ML20207T135
| ML20207T135 | |
| Person / Time | |
|---|---|
| Issue date: | 10/31/1986 |
| From: | Burnett R NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS) |
| To: | Grimsley D NRC OFFICE OF ADMINISTRATION (ADM) |
| Shared Package | |
| ML19310E127 | List:
|
| References | |
| FRN-51FR40438, RULE-PR-73 AC27-2-23, NUDOCS 8703230238 | |
| Download: ML20207T135 (17) | |
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NMSS r/f SGRT r/f JGRT s/f KJamgochian PCT 3 14 JYardumian RBurnett WBrown HEMORANDift FOR: Donald Grimsley, Director RErickson Division of Rules and Records, ADH FROH: Robert F. Burnett, Director Division of Safeguards, fitSS
SUBJECT:
IMPLEMENTATI0il 0F COMMISSION ACTION On October 31, 1986 the Consission approved a Federal Register Notice to
- publish a proposed regulation,10 CFR 73.57, " Requirements for Criminal flistory Checks."
Please implenent the Commission's action by having the enclosed proposed regulation published in the Federal Register allowing 30 days for public comment.
Also enclosed are: letters to the Congressional committees informing them of the Commission's action, a Public Announcement for the Office of Public Affairs, and a Regulatory Analysis for the Public Document Room. A package has been prepared and submitted to the Office of Management and Budget for review and approval of the paperwork requirements.
Robert F. Burnett, Director Division of Safeguards, tilSS
Enclosures:
- 1. Federal Register Notice
- 2. Congressional Letters
- 3. Reaulatory Analysis
- 4. Public Announcement b,
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NUCLEAR REGULATORY COMMISSION 10 CFR Pa'rt 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 reliability 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."
. DATES: 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.
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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 Ofplomatic 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 Presi. dent 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
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criminal history data, assurance that the information is used solely for i
l its intended purpose, and provisions that individuals subject to finger-printing are provided the right to complete, correct, and explain informa-tion in their criainal history records prior to any final adverse action.
The Conference Report on H.R. 4151 (published in the Congressional i
t Record on August 12, 1986, p. H-5965) contains the following legislative history:
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CRIMINAL HISTORY RECORD CHECKS "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 check, 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 Commission finds is mishandling or misusing information obtained under this provision.
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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 e.
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 obtained, the arrest cannot be used as the basis for adverse action.
The conference substitute also specifies that the Commis- 8 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
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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 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 or the results of the search. Only those records necessary for administering the program i 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 licensee 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.
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Implementation of this rule will take place immediately upon its effec-tive date. The Commission will send to the ifcensee 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 comoleted, will be sent back to the licensee to the attention of the contact person.) In accordance with the Act, the fee will be utilized to offset NRC and FBI costs 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 (licensee, 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 to have unes-corted access to a nuclear power facility or to Safeguards Information 6
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with the appropriate fee attached. NRC personnel requiring unescorted access to the facility do not need to be fingerprinted by the licensee.
The Commission conducts an equivalent program for fingerprinting of NRC employees for FBI criminal history checks.
In accordance with the provisions of 9 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. I 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 tk 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 e
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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 REOUCTION ACT STATEMENT l
This proposed rule amends information collection requirements that I are subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This rule has been submitted to the Office of Management and Budget for review and approval of the paperwork requirements.
REGULATORY ~ ANALYSIS L
The Commission has prepared a regulatory analysis on this proposed regulation. The analysis exanines the costs and benefits of the alterna-l tives considered by the Commission. The analysis is available for inspec-tion in the NRC Public Occt ent Room, 1717 H Street NW., Washington, OC 20555. Single copies of the analysis may be obtained from Kristina Jamgochian, Safeguards Reactor Regulatory Requirements Section, Division of Safeguards, Office of Nuclear Material Safety and Safeguards, U.S.
Nuclear Regulatory Commission, Washingten, DC 20555, telephone (301) 427-4754.
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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
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, nuclear power plants under 10 CFR Parts E0 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 As this rulemaking is based upon a legislative mandate, the need to make a backfit decision is unnecessary.
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.
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.
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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, 5844).
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 thc 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.161i, 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)).
l 2. A new S 73.57 is added to read as follows:
S 73.57 Requirements for criminal history checks of individuals granted unescorted access to a nuclear power facility or access to Safe-guards Information by power 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.
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(2) Each 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 S 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' fingarprints, so inng as the cards were submitted by ** . The licensee will then review and use t'he information received from the FBI, and based on the provisions contained in this rule, determine either to continue to grant or to deny further unescorted access to the facility or Safeguards Information for that individual. Individuals who do not have unescorted 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.
- Insert date of final rule publication in Federal Register.
- Insert date 180 days after final rule publication in Federal Register.
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(2) The licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history l 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 through 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.
(G) A licensee shall use the information obtained as part of a criminal history records check solely for the purpose of determining an 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 Saf t-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.
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(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, DC 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 uf fingerprint cards due to illegible or incomplete cards.
(2) The Commission will review applications for criminal history checks for completeness. Any Form FO-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 i
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 application for the processing of fingerprints through corporate check, certified check, i
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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 acceptable.
(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 recora, the licensee shall inform the individual of proper procedures for revising the record or including explanation in the record. These proce-dures include direct application to the agency that contributed the ques-tioned 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 14
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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 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 afforded 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 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 re'presentative, 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 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:
(i) Upon the individual's request to redisseminate the information contained in his/her file, and (ii) If the gaining ifcensee verifies information such as name, date or birth, social security number, sex, and other applicable physical i
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(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.
Dated at Washington, D.C. this day of , 1986.
For the Nuclear Regulatory Commission.
Samuel J. Chilk, Secretary of the Commission.
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