ML20207T314

Forwards,For Signature,Commission Paper Amending 10CFR73, Physical Protection of Plants & Matls, to Implement Program for Control & Use of Criminal History Data Received by Licensees from Fbi.Crgr Briefed on 870205

ML20207T314
Person / Time
Issue date:	02/06/1987
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: ML20204G579 ML20205F299 ML20207B348 ML20207E812 ML20207S675 ML20207S684 ML20207S696 ML20207S748 ML20207S967 ML20207S972 ML20207S983 ML20207S995 ML20207T007 ML20207T022 ML20207T044 ML20207T063 ML20207T079 ML20207T095 ML20207T101 ML20207T116 ML20207T135 ML20207T149 ML20207T192 ML20207T233 ML20207T244 ML20207T257 ML20207T269 ML20207T300 ML20207T314 ML20207T337
References
FRN-51FR40438, RULE-PR-73 AC27-2-62, NUDOCS 8703230427
Download: ML20207T314 (43)

Text

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NUCLEAR REGULATORY COMMISSION WASHINGTON. D. C. 20555

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MEMORANDUM FOR: Victor Stello, Jr.

Executive Director for Operations FROM: John G. Davis Director Office of Nuclear Material Safety and Safeguards

SUBJECT:

FINAL RULE 10 CFR 73.57, " REQUIREMENTS FOR CRIMINAL HISTORY CHECKS" Enclosed for your signature is a Commission Paper amending 10 CFR Part 73,

" Physical Protection of Plants and Materials," to implement a program for the control and use of criminal history data received by licensees from 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 Committee to Review Generic Requirements (CRGR) was briefed on this final rule package on February 5,1987, and all recommendations have been acconsnodated.

The Office of Administration, the Office of Inspection and Enforcement, the Office of Nuclear Reactor Regulation, the Office of Resource Management, the Office of Information Resources Management, and the Office of Public Affairs concur in this matter. The Office of the General Counsel has no legal objection.

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John G. Davis, Director Office of Nuclear Material Safety and Safeguards 1

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Enclosure:

j Commission Paper I B703230427 870'318 PUN QR Sih40438

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For: The Commissioners From: Victor Stello, Jr.

Executive _ Director for Operations

Subject:

FINAL RULE 10 CFR 73.57,- IMPLEMENTING REQUIREMENTS FOR LICENSEE ACCESS TO FBI CRIMINAL HISTORY DATA.

Purpos'e:

To request the Commiss' ion to review the final 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.

Backcround: In mid-1983, industry's initiative for access to FBI criminal history. 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 oriefed 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 ccmpan-ion House Bill. Legislation was approved by Congress on August 12, 1986 and the President signed it into Puolic Law on August 27,-

1986 as part of Puolic Law 99-399, the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986.

Discussion: The Public Law requires tnat within six months of enactment the NRC issue this regulation to (1) implement procedures for the taking of fingerprints, (2) establish concitions for tne use of the criminal history data, including limits on redissemination and assurance that the information is used solely for its

Contact:

-<ris Jamgocnian, NMS3 42-74754

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The Commissioners 2 intended purpose, and (3) provide individuals subject to finger-printing the right to complete, correct, and explain information contained in their criminal history records prior to any final adverse determination. Full details were provided to the Commission concerning the history and development of this rule in SECY 86-300 dated October 14, 1986 which presented the rule for publication in proposed form.

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 search 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 was necessary to the Appropriations Act or the continu-ing resolution, if applicable. On October 17, 1986, tne continu-ing resolution was passed by Congress which now allows the NRC to use the collected fees for its services.

. The proposed rule was issued for public comment on November 7, 1986 (51 FR 40438) for a 30-day public comment period which expired on December 8, 1986. A total of 35 letters of comment were received on the proposed rule from utilities, utility groups, utility contractors, private citizens, and a State agency. The following is a summary of changes made to the rule in response to public comment.

Temocracy Access orovisions: The majority of respondents requested clarification in the final rule regarding temporary unescorted access during the period of time required to process and return the submitted fingerprints to the licensee for newly hired individuals, especially during refueling or maintenance outage when a nuclear power facility is in cold shutccwn. This issue is resolved in the final rule in that the provisions of the rule may be waived for devitalized areas when all or a part of a nuclear power facility is in cold shutdown, refueling, or devita-lized status. As to the broader question of granting unescorted access to temporary personnel, the rule requires that such access be based on a review of FBI criminal history data. The Commission should be aware that further discussions with the Nuclear Utility Management and Resource Committee (NUMARC) are in progress rela-tive to the treatment of temocrary personnel in connection with the access autnorization policy statement. The rule provices for the Commission to waive certain requirements of ne rule relative to temcorary employees without further rulemaking to accommodate any refinements that may ensue as a result of these discussions.

This issue is discussec in acd"tfonal cetail in tne sucolementary information section of Enclosure 1.

_ _ - - - - - - - - - ---. -- A

'e D The Commissioners 3 Transfer of Criminal History File: The provisions in the rule allow the data in an individual's criminal history file to be transferred to another licensee for consideration in granting unescorted access to the gaining licensee's facility under the following conditions: upon the individual's request to re-disseminate the information contained in his/her file, and if the gaining licensee verifies information such as name, date of birth, social security number, sex, and other applicable physical

-characteristics for identification. The proposed rule contained a third conditional provision, that if an individual was termi,-

nated in the previous 365 days, the termination nad to have been under favorable conditions. However, according to comments by several licensees, the third provision was being interpreted as requiring termination in all cases before the contents of the FBI criminal history file could be transferred. Staff analysis con-cluded that the third conditional provision was unnecessary and it has been dropped from the final rule.

Reinstatement: Comments were received requesting that the final

' rule contain provisions for reinstating an individual who is returning to the same facility and requires unescorted access.

To preclude re-fingerprinting an individual who is returning to the same nuclear power facility, whose unescorted access authori-zation under an industry run program has not been interrupted for a continuous period of more than 365 days and whose previous unescorted access was terminated under favorable conditions, the final rule allows the licensees to use their discretion in not having to re-fingerprint this individual.

Exemotions: A number of letters of comment were received j requesting acditional provisions for exemotions to the rule. The i

i staff analyzed the various situations and concluded that addi-tional~ exemptions were warranted because of either the nature or urgency of the action in wnich access is required, the individuals nave undergone equivalent clearance programs or have been certified by the NRC, or have been ordered access to Safeguards Information.

Exemptions to the rule were made accordingly.

Miscellaneous Issues: Deletion of two terms was requested. The first was a reference to protection of an individual's rights under the "First Amendment." Comments received on this provision indicated that it is recundant and unnecessary since utilities I are already pronibited from discrimination by various existing l statutes. The staff agreed and dropoec the reference.

The second deletion was a recuirement for criminal nistory records to be available "onsite" for examination oy NRC. Since several multi-site licensees cesire to maintain centralized records

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1The Commissioners' 4 at corporate headquarters and NRC inspects other records maintained there, the word "onsite" has been deleted to provide t

the requested flexibility.

Analysis of public comments for this rule also included a public response to one question in the Supplementary _Information section of the Federal Register Notice for the proposed rule for which_the Commission requested specific comment. During the internal staff review of the proposed rule, the question arose as to.whether or not fingerprinting should be required only for unescorted access to. vital areas rather than to the nuclear facility which also includes protected areas. The majority of respondents.who addressed this question supported fingerprinting of all individuals for unescorted access to the nuclear power facility. Since the staff had written the proposed rule to require fingerprinting of individuals granted unescorted access to the nuclear power facility in order to be consistent with the specific language contained in Public Law 99-399, no change to the final rule was needed.

~

Detailed _ responses to these and other requests which did not

' result in changes to the rule are contained in the comment analysis in Enclosure 1.

Rscommendations: That the Commission: .

1. Accrove the amendment as set forth in Enclosure 1 for publi-cation as a final rule in the Federal Register, effective 30 days af ter the date of publication.

2. Cartify 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 to comoly with the six-month ceadline. The staff intends 'to forward the Federal Recister

' Notice to the Secretary of the Commission for signature within 10 days of the date of this paper unless otnerwise j- instructed by the Commission.

4 Note:

3. The Regulatory Analysis wnich appears as Enclosure 2 will be olaced in the Puolic Cocument Room;

o. This rule is the tyce of action cescribed in :atagor-ical exclusion 10 C?R 51.22(c)(3). Therefore, neither l

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The Commissioners 5

.an environmental' impact statement nor an environmental

. assessment has been prepared for this ' rule.

c. The final rule contains information collection require -

ments that are subject to the Paperwork Reduction Act of 1980. These requirements were approved by the-Office of Management and Budget, approval number 3150-0002.

d. This rulemaking is based.upon legislative mandate and therefore, the need to make a backfit decision is unnecessary,

e. The appropriate Congressional Committees will be informed (Enclosure 3);

f. A public announcement will be issued when the final rule is filed with the'0ffice of the Federal Register (Enclosure 4);

g. Copies of the Federal Register Notice of final tulemak-ing will be distributed to all_ licensees by IRM/ISS/DCB.

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 r.easons for it is required by the Regulatory Flexibil-ity Act.

,_ _ _ . . , _ _ _ _ , _ . .-_ . , . _ . y

The Commissioners 6 i.

'The Office of Administration, the Office of Inspection and. Enforcement, the Office of Nuclear Reactor Regula-tion, the Office of Resource Managment, the Office of Information Resource Management, and the Office' of Public Affairs concur in this matter.~ The Office of the General Counsel h,as reviewed the rule and concurs.

Victor Stello, Jr.

Executive Of rector for Operations

Enclosures:

1. Federal Register Notice

2. Regulatory Analysis

3. Oraft Congressional Letter 4 Draft Public Announcement Commission action NLT Thursdav.' February 15,1987 will enable publication in the Federal Register by February 27, 1987, as Federally mandated.

. a-  : '

The Commissioners 6

1. The Office of Administration, the Office of Inspection and Enforcement, the Office of Nuclear Reactor Regula-tion, the Office of Resource Managment, the Office of Information Resource Management, and the Office of Public Affairs concur in this matter. The Office of the General Cou.nsel has reviewed the rule and concurs.

Victor Stello, Jr.

Executive Director for Operations

Enclosures:

1. Federal Register Notice

2. Regulatory Analysis ,

3. Draft Congressional Letter

4. Oraft Public Announcement

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NUCLEAR REGULATORY COMMISSION 10 CFR Part 73 Requirements for Criminal History Checks AGENCY: Nuclear Regulatory Commission.

ACTION: Final Rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is adding a new regula-tion to implement a program for the control and use of criminal history

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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 Dipicmatic Security and Anti-Terrorism Act of 1986."

EFFECTIVE DATE:

FOR FURTHER INFORMATICN CONTACT: Kristina Jamgochian, Office of Nuclear Material Safety and Safeguards, 0.5. Nuclear Regulatory Commission.

Washington, OC 20555, telephone (301) 427-4754 1

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[7590-01).

3 SUPPLEMENTARY INFORMATION:

Background

. 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 o'r 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. 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 pur-pose, and provisions that individuals suDject to fingerprinting are pro-vided the right to complete, correct, and explain information in their criminal history records prior to any final adverse determination.

On November 7, 1986, the NRC published the proposed rule in the Federal Register (51 FR 40438). The comment period ended on December 8, 1986.

Summary of Public Ccmment Comments were received from 35 respondents comprised of 25 power reactor licensees, three industry groups, three private citizens, two con-tractors, one engineering firm, and one State agency. Copies of comment letters are availaole for public insoection and copying for a fee at the NRC Public Document Room at 1717 H Street NW., Washington, DC.

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The proposed rule has been modified in response to comments received,-

as- appropriate, and is being published in final form effective on the date of publication of this notice. A summary of the public comments, along with their resolution, follows.

The comments have been placed in the following categories:

1. facility Access vs. Vital Area Access

2. Grandfathering

3. Temporary Unescorted Access ---

4. Contractors, Suppliers, and Manufacturers

5. Challenge of Information

6. Transfer of Criminal History File-

7. Miscellaneous

1. Facility Access vs. Vital Area Access. During the internal staff review of the proposed rule, a question arose as to whether or not finger-printing shoulo be required only for unescorted access to vital areas rather than to the nuclear power facility which also incluces protected areas. To be consistent with the legislative intent and specific language of Public Law 99-399, the staf f had written the proposed rule to require fingerprinting of individuals grantad unescortec access to the nuclear power facility. Additionally, during the public comment period on the procosed Access Autho'rization Rule, licensee and industry groups commented that it was more cost effective to run a single access authorization pro-gram, escecially since the majority of emoloyees needing access to the protactao 3rea also reouired access authorization to one or more vital areas. In the interest of detarmining whether this view still prevailed, 1

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[7590-01] 'i specific response was requested during the public comment period to the following question: should fingerprinting be required of indi'viduals for unescorted access to vital areas only or to the nuclear power facility?

In response to the question, the following responses were received: 13 commenters recommended fingerprinting all individuals granted unescorted -

access to the nuclear power facility, 2 commenters recommended finger-printing for vital area unescorted access only, and 2 commenters felt that the decision should be left with.the licensee. A majority of the commenters who felt that it would be an administrative burden to finger-print for unescorted access to vital areas only, based their conclusions on the fact that it would be inefficient to establish two screening programs since .it is industry's experience was that in over 70% of the **

cases, those personnel authorized unescorted access to protected areas of the plant also require access to vital areas of'the plant, and that an effective security program requires fingerprinting of all individuals with unascorted access to the plant.

Accordingly, as a single level of access authorization enhances security, reduces the administrative burden, promotes efficiencies in acministering the program, and as most licensees currently have one access authorization program for unescorted access to both protected and vital areas of the plant, fingerprinting will be required of all indi-viduals requiring unescorted access to the nuclear power facility, which is to both the protected area and vital areas of the plant.

2. Grindfatherino. Eignteen respondents recommended tnat a provi-sion be incorporated for grandfatnering individuals cermanently emoloyed oy a licensee witn a stipulated minimum period of acoloyment. The NRC J

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[7590-01]

staff recognizes that in~many of these cases individuals have been screened under an industry run access authorization program which may also include behavioral observation. The staff also recognizes the administrative burden and cost associated with fingerprinting all current employees requiring unescorted access to the nuclear power facility.

However, Public Law 99-399 mandates that "The Nuclear Regulatory Commission . .. shall require each licensee . .. to fingerprint each indi-vidual who is permitted unescorted access to the facility or is permitted dCCess to Safeguards Information under Section 147." Commenters have pointed out that the Public Law states: "The Commission, by rule, may relieve persons from the obligations imposed by this section, upon speci-fied terms, conditions, and periods, ..." However, in "The Report of the Committee on the Judiciary United States Senate on S.274 As Amended,"

September, 1985, in VII. Section-by-Section Analysis, it is stated that "The Committee is of the view that this exception be used only in extra-ordinary circumstances."

Grandfathering currently employed individuals witn ur. escorted access is not considered to be an extraordinary circumstance and does not meet the intent of Congress. Accordingly, grandfathering incividuals cur-rently employed on the effective cate of final rule publication will not be permitted.

3. Temocracy Workers. The majority of resconcents requested clari-fication in the final rule regaroing temporary unescortec access during the period of time reouf rea to crocess and return t.9e sucmitted finger-prints to the licensee for newly hired indivicuals, especially curing refueling or maintenance outage wnen a nuclear cower f acility is in cold 5

[7590-01] -

shutdown. This issue is resolved in the final rule in that the provisions of the rule may be waived for devitalized areas when all or a part of a nuclear power facility is in cold shutdown, refueling, or devitalized status.

This is a'llowable due to the fact that prior to startup, a thorough visual inspection of the devitalized area is made by knowledge-able plant personnel to identify signs of tampering or attempted sabotage, and appropriate safety startup procedures are followed to assure that all

. operating and safety systems are functioning normally.

In addition, a number of respondents requested clarification in the final rule concerning the status of temporary workers during unexpected ~

'eouipment failures or maintenance outages. Commenters noted that if a facility has a sudden, unexpected equipment failure, a number of temporary personnel may be needed immediately to fix the problem. Escorting a large number of people during this time is impractical and unrealistic because of the potential for increased radiation exposure which would be in con-flict with the ALARA program. Also, the estimated 25-day turnaround time for fingerprint verification could delay a plant from starting up as scheduled. The broader issue addressing requirements for granting tempo-rary access is currently under NRC management review. Pending resolution of this broader issue it is premature to define the fingerprint require-ments associated with temporary access. Accordingly, a statement has been incluced in Section 73.57(b)(2) stating that upon further notice to licensees and without further rulemaking the Commission may waive certain requirements of tne rule on a temporary basis for temocrary workers.

A. Contractors. Manufacturers, anc Succliers. A number of commenters felt that recuiring criminal history checxs of contractors, manuf acturers, 4

[7590-01]

and suppliers for access to Safeguards Information was unreasonable, as it was difficult for licensees to directly control whether employees of contractors, manufacturers, and suppliers requiring access to Safeguards Information were, in fact, fingerprinted. The NRC staff recognizes the difficulty for licensees in controlling who is actually.having access to Safeguards Information utilized by contractors, manufacturers, and vendors.

However, the staff believes that the magnitude of the problem is not as great as perceived and can be'signif'cantly diminished through the proper use of ~information management techniques. Licensees and applicants may find it more appropriate to segregate general or nonsensitive information into unprotected appendices or attachments. Initial requests for bids or proposals and original design sketches, for example, would probably not qualify as Safeguards Information. The NRC's NUREG-0794, " Protection of Unclassified Safeguards Information" provides criteria and guidance to assist licensees and other persons who possess Safeguards Information in' establishing an information protection system that satisfies the require-ments of 10 CFR 73.21.

In adcition, a commenter expressec concern for tne privacy of the personal information anc felt that the control of dissemination of this information would be better served by collecting and maintaining the specific information in an individual's criminal history record check file with the individual's actual employer, rather than having the infor-mation held by other organizations. The staff recognizes tne merit in this comment but the Public Law only allows for dissemination of the information contained in an indivicual's criminal history record to and between licensees.

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[7590-01]

Commenters requested that the rule allow for these non-licensees to directly submit fingerprint cards to the NRC and maintain the files as

' the 1icensees , feel that they cannot directly control every contractor,-

manufacturer, and supplier employee who designs, assembles, or operates all equipment which falls under the definition of Safeguards Information in 10 CFR 73.21. Respondents also felt that there should be a provision allowing utilities to pass on criminal history data to the agency that is completing the remainder of the background investigation for unescorted access so that'the complete file on an individual would be stored in one place and would be much more accessible for audit by the utility and the NRC.

According to the FBI, the information contained in a criminal his-tory record may not be disseminated to anyone other than the licensee.

Licensees may hire a contractor to actually do the initial fingerprinting of individuals if they so wish, but that would be the extent of involve-ment on the contractor's part for criminal history record checks.

A provision fcr transferring the data from one licensee to another only upon the individual's request is contained in the rule to preclude excessive fingerprinting, especially for contractors, suppliers and manufacturers. The licensee may not disclose the record or personal information collected and maintained to persons other than the sucject individual, his/her representative, or those who have a need to have access to the information in performing assigned duties in the process of granting or cenying unescorted access to the nuclear power facility or access to Safeguards Information.

5. Challence of Information. A numcer of commenters recuested clarification on whetner an individual who chooses to correct, comclete, 3

[7590-01I or explain an alleged deficiency in his/her criminal history record should be granted or denied unescorted access while the challenge of information is-in progress. The decision to grant oa deny access while a challenge is being processed is at the discretion of and is the responsibility of the licensee. This is a judgement decision by the licensee and is depen-dent on the needs of the situation, the availability and cost of escort, prudence, security considerations, and other factors perceived by the licensee.

Respondents also requested specific definition of the two terms

" final adverse action" and " reasonable amount .of time" contained in the proposed rule under 573.57(e)(2). Public Law 99-399, Section (c)(3),

states that the Commission shall prescribe regulations "to provide each individual subject to fingerprinting under this section with the right to complete, correct, and explain information contained in the criminal history records prior to any final adverse determination". The term

" reasonable amount of time" was added to the proposed rule to indicate that to be workable,- some practical limits were necessary on the time for the challenge to take place. Accordingly, the staff has revised the rule to state: "An individual who is challenging the information in his/her file must initiate action according to the procedures in tnis section within a licensee specified time frame after tne record being made avail-able for his/her review. The licensee may make a final adverse determina-tion, if applicable, only uaan receipt of the FBI's confirmation or correction of the record." The FBI has indicated chat once they receive a formal cnallenge of the record, a re-cneck is comoleted within soproxi-tately 3-4 weeks and the information is then returned to tne licensee.

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Therefore, other than the licensee established time frame, the time involved could average in the order of six weeks, given an estimated .one-month FBI resolution time and allowance for the information to be mailed back and forth. The licensee may not make a final adverse determination, such as termination of the individual's employment, if applicable, until the licensee receives confirmation or correction of the challenged dispo-sition of an arrest.

6. Transfer of Criminal History File. A number of comments were received concerning the transfer of access authorization. In analyzing the comments, it appears that the respondents were confusing the require-ments of FBI criminal history checks with the broader requirements for-unescorted access authorization. It is noted that this rule is intanded to explicitly address the requirements associated with the FBI criminal history data which is only one element of a background investigation par-tion of an industry-run access autnorization program. The provisions in

' this rule allow the data in an individual's criminal history file to ce transferred to another licensee far consideration in granting unescorted access to the gaining licensee's facility under two conditions: upon the individual's recuest to're-disseminate the information contained in his/

her file, and if, for identification purposes, the gaining licensee veri-fies information such as name, date of birth, social security number, sex, and other applicable physical characteristics. The proposed rule contained a third conditional provision: :nat if an individual was term-inatec in the previous 365 days, the termination had to nave been uncer favorable conditions. However, according to comments by several licensees, 4

the third orovision sas being interorsted as recuiring termination in all l

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f cases before the contents of the FBI criminal history file could be trans-ferred. That is, that the individual had to also have been terminated before his/her criminal history file could be transferred. That was not the intent. Staff analysis has concluded that the third conditional pro-vision was unnecessary and accordingly, it has been dropped from the final rule.

In addition, for clarification of Section 73.57(f)(5), if the data contained in an individual's criminal history file needs to be transferred to another licensee, a copy of the data should be sent to gaining licens-ees. . The original file should be retained by the original licensee for a one year retention period upon the individual's termination of employment or dental of unescorted, access or access to Safeguards Information at that facility.

Comments were also received requesting that the final rule contain provisions for reinstating an individual who is returning to the same utility and requires unescorted access. To preclude re-fingerprinting an individual who is returning to the same utility, the final rule allows the licensees to use their discretion in not having to re-fingerprint this individual under the following conditions: if the individual's unescorted access authorization under an industry-run program has not been interrupted for a continuous period of more than 365 days and the individual's previous unescorted access was terminated under favorable conditions.

7. Miscellaneous Issues. Several miscellaneous issues wnich did not fit the crevious categories ere raised by resconcents. These are adcressed celow, 11 l

[7590-01]

The proposed rule required criminal history records to be available' onsite for examination by NRC. Several multi-site licensees reported that they maintain centralized records at corporate headquarters and contended that such a requirement would require substantial duplication of facilities and records. Accordingly, the word "onsite" has been deleted from the final rule to allow these licensees the requested .

flexibility.

i Section 73.57(c)(2) of the proposed rule prohibited a licensee from using the FBI information in a manner that would infringe upon an individ-l

, ual's rights under the First Amendment. Comments received on this provi-sion indicated that it is redundant and unnecessary since utilities are

. already prohibited from discriminating in employment on the basis of race, religion, national origin, sex, or age by Title VII of the Civil Rights Act of 1964 and by the Age Discrimination in Employment Act. Also, utili-ties which are Government contractors are required to sign an Equal i

0poortunity Clause in order to assure nondiscrimination for the same reasons. It was the staff's intent to assure .that individuals subject to fingerprinting are protected from misuse of the criminal history records as mandated by Public Law 99-399. The Conference Report on H.R. 4151 (published in the Congressional Record on August 12, 1986, p. H-5965) contained legislative history which stated tnat "... Misuse would include, for example, use of the records to discriminate against minorities or to cenalize union memoers or wnistleblowers or to accomolish any other unlaw-ful purpose." Ccmmenters pointed out tnat individuals are protected against "whistleblowers" by Section 210 of the Energy Reorgani:ation Act l

12

[7590-01]-

of 1974 and union members are protected under the National Labor Relations Act. Finally, an' individual's rignt to privacy is protected by the limi-tations on re-dissemination of personal information in the rule.

Accordingly, staff agrees that individuals subject to fingerprinting are adequately protected under existing statutes and rules and therefore, the broad reference to the First Amendmen,t has been deleted from the final rule.

Commenters expressed concern over limitations contained in Section 73.57 (c)(i) and (ii) which prohibit a licensee from basing a final de-termination to deny an individual unescorted access to a nuclear power facility or access to Safeguards Information solely upon an arrest more than one year old for wnich there is no information of the disposition of the case, or upon an arrest that resulted in dismissal on the charge or an acquittal.

Commenters stated that it is not uncommon to find a case that had not gone to trial within one year of the date of the arrest. In situations like this, commenters felt that the licensee would be unable to taxe action if attorneys were employing tactics to delay or avoid trial, or where felony cases were being delayed for various other reasons. Like-dise, concern was expressed that career criminals could manipulate the criminal justice system with plea cargaining arrangements and appear to nave no serious convictions even though they continuously violate the law.

Commenters felt that licensee should be allowed to grant or deny unescorted access to their facilities or access to Safeguards Information based on tneir own judgement since an incividual acquitted of a crime may still have acmittecly engaged in conduct wnicn should warrant the deni.31 of unescorted access. In response to the ccaments received on tnis 13

[7590-d1]

provision, the staff reiterates that FBI criminal history data received by the licensee is but one element of background ?qvestigations of indus-try run access authorization programs. The information received by the licensee on an individual's arrest record can be used as a basis for devel-oping additional information which may be used in the determination to grant or deny access. For example, developed character references could confirm that the individual's behavior, as reflected in the arrest record, is not considered desirable by the licensee as suitable for the job.

In analyzing the public comments, the staff felt that the respondents were misinterpreting the word " solely" in the context of the provision.

The term " solely" was rever intended to imply that the information from the FBI was the only data to be used in determining whether to grant or deny unescorted access or access to Safeguards Informatioq but rather to preclude its misuse (i.e. , for discrimination purposes). The results of other elements of industry-run access authorization programs are also taken into account in making the decision. However, if all results are favorable except for an arrest without a disposition on an individual's criminal history record, the licensee cannot deny unescorted access or access to Safeguards Information because of the arrest itself, as stipu-lated in Public Law 99-399.

A numoer of letters of comment were received requesting additional orovisions for exemptions to the rule. The staff has analyzed the various situations and concluded that certain axemptions are warranted because of the nature or urgency of the action in whicn access is required, tne inci-viduals either have uncergone equivalent clearance programs or have been certified by the NRC, or have been ordered access to Safeguards Information 14 1

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' pursuant to 10 CFR 2.744 The exemptions' from the provisions of the -

rule are contained in. paragraph (b)(2) oTthe rble.

Additionally, as a

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Federal agency, Tennessee Valley Authority (T'iA) has long submitted G '

of Q criminal history requests to th'e FBI'in accordance with TVA's security

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p, suitability investigations conducted undar Executive Order No.10450. s 3

. .' h I.

This program is equivalent to the program'propo;ed to the rule. There-ore, TVA will be allowed to continue its ' program of submitting finger-print cards directly to the FBI. .

i y Several respondents request y that the NRC bill licensees on a L

monthly basis for fingerprint cads submitted to the FBI through ths NRC.

Analysis by the staff indicatedthot developing and implementing billing peccedures, monitoring receip'. of payment, calculating interest on late payments, sending notices of nonpayment and other administrative activ-itieswouldincreasef.;ownorescimatedagencypersonnelandinterest costs to the Government.

4 NRC has e, responsib~ility under t.;e Deficit Reduction Act of 1984 and 31 CFR 206 to develop a collection mechanism thatixpedites crecit and availability of monies to the U.S. Treasury. _

, s , ,

, Accorcingly, implementation of a bil?.ing and collection systam, wnich i '

unduly increases Mosts to the Goverrment, solely for the benefit of licensees. is not approoriate.

I The Supplementary.Information of the proposea rule suggested that a forsarding letter transmitting the fingerprint. cards contain the facility cocket number in addi~ tion to other recuested i.nformation. Likewise, the facility docket numoer needs to ce included on each indifidual finger-print card in the soace marked " Reason Fingerprinted." It was requested W - i t ,,

by two multi-clant licensees that the requirement for accket numoers se i

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. deleted and that the facility name be used in lieu of the docket number to preclude administrative problems. To accommodate this request, licensees may include the facility name in addition to the docket number on the forms.

Although the rule is effective 30 days after publicationin the

, Federal Register, licensees wishing to submit fingerprint cards to;tn'e, FBI through the NRC may do so during this time, and all cards received =

will be processed. 3 ENVIRONMENTAL. IMPACT: CATEGORICAL' EXCLUSION The NRC has determined that this rule is the type of action described t.

in categorical exclusion 10 CFR 51.22(c)(3). Therefore neither an environ-mental impact' statement nor an environmental' assessment has'been prepared for this rule.

PAPERWORK REDUCTION ACT STATEMENT ,

This final rule amends information collection requiqements cnat are subject 'to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

These requirements were approved by the Office of Management and Budget approval number 3150-0002.

REGULATORY ANALYSIS The NRC staff has precared a regulatory analysi.s on tnis final regu-i ation. The analysis examines tne costs and benefits of the alternatives i

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[7590-01]

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'" 4 7" 2

'N( l considered by the Commission. Thh analysis ~is available for inspection

'is the NRC Public Document Room,il717 H; Street NW., Washington, DC 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, Washington, DC 20555, telephone (301) 427-4754.

REGULATORY FLEXIBILITY. CERTIFICATION 1

1 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 signifi ar.1 economic i,mpact upor. a ssbstantial number of 4

small entities. The rule affects. licensees who operate nuclear power plants.under 10 CFR Parts 50 and 73. The companies that own these plants

~

i do not-fall within the scope,of the definition of "small entities"'se't forth in S 605(b) offthe Regulatory. Flexibility Act of 1980, or within

'( the cefinition of Small Business Size Standards set out in regulations issued by the Small Business Administration in 13 CFR Part 121.

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L BACKFIT ANALYSIS As tnis rulemaking is based upon a legislative mandate, the need to make a backfit decision is unnecessary.

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. 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 adopting 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, 38 Stat. 1242, as amended, 1245 (42 U.S.C. 5841, 5844).

Section 73.37(f) 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. 605, Puo. L.99-399, and Section 161i, 68 Stat. 9481 (42 U.3.C. 2201).

For the purposes of sec. 223, 68 Stat. 958, as amenaed (42 U.S.C.

2273); SS 73.21, 73.37(g), and 73.55 are issued under sec.161b, 63 Stat. 948, as amenced (42 U.S.C. 2201(b)); ds 73.20, 73.24, 73.25, 73.25, 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 is 73.20(c)(1), 73.24(b)(1), 73.25(b)(3), (h)(5), anc (k)(a), 73.27(a) ana (b), 73.37(f), 73.40(b) anc (c), 73.46(g)(5) anc (h)(2), 73.50(g)(2),

18

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., [7590-013 (3)(111)(8), and (h),T73.55(h)(2) and (4)(fii)(B), 73.70, 73.71, 73.72

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are issued under sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).

2. A new $ 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.

(2) ~Each applicant for a li, cense-to operate a nuclear power reactor pursuant to Part 50 of this chapter shall submit fingerprint cards for those individuals who have or will 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) Except those listed in paragraph (b)(2) of this section, each licensee subject to the provisions of this section shall fingerprint each individual who is permitted unescorted access to the nuclear power facil-ity 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 nistory check on the individuals' fingerprints, so long as the cards were submitted by The licensee will then review and use the information 19

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[7590-01]

received from the Federal Bureau of Investigation (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 Infor-mation-for that_ individual. Individuals who do.not have unescorted access or access to Safeguards Information after ~ shall be finger-printed by the licensee ~ and the results of the criminal history records check shall be used prior to making a determination for granting unescorted access to the nuclear power facility or access to Safeguards Information.

(2) The requirements of this section do not apply to the following:

(i) For unescorted access to the nuclear power facility or for access to Safeguards Information: NRC employees and NRC contractors on official agency business; individuals responding to a site emergency in accordance with the provisions of S 73.55(a); a representative of the International Atomic Energy Agency (IAEA) engaged in activities associated with the U.S. IAEA Safeguards Agreement at designated facilities who has been certified by the NRC; law enforcement personnel acting in an official capacity; State or local government employees who have had equivalent reviews of FBI criminal history data; and individuals employed at a facil-ity who possess "Q" or "L" clearances or possess another active government granted security clearance, i.e. , Top Secret, Secret, or Confidential; (ii) For access to Safeguards Information only: employees of other agencies of the United States Government; a member of a duly authorized committee of the Congress; the Governor of a State or his/her designated representative; individuals to whom disclosure is ordered pursuant to S 2.744(e);

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(iii)- Any licensee currently processing criminal history requests-through the FBI. pursuant to Executive Order No. 10450 need not also submit such requests to the NRC under this section; and (iv) When a nuclear power plant is in cold shutdown during refueling or major maintenance, the requirements of this rule may be waived for devitalized; areas.

(v) Upon further notice to licensees and without further rulemaking, the Commission may waive certain requirements of this section on a temporary basis for . temporary workers.

(3) The licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history record, and inform the individual of proper procedures for revising the record or including explanation in the record.

(4) Fingerprinting is not required if the utility is reinstating the unescorted access to the nuclear power facility or access to Safeguards Information granted an individual if: .

(i) The individual returns to the same nuclear power utility that granted access and such access has not been interruoted for a continuous period of more than 365 days; and (ii) The previous access was terminated under favorable conditions.

(5) 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 sucolier has been granted unescorted access to a nuclear power facility or to Safeguards Information oy anotner licensee, based in part on a criminal history records check under this section. The criminal history checx file may be transferred to the gaining licensee in accordance witn the provisions of caragrach (f)(3) of this section.

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[7590-01]

'(6) . All fingerprints obtained by the licensee under this section must be submitted to the Attorney General of the United States through the Commission.

'(7) 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 or access to Safeguards Information. '

(8) A licensee shall use the information obtained as part of a crim-inal history records check solely for the purpose of determining an indi-vidual'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 on the basis of information received from the FBI involving:

(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 crimina?

history check obtained u11 der this section in any way which would discrimi-nate 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 one completed, legible standard fingerprint card (Form FD-258, ORIMONRC000Z, NRC Division of Security, Bethesca, MD) which may be obtained 22

__. . _ _ _ _ _ ~ _ - . _ _ _ _ __ _

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[7590-01]

from the NRC for each indivioual' 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 of fingerprint cards due to illegible or incomplete cards.

(2) The Commission 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 or a note is attached indicating that the previously submitted card had been incomplete.

(3) Fees for the processing of fingerprint checks are due upon application.

Licensees shall submit payment with the application for the processing of fingerprints througn corporate check, certified check, cashier's check, or money order made payable to "U.S. NRC," at the rate of S15.00 for each card. Comnined payment for multiple applications is acceptable.

(4) The Commission will forward to the suomitting licensee all data received fecm tne FBI as a result of the licensee's application (s) for criminal nistory checks, including the incividual's fingercrint card.

(e) Rignt to correct and comclete information.

(1) Prior to ary final adverse determination, the licensee snall make availaole to tne incivicual the contents or records obtainea from 23

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the FBI for the purpose of assuring correct and complete information.

Confirmation of receipt by the individual of this notification must be maintained by the licensee for a period of 1 year 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 individual may initiate challenge procedures. These proca-dures include direct application by the individual challenging the record to the agency that contributed the questioned information or direct chal-i I

le~nge 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 FBI then forwards the challenge to the agency that sucmitted the data requesting that agency to verify cr correct the cnallenged entry. Upon receipt of an official- i communication directly from the agency that contributed the original information, the FBI Identification Division makes any changes necessary in accordance with the information supolied by that agency. An individual who is challenging the information in his/her file must initiate action according to the procedures in this section within a licensee specified time frame after the record being made available for his/her review. The licensee may make a final adverse determination cased upon the criminal history record, if acclicable, only upon receipt of the FBI's confirmation or correction of the record.

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(f) Protection ~of information.

(1)- Each licensee who obtains a criminal history record on an indi-vidual 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 informa-tion collected and maintained to persons other than the subject individ-ual, his/her representative, or to those who have a need to have access - - - -

to the information in performing assigned duties in the process of grant-ing or denying unescorted access to the nuclear power facility or access to Safeguards Information.

No individual authorized to have access to the information may re-disseminate the information to any other individual 4

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 written request to re-disseminate the information contained in his/her file; and (ii) The gaining licensee verifies information such as name, date of birth, social security numoer, sex, and other applicaole physical cnarac-teristics for identification.

(J) The licensee shall make criminal history records obtained under this section available for ex' amination by an authorized representative of the NRC to cetermine compliance with the regulations and laws.

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(5) The licensee shall retain all fingerprint cards and criminal history records received from the FBI, or a copy if the individual's file had been transferred, on an individual (including data indicating no record) for 1 year after termination or denial of. unescorted access to the nuclear power facility or access to Safeguards Information.

Dated at Washington, DC, this day of , 1987.

For the Nuclear-Regulatory Commission.

Samuel J. Chilk, Secretary of the Commission.

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REGULATORY ANALYSIS REQUIREMENTS FOR CRIMINAL HISTORY CHECXS 10 CFR PART 73

.l. ACTION - PROPOSED RULE 1.1 Description The Commission is adding a new requirement,10 CFR 73.57, for the control and use of criminal history data received from the Federal Bureau of Investiga-tion (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 estaolish 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 re-cissemination, 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 orf or to any final adverse action. It is imoortant tnat individuals granted unescorteo access to nuclear power facilities or access to Safeguards Information be subject to FBI criminal history enecks to nelo assure tnat tnese indiviouals do not have a criminal history oearing uoon their cersonal trustwortniness anc reliability.

.' Enclosure 2

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2. IMPACT ON THE NRC

- 2.1 Develcomental Imoact NRC anticipates no significant developmental cost resulting from this proposed rule.

2. 2 Imolementation Imoact 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 utili-ties and the FBI in the transmittal of industry reque,sts and FBI findings.

Resource impact is estimated to be 1.0 FTE for project management and adminis-tration, 0.32 FTE for inspection module development, and 0.2 FTE for task order development.

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 was necessary to the Appropriations Act or the continuing resolution, if applicable. On October 17, 1986, the continuing resolution was passed by Congress which now allows the NRC to use the collected fees for its services.

2.3 Ocerational 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 particioation in processing these checks and the exoectation of reimbursement.

Consequently, no significant operational costs are envisioned for the NRC. The crimary resource impact is estinated to be 1.0 FTE for project management and administration. Inspection ef fort resources are accountec for as part of the crocosed Policy Statement for Access Authori:ation Program at Nuc! ear Dower Plants.

2 Enclosure 2

p cf '. ,

3. IMPACT ON INDUSTRY 3.1 Industry Implementation L

l- The impact on industry implementation will occur in the area of cost of I

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 are licensed the affected individuals yould be subfect to FBI criminal history checks as well. However, this would be in lieu ct 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 and would be included with cost associate"d with implementation and cperation of an industry run access authorization program.

Implementation cost to the industry is estimated to be:

Criminal History Requests (200,000 checks x $15.00/ check) 53000K Fingerprinting of Individuals (200,000 fingerprint cards x 1/3 hour / card x

$40.00/ hour) 32680K Total Industry Implementation Cost $5680K 3.2 Industry Ooeration 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 $15.00 is payable by industry for each criminal history check. However, industry burden will be reduced by this legislation anc associated regulation because it will facilitate more effi-cient concuct of background investigations by allowing licensees to nave access to tne nationwice criminal history data maintained by the FBI. Licensees at pre-sent are, for the most cart, limited to concucting criminal history checks througn sucn limitec resources as local court recorcs, whicn is manocwer inten-slee and costly.

3 Enclosure 2

~

-W ..i Annual Criminal History Requests-Industry wide:

(20.000 checks x 515.00/ check) $ 300K (20,000 fingerprint cards x 1/3 hour / card x

$40.00/ hour) $ 268K Total Industry Operational Cost S 568K/ year

-4 IMPACT ON OTHERS Although this action will affect the FBI, the annual impact is judged to r

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 '

i agency.

Further, industry fees will fully reimburse the FBI for this incremen-j tal burden.,

5. STATUTORY CONSIDERATIONS i I

L l

i.

5.1 NRC Authority The Atomic Energy Act of_1954, as amended, Section 161(b) provides authority to the Commission to prescribe regulations cescribed to protect the public health and minimize danger to life and property.

5.2 Need for Environmental Assessment This 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.

5.3 Relationshio to Other Existino or Drocesed Reculations or Dolicies There are no apparent potential confif ets or overlaos sitn other NRC regulations or policies nor uitn otner agencies' regulations or colicies, i

l Enclosure 2 m

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9 5.4 Paperwork Considerations l There will be no significant paperwork cost associated with this action.

t 9

0 5 Enclosure 2

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ORAFT CONGRESSIONAL LETTER

Dear Mr. Chairman:

Enclosed for the information of the Subcommittee are copies of an amendment to  !

10 CFR Part 73 which is to be published soon in the Federal Register.

The Nuclear Regulatory Commission is adding requirements for the control and use of criminal history data received from the Federal Bureau of Investigation (FBI) as part of Federally mandated criminal history checxs 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 Informa-tion through the use of FBI criminal history data. 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 proce-dures for the taking of fingerprints, limits on use and re-dissemination, assurance that tne information is used solely for its intended purpose, and orovision that individuals subject to fingerprinting are provided the right to ccmolete, correct, and explain information in their criminal history records prior to any final adverse determination. It is imcortant

• hat individuals granted unescorteo access to nuclear power facilities or access to Safeguarcs Information be subject to FBI criminal history enecks to help ensure that these indivicuais do not have a criminal history bearing ucon theie personal trust-vorthiness anc reifacility.

ENCLOSURE 3

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'The proposed rule was published on November 7,1986 for a 30-day public comment -

period.

The Nuclear Regulatory Commission received 35 letters of comment which were considered in .the revision of the proposed rule for final publication.

Sincerely, John G. Davis, Director Office of Nuclear Material Safety and Safeguards'

Enclosure:

Federal Register Notice cc: as appropriate 2 ENCLOSURE 3

NRC REQUIRES CRIMINAL HISTORY CHECK REQUIREMENTS FOR LICENSEES The Nuclear Regulatory Commission is amending its regulations to implement Public Law 99-399, "The Omnibus Diplomatic Security and Anti-Terrorism Act of 1986."

The Act requires utility owners of nuclear power facilities, or applicants for licenses to operate nuclear power facilitie to obtain criminal history checks for all individuals who are to be grantt mascorted access to nuclear power facilities or who have access to Safegum.'ds Information. The law requires that the NRC issue requirements to establish conditions for the use and control of the criminal history data received from the FBI.

Safeguards Information is detailed information regardi.iy licensee plans for the protection of special nuclear material and/or security measures fom the physical protection and locations of plant equipment vital to safety.

The NRC is requiring 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 submitted, through the NRC, to the Attorney General of the United States for a criminal history check.

Licensees are 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.

A final determination to deny an individual access could not be based solely ucon an arrest more than one year olc for nich there is no informa-tion of the disoosition of the case; or an arrest that resulted in dismissal of the enarge or an accuittal.

4 Licensees are also archibited from using the information octained as the result of a criminal history eneck for any purposes e.xcect those descriced and 1

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The proposed rule was published on November 7,1986 for a 30-day public comment period.

The Nuclear Regulatory Commission received 35 letters of comment which were considered in the revision of the proposed rule for final publication.

Sincerely, John G. Davis, Director Office of Nuclear Material Safety and Safeguards

Enclosure:

Federal Register Notice cc: as appropriate t

2 ENCLOSURE 3

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-g s g licensees, or any other person, would be prohibited from engaging in any activi-

. ties that would discriminate against individuals on the basis of race, religion, national origin, sex, or age.

The rule also establishes procedures for processing of fingerprint checks, for individuals to correct, complete, and explain information about their criminal history checks, and for protection of the information obtained as a result of the checks. .

r The amendments to Part 73 of the Commission's regulations are effective on l

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