Senator Alonse M. D' Amato (R-NY) stated: "I support this legislation because I believe that such information is vital to the protection of the public health and safety." Additionally, on May 13, 1986, Senator Jeremiah Oenton (R-Al.) stated: "Mr. Chairman, the bill which is endorsed by the Commission, the Department of Justice, and private industry, would help to ensure the safety of nuclear power plants, and thereby protect our citizens and our environment from disasters on the scale of Chernobyl.
It is urgently needed to safeguard the security of the (Jnited States and the welfare of the American people."
The above discussion and associated statements could be interpreted to support a finding of substantial improvement in the overall protection of the public health and safety. However, as the rulemaking is based upon legislative mandate, the need to make such a decision is unnecessary for the backfit analysis. .
4 Enclosure 3
DRAFT CONGRESSIONAL LETTER
Dear Mr. Chairman:
Enclosed for the information of the Subcommittee are copies of a proposed amend-
_ ment to 10 CFR Part 73 which is to be published soon in the Federal Register.
The Nuclear Regulatory Commission is proposing to add requirements for the con-trol and use of criminal history data received from the Federal Bureau of In-vestigation (FBI) as part of Federally mandated criminal history checks of.
individuals with unescorted access to nuclear power facilities or individuals granted access to Safeguards Information by power reactor licensees.
Public Law 99-399, "The Omnibus Diplomatic Security and Anti-Terrorism Act of 1986," signed by the President on August 27, 1986, requires nuclear power reactor licensees to conduct criminal history checks of individuals with unescorted access to a nuclear power facility or access to Safeguards Information through the use of FBI criminal history data. This-data is made available to the pri-
'vate sector only through Federal law. The legislation requires the NRC to issue regulations to establish conditions for the use and control of the criminal his-tory data received from the FBI. These conditions include procedures for the taking of fingerprints, limits on use and redissemination, assurance that the information is used solely for its intended purpose, and provision that indivi-duals subject to fingerprinting are provided the right to complete and correct information in their criminal history records prior to any final adverse action.
It is important that individuals granted unescorted access to nuclear power facilities or access to Safeguards Information be subject to FBI criminal history checks to help ensure that these individuals do not have a criminal history bearing upon their personal trustworthiness and reliability.
ORAFT 10/01/86 1 10 CFR PART 73 CONG LTR
. ENCLOSURE 4
I ,.
)
The proposed rule will undergo a thirty-day public coment period.
Sincerely, l John G. Davis, Director Office of Nuclear Material Safety and Safeguards
Enclosure:
Federal Register Notice cc: as apprcpriate i.
e 1 86 2 i
10 CFR PART 73 CONG LTR
7 I ,.. . .
NRC PROPOSES CRIMINAL HISTORY CHECK REQUIREMENTS FOR LICENSEES -
The Nuclear Regulatory Commission is considering amendments to its regula-tions which implements Public Law 99-399, "The Omnibus Diplomatic Security and Anti-Terrorism Act of 1986," which requires utility owners of nuclear power facilities, or applicants for licenses to operate nuclear power facilities, to obtain criminal history checks for all individuals who are to be granted unescorted access to nuclear power facilities or who have access to Safeguards Information.
The law requires that the NRC issue requirements tc establish conditions for the use and control of the criminal history data received from the FBI.
Safeguards Information is detailed information regarding licensee plans for the protection of special nuclear material and/or security measures for the physical protection and locations of plant equipment vital to safety.
As proposed, the NRC would require applicants and licensees to fingerprint each individual requiring unescorted access to the nuclear power facility or who have access to Safeguards Information. The fingerprints then would be sub-mitted, through the NRC, to the Attorney General of the United States for a criminal history check.
Licensees would be required to use information obtained as part of a criminal history records check solely for the purpose of determining an individual's suitability for unescorted access to a nuclear power facility or access to Safeguards Information.
As proposed, a final determination to deny an individual access could not be based solely upon: an arrest more than one year 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.
1 Enclosure 5
I
.,.. o
)
Further, any denial, revocation, or suspension of unescorted access to a nuclear power facility or to Safeguards Information resulting from a criminal history check would have to be based solely upon consideration that the indivi-dual has been arrested or convicted of any felony or series of lesser offenses indicating criminal tendencies.
Licensees also would be prohibited from using the information obtained as the result of a criminal history check for any purposes except those described and licensees, or any other person, would be prohibited from engaging in any activities that would infringe upon the Constitutional rights of any individual or in any activity that would discriminate against individual on the basis of race, religion, national origin, sex, or age.
The proposed rule also would establish procedures for processing of fingerprints checks, for individuals to have correct and complete information about their criminal history checks, and for protection of the information obtained as a result of the checks.
Written comments on the proposed amendments to Part 73 of the Commission's regulations should be received by (date). They should be addressed to the Secretary of the Commission, Nuclear Regulatory Commission, Washington, D.C.
20555, Attention: Docketing and Service Branch.
l I
l i
1 2 Enclosure 5
. . _ . _ , _ . _ - , -, -- . . , _ , , , . . , , -_- ..-.y. . - --