ML20207T337
| ML20207T337 | |
| Person / Time | |
|---|---|
| Issue date: | 02/27/1987 |
| 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 AC27-2-64, NUDOCS 8703230453 | |
| Download: ML20207T337 (12) | |
Text
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/- A cz7-z, IMPLEMENTATION OF COMM. ACTION
~
FEB 27 y MEMORANDUM FOR: Donnie H. Grimsley, Director DISTRIBUTION:
Division of Rules and Records, ADM NMSS r/f SGRT r/f & s/f FROM: Robert F. Burnett, Director oKdamgochian Division of Safeguards, NMSS JYardumian RBurnett
SUBJECT:
IMPLEMENTATION OF COMMISSION ACTION WBrown RErickson On February 26, 1987 the Commission approved a Federal Register notice to publish a final regulation,10 CFR 73.57, " Requirements for Criminal History Checks."
Please implement the Commission's action by having the enclosed final regulation published in the Federal Register to be effective 30 days after publication. The following dates will also have to be added to the Federal Register notice:
- p. 20, 1st blank: (date 30 days after publication)
- p. 20, 2nd blank: (date 210 days after publication)
- p. 20, 3rd blank: (date 30 days after publication)
Also enclosed are: letters to the Congressional committees informing them of the Commission's action, a Public Announcement for the'0ffice of Public Affairs, and a Regulatory Analysis for the Public Document Room.
.0Y Robert F. Burnett, Director Division of Safeguards, NMSS
Enclosures:
- 1. Federal Register Notice
- 2. Congressional Letters
- 3. Regulatory Analysis
- 4. Public Announcement 8703230453 870318
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@~' A i F'i R M A'T i 0 N FYI: @D V Q KJamgochian RESPONSE SHEET TRehm T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION FROM: COMMISSIONER CARR
SUBJECT:
SECY-87 FINAL RULE 10 CFR 73.57, IMPLEMENTING REQUIREMENTS FOR LICENSEE ACCESS TO FBI CRIMINAL HISTORY DATA-APPROVE 8 2l~b O DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS:
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NRC-SECY FORM DEC. 80
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.. . . .. Roe t AFFIRMATION FYI: HThompson RESPONSE SHEET TRehm T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION FROM: C!'t.IPfM! ZECl! .-
SUBJECT:
SECY-87 FINAL RULE 10 CFR 73.57, IMPLEMENTING REQUIREMENTS FOR LICENSEE ACCESS TO FBI CRIMINAL HISTORY DATA APPROVED w/ modification DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS:
.' The rule should explicitly state the time frame permitted for challenging procedures.
I would prefer to keep the words "First Amendment" in the final rule. --
YES N_0_ .
%, j Entered on "AS" / / Sl6NAIdEE ZM- 87 UAlt 4 SECRETARIAT NOTE: PLEASE ALSO RESPOND TO.AND/OR COMMENT ON OGC/0PE MEMORANDUM IF ONE HAS BEEN ISSUED ON THIS PAPER.
NRC-SECY FORM DEC. 80
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FYI: HThompson-RESPONSE SHEET TRehm T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION FROM: COMMISSIONER ASSELSTINE
SUBJECT:
SECY-87 FINAL RULE 10 CFR 73.57, IMPLEMENTING REQUIREMENTS FOR LICENSEE ACCESS TO FBI CRIMINAL HISTORY DA'"A, DISAPPROVED ABSTAIN APPROVED xx as nioa.
NOT PARTICIPATING REQUEST DISCUSSION COMMENTS:
See attached.
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YES NO _, [
SIGNAlURE Entered on "AS" / ./ / /
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SECRETARIAT NOTE: PLEASE ALSO RESPOND TO.AND/OR COMMENT ON 0 MEMORANDUM IF ONE HAS BEEN ISSUED ON THIS PAPER.
NRC-SECY FORM DEC. 80
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- SECY-87-37 I approve the proposed rule as modified by the staff after meeting with assistants with the following exceptions:
(1) I am still uncomfortable with the exception for temporary workers.
It seems to be a little broad, and by its terms, it never has to be amended even after the Comission decides what to do on this issue. I would delete subsection (b)(2)(v) from the proposed rule. I would rather amend the rule once the Comission has decided how to deal with these workers.
(2) I would modify subsection (e)(2). I would change the phrase "within a licensee specified time frame" to "within a licensee specified time frame which shall not be less than ten days."
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t 4 cc: Stello Roe AFFIRMATT0N FYI: HThompson 4.$Jangochians RESPONSE SHEET TRehm T0: SAMUEL J. CHILK,- SECRETARY OF THE COMMISSION FROM: COMMISSIONER BERNTHAL
SUBJECT:
SECY-87 FINAL RULE 10 CFR 73.57, IMPLEMENTING REQUIREMENTS FOR LICENSEE ACCESS TO FBI CRIMINAL HISTORY DATA APPROVED DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS: g ey f o s4-u 6F - p a
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SECRETARIAT NOTE: PLEASE ALSO RESPOND TO AND/OR COMMENT ON OGC/0PE MEMORANDUM IF ONE HAS BEEN ISSUED ON THIS PAPER.
NRC-SECY FORM DEc. 80
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, AFFIRMATI0N FYI: HThompson KJamgochian BESPONSE SHEET . Ta6hm T0: SAMUEL J. CHILK, SECRETARY OF THE COMMISSION FROM: -COMMISSIONER ROBERTS
SUBJECT:
SECY-87 FINAL RULE 10 CFR 73.57, IMPLEMENTING PEQUIREMENTS FOR LICENSEE ACCESS TO FBI CRIMINAL HISTORY DATA APPROVED ( DISAPPROVED ABSTAIN NOT PARTICIPATING REQUEST DISCUSSION COMMENTS:
I agree with Commissioner Asseltine's second reconnendation.
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YES NO Entered on "AS" / / / / SIGNMURL VYO
' t DAlt SECRETARIAT NOTE: PLEASE ALSO RESPOND TO AND/OR COMMENT ON OGC/0PE MEMORANDUM IF ONE HAS BEEN ISSUED ON THIS PAPER.
NRC-SECY FORM DEC. 80 i
6310 Federal Register / V41. 52, N . 40 / M:nd:y, Mrrch 2,1987 / Rul:s cnd Regulitions )DR records prior to any final adverse individuals granted unescorted access to NUCt. EAR REGULATORY determination. the nuclear power facility,2 commenters COMMISSION On November 7,1986, the NRC recommended fingerprinting for vital published the proposed rule in the area unescorted access only, and 2 10 CFR Part 73 Federal Register (51 FR 40438).The commenters felt that the decision should Requirements for Criminal History comment period ended on December 8, be left with the licensee. A majority of 1986. the commenters who fe',t that it would Checks Summary of Public Comment be an administrative burden to AGENCv: Nuclear Regulatory fingerprint for unescorted access to vital Commission. Comments were received from 35 areas only, based their conclusions on
^*" "" the fact that it would be inefficient to r ac orI c nsee , re indus ups, s "8p a since s
suesesARY:The Nuclear Regulatory three private citizens, two contractors, {sa d experienc Commission [NRC)is adding a new one engmeering firm, and one State over 70% of the cases, those personnel regulation to implement a program for agency. Copies of comment letters are authorized unescorted access to the control and use of criminal history available for public inspection and protected areas og the p; ant ayso req ire copying for a fee at the NRC Public access to vital areas of the plant, an data received from the Federal Bureau Document Room at 1717 H Street NW.,
of Investigation (FBI) as part of criminal that an effective security program history checks of individuals granted Washin; ton, DC.
The proposed rule has been modified requires fingerprinting of allindividuals unescorted access to nuclear power with unescorted access to the plant.
facilities or access to Safeguards in response to comments received. as appropriate, and is being published in Accordingly, as a single level of Information by nuclear power reactor access authorization enhances security, lictnsees. Conducting criminal history final form effective on,the date of checks of such individuals will help publication of this notice. A summary of reduces the administrative burden.
the public comments, along with their promotes efficiencies in administering ass are that individuals with criminal resoludon, follows. The comments have the program, and as licensees currently histories impacting upon their reliability been placed in the following categories: have one access authorization program and trustworthiness are not permitted 1. Facility Access vs. Vital Area for unescorted access to both protected unescorted access to a nuclear power and vital areas of the plant, Access.
facility or access to Safeguards 2. Grandfathen,ng. fingerprinting will be required of all e
information. Issuance of this regulation 3. Temporary Unescorted Access. individuals requiring unescorted access is required under the provisions of 4. Contractors, Manufacturers, and to the nuclear power facility, which is to Public Law 99-399, Omnibus b"ppi Diplomatic Security and Anti-Terrorism 5, hbngdInfmh both the protected areas and vital areas f the plant.
Act of 1986." 6. Transfer of Criminal History File.
7, Miscellaneous issues.
- 2. Ctandfathering. Eighteen sFFECTIVE DATE: April 1,1987.
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FOR FURTHER lisFOResATION CONTACT *. sne dfathering viduals permanently al Saf and S f ar ' U.S*
I e i p sed I a ques lo arose s employed by a licensee with a Ma to whether or not fingerprinting should be required only for unescorted access stipulated minimum period of Nuclear Washington, DC 20555, telephone Regulatory Commissiort' (301) employment.The NRC staff recognizes to vital areas rather than to the nuclear 427 M that in many of these cases individuals power facility which also includes have been screened under an industry suPM.asesNTARY isIFOResATIOst protected areas.To be consistent with run access authorization program which the legislative intent and specific
""d language of Pub. L 99-399, the etaff had may also include behavioral observation.The staff also recognizes Section 006 of Pub.L 99-399,"The written the proposed rule to require Omnibus Diplomatic Security and Anti- fingerprinting of individuals granted the administrative burden and cost Terrorism Act of 1986." requires nuclear unescorted access to the nuclear power associated with fingerprinting all current facility. Additionally, during the public employees requiring unescorted access power reactor licensees and applicants to the nuclear power facility. However, to conduct criminal history checks comment period on the proposed through the use of FBI criminal history Access Authorization Rule, licensee Pub. L 99-399 mandates that "The and industry groups commented that it Nuclear Regulatory Commission . . .
data on individuals with unescorted access to nudear power facilities or was more cost effective to run a single shall require each licensee . . . to access to Safeguards Information.The access authorization program, especially fingerprint each individualwho is Act, signed by the President on August since the majority of employees needing permitted unescorted access to the 27,1986. requires the NRC to issue access to the protected area also facility or is permitted access to regulations to establish conditions for required access authorization to one or Safeguards Information under Section more vital areas. In the interest of 147." Commenters have pointed out that the use and control of the criminal history data received from the FBI. determining whether this view still the Public Law states:"The These conditions include procedures for prevailed, specific response was Commission, by rule, may relieve the taking of fingerprints, limits on use requested during the public comment persons from the obligations imposed by and redissemination of criminal history period to the following question: Should this section, upon specified terms, data, assurance tl*at the information is fingerprinting be required ofindividuals conditions, and periods, . . ." However, used solely forits intended purpose, and for unescorted access to vital areas only in "The Report of the Committee on the provisions that individuals subject to or to the nuclear power facility? In judiciary United States Senate on S. 274, fingerprinting are provided the right to response to the question, the following As Amended." September,1985,in Vll.
complete, correct and explain responses were received:13 commenters Section-by.Section Analysis,it is stated information in their criminal history recommended fingerprinting all that 'The Committee is of the view that S-094999 0002(00X27-FEB-87-15.38.13)
F4701.FhiT...[te.32]..1-22-87
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Federal Register / V 1. 52, Na. 40 / M:nd:y, M:rch 2.1987 / Rul s tnd Regul:ti:ns 6311 this exception be used only in difficult for licensees to directly control completing the remainder of the extraordinary circumstances." whether employees of contractors, background investigation for unescorted Crandfathering currently employed manufacturers, and suppliers requiring access so that the complete file on an individuals with unescorted access is access to Safeguards Information were, individual would be stored in one place not considered to be an extraordinary in fact, fingerprinted. The NRC staff and would be much more accessible for circumstance and does not meet the recognizes the difficulty for licensees in audit by the utility and the NRC.
Intent of Congress. Accordingly, controlling who is actually having According to the FBI, the information grandfathering individuals currently access to Safeguards Information employed on the effective date of final contained in a criminal history record utilized by contractors, manufacturers, may not be disseminated to anyone rule publication will not be permitted. and vendors. However, the staff other than the licensee. Licensees may
- 3. Temporary Unescorted Access. The believes that the magnitude of the hire a contractor to actually do the majority of respondents requested problem is not as great as perceived and initial fingerprinting of individuals if clarification in the final rule regarding can be significantly diminished through they so wish, but that would be the temporary unescorted access during the the proper use ofinformation period of time required to process and extent ofinvolvement on the management techniques. Licensees and contractor's part for criminal history return the submitted fingerprints to the licensee for newly hired individuals, applicants may find it more appropriate record checks.
~ to segregate general or nonsensitive A provision for transferring the data especially during refueling or maintenance outage when a nuclear information into unprotected appendices from one licensee to anoth tr only upon power facihty is in cold shutdown. This or attachments. Initial requests for bids the individual's request is contained in or proposals and original design the rule to preclude excessive issue is resolved in the final rule in that the provisions of the rule may be waived sketches, for example, would probably fingerprinting. especially for contractors, not qualify as Safeguards Information. suppliers and manufacturers. The for devitalized areas when all or a part The NRC's NUREG-0794, " Protection of of a nuclear power facility is in cold licensee may not disclose the record or shuidown, refueling, or devitalized Unclassified Safeguards Information" ' personalinformation collected and provides criteria and guidance to assist maintained to persons other than the status. This is allowable due to the fact I censees and other persons who that prior to startup, a thorough visual subject individual, his/her inspection of the devitalized area is possess Safeguards Information in representative, or those who have a made by knowledgeable plant personnel establishing an information protection need to have access to the information to identify signs of tampering or system that satisfies the requirements of in performing assigned duties in the 10 CFR 73.21. process of granting or denying attempted sabotage, and appropriate safety procedures are followed to assure In addition, a commenter expressed unescorted access to the nuclear power that all operating and safety systems are concern for the privacy of the personal facility or access to Safeguards information and felt that the control of Information.
n ddi7on nu ber of respondents "" *" "" " " " E # #" ^"" '
requested clarification in the final rule be better served by collecting and of commenters requested clarification concerning the status of temporary maintaining the specific information in on whether an individual who chooses workers during unexpected equipment an n uays c&nina tory n co M to comet, compMe. or explain an failures or maintenance outages. check file with the Individual,s actual alleged deficiene in his/her crimmal Commenters noted that if a facility has a employer, rather than having the history record sh uld be granted or sudden, unexpected equipment failure, a inf rmation held by other organizations. denied unescorted access while the number of temporary personnel may be The staff recognizes the merit in this challenge of information is in progress.
needed immediately to fix the problem c mment but the Public Law only allows The decision to grant or deny access and the estimated 25-day turnaround f r dissemination of the information while a challenge is being processed is time for fingerprint verification could c ntained in an individual s criminal at the discretion of andis the delay a plant from starting up as history record to and between licensees. responsibility of the licensee. This is a scheduled. The Commission notes that Commenters requested that the rule judgment deciaton by the licensee and is the broader issue addressing allow for these non-licensees to directly dependent on the needs of the situation, requirements for granting temporary submit fin rprint cards to the NRC and the availability and cost of escort, access is currently under NRC maintain t e files as the licensees feel prudence, security considerations, and management review and the role of that they cannot directly control every other factors perceived by the licensee.
fingerprinting in that context is not yet contractor, manufacturer, and supplier Respondents also requested specific defined. Pending resolution of this employee who designs, assembles, or definition of the two terms " final broader issue it is premature to stipulate perates all equipment which falls under adverse action" and " reasonable in this rule the fingerprint requirements the definition of Safeguards Information amount of time" contained in the associated with temporary access. In to CFR 73.21. Respondents also felt proposed rule under i 73.57(e)(2). Pub.1.
Accordingly, as a temporary measure, a that there should be a provision 99-399, section (c)(3), states that the statement has been included in allowing utilities to pass on criminal Commission shall prescribe regulations 9 73.57(b)(2) stating that upon further history data to the agency that is "to provide each individual subject to notice to licensees and without further fingerprinting under this section with the rulemaking the Commission may waive ' Copies of NURECA"94 may be purchased right to complete, correct, and explain requirements of this fingerprint rule on a throush the u s. covernment Prmting Office by (nformation Contained in the criminal n
temporary basis for temporary workers.
- 4. Contractors, Manufacturers, and c),nsg,2)n,2 n e t f,?p tjos"i.s history records prior to any final wa.hmston. oc 200mos2. copies may also be adverse determination ,. The term Suppliers. A number of commenters felt purchased from the National Technical information that requiring criminal history checks of service, u.s. Department of commerce. s2ss Port
" reasonable amount of time" was added contractors, manufacturers, and Roy R to the proposed rule to indicate that to P" 8 '
,,, te f$r epe r co a r a fee in be workable, some practicallimits were su pliers for access to Safeguards in ormation was unreasonable, as it was NW., the NRC Pubhc Document Room.1717 H street. necessa on the time for the challenge Washinston. DC 20555. to take p ce. Accordingly, the staff has S-094999 000h00X27-FEB-87-1538:15)
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6312 Federal Register / V:1. 52. N2. 40 / M:nd:y, M rch 2,1987 / Rul;s and R;gulttirns revised the rule to state:" Licensees his/her criminal history file could be discriminate against minorities or to must provide at least 10 days for an transferred. That was not the intent. penalize union members or individual to initiate action to challenge Staff analysis has concluded that the whistleblowers or to accomplish any the results of an FBI criminal history third conditional provision was other unlawful purpose." The right to records check after the record being unnecessary and accordingly,it has privacy is the primary First Amendment made available for his/her review. The been dropped from the final rule. nght that could be affected by this rule.
licensee may make a final adverse In addition, for clarification of Under the rule, an individual's right to determination. if applicable, only upon i 73.57(f)(5),if the data contained in an privacy is protected by the limitations receipt of the FBI's confirmation or individual's criminal history file needs on re-dissemination of personal correction of the record." The FBI has to be transferred to another licensee, a information contained in the rule itself.
Indicated that once they receive a copy of the data should be sent to Nonetheless, while recognizing that formal challenge of the record, a re- gaining licensees. The original file there is some merit in the public check is completed within should be retained by the original comment received. in the interest of approximately 3-4 weeks and the licensee for a one-year retention period emphasizing the importance of concern information is then returned to the upon the individual's termination of for individual's rights, the Commission is licensee. Therefore, given 10 days to employment or denial of unescorted retaining the reference to the First initiate action, an estimated one month access or access to Safeguards Amendment.
FBI resolution time, and allowance for Information at that facility. In additior., the Commission is aware the information to be mailed back and Comments were also received that utilities are already prohibited from forth, the time involved could average in requesting that the final rule contain discriminating in employment on the the order of 60 days. The licensee may provisions for reinstating an individual basis of race, religion, national origin, not make a final adverse determination, who is returning to the same utility and sex, or age by Title VII of the Civil such as termination of the individual's requires unescorted access. To preclude Rights Act of 1964 and by the Age employment, if applicable, until the re-fingerprinting an individual who ir Discrimination in Employment Act.
licensee receives confirmation or returning to the same utility, the final Also, utilities which are Government correction of the challenged disposition rule allows the licensees to use their contractors are required to sign an Equal of an arrest. discretion in not having to re-fingerprint Opportunity Clause in order to assure
- 6. TransferofCriminalllistoryFi/e. A this individual under the following nondiscrimination for the same reasons.
number of comments were received conditions:If the individual's unescorted Commenters pointed out that concerning the transfer of access access authorization under an industry- individuals es "whistleblowers" are also authorization. In analyzing the run program has not been interrupted for protected by section 210 of the Energy comments,it appears that the a continuous period of more than 365 Reorganization Act of 1974 and union respondents were confusing the days and the individual's previous members are protected under the requirements of FBI criminal history unescorted access was terminated under National Labor Relations Act. However, checks with the broader requirements favorable conditions. the rule itself contains no other for unescorted access authorization. It is 7. Afiscellaneous Issues. Several provisions that would preclude misuse noted that this rule is intended to miscellaneous issues which did not fit or abuse of the information in those explicitly address the requirements the previous categories were raised by contexts. Accordingly, the remainder of associated with the FBI criminal history respondents. These are addressed the precautionary statement is also data which is only one element of a below. retained.
background investigation portion of an The proposed rule required criminal Commenters expressed concern aver industry-run access authorization history records to be available onsite for limitations contained in $ 73.57 (c)((i) program. The provisions in this rule examination by NRC. Several multi site and (ii) which prohibit a licensee from allow the data in an individual's licensees reported that they maintain basing a final determination to deny an criminal history file to be transferred to centralized records at corporate individual unescorted access to a another licensee for consideration in headquarters and contended that such a nuclear power facility or access to granting unescorted access to the requirement would require substantial Safeguards Information solely upon an gaining licensee's facility under two duplication of facilities and records. arrest more than one year old for which conditions: upon the individual's request Accordingly, the word "onsite" has been there is no information of the disposition to re-disseminale the information deleted from the final rule to allow these of the case, or upon an arrest that contained in his/her file, and if, for licensees the requested flexibility. resulted in dismissal on the charge or an identification purposes, the gaining Section 73.57(c)(2) of the proposed acquittal. Commenters stated that it is licensee verifies information such as rule prohibited a licensee from using the not uncommon to find a case that had name, date of birth, social security FBI information in a manner that would not gone to trial within one year of the number, sex, and other applicable infringe upon an individual's rights date of the arrest. In situations like this, physical characteristics. The proposed under the First Amendment. Comments commenters felt that the licensee would rule contained a third conditional received on this provision indicated that be unable to take action if attorneys provision: that lian individsel was it is redundant and unnecessary. It was were employing tar. tics to delay or avoid terminated in the previous ass days, the the staff's intent to assure that trial, or where felony cases were being termination had to have been under individuals subject to fingerprinting are delayed for various other reasons.
favorable conditions. Ilowever, protected from misuse of the criminal Likewise, concern was expressed that according to consnents by several history records as mandated by Pub. L career criminals could manipulate the licensees, the third provisics was being 99-399. The Conference Report on H.R. criminal lustice system with ples interpreted as requiring termination in 4151 (published in the Congressional bargaining arrangemena and appear to all cases before 1e contents of the FBI Record on August 12,1986, p. H-5965) have no serious convictions et en though criminal history file could be contained legislative history which they continuously violate the law.
transferred. That is, that the individual etatei that " . Misuse would include. Commenters felt that licensee should be had to also have been terminated before for example, use of the records to allowed to grant or deny unescorted S-094999 0004fMD(27-RS &li3819)
F4701.FMT...l16.321..1-22-87 l
Feder:1 Regi:ter / Vol. 52 N2, 40 / M:nd:y, Mitch 2,1987 / Rul;s end R:gulati:ns 6313 access to their facilities or access to programs. Because of the nature or preclude administrative problems. To Safeguards Information based on their urgency of the action in which access is accommodate this request, licensees own judgment since an individual required, individuals responding to a may include the facility name in acquitted of a crime may still have site emergency and law enforcement addition to the docket number on the admittedly engaged in conduct which personnel acting in an official capacity forms.
should warrant the denial of unescorted are exempted. Although the rule is effective 30 days access. In response to the comments Under State agreement arrangements, after putlication in the Federal Register, received on this provision, the staff the requirement to provide nuclear licensees wishing to submit fingerprint reiterates that FBI criminal history data material transportation information to cards to the FBI through the NRC may received by the licensee is but one designated individuals, and under l
do so during this time, and all cards
( element of background investigations of situations when disclosure is ordered industry run access authorization received will be processed commencing pursuant to 92.744(e). Safeguards on April 8,1987, in order of receipt.
programs. The information received by Information is made available on a need the licensee on an individual's arrest to know basis and with the protections Environmentallmpact: Categorical record can be used as a basis for specified in 6 73.21 to certain Exclusion developing additional information which individuals. Accordingly, exemptions The NRC has determined that this rule may be used in the determination to have been provided for these situations. is the type of action described in grant or deny access. For example, The exemptions from the provisions of categorical exclusion 10 CFR 51.22(c)(3).
developed character references couM the rule are contained in paragraph confirm that the in,lividual's behavior, Therefore neither an environmental (b)(2) of the rule. impact statement nor an environmental as reflected in the arrest record,is not Additionally, as a Federal agency, assessment has been prepared for this considered desirable by the licensee as Tennessee Valley Authority (TVA) has rule.
suitable for the job. long submitted criminal history requests In analyzing the public comments, the to the FBI in accordance with TVA's Paperwork Reduction Act Statement staff felt that the respondents were security suitability investigations This final rule amends information misinterpreting the word " solely"in the conducted under Executive Order No collection requirements that are subject context of the provision.The term 1M50. This program is equivalent to the to the Paperwork Reduction Act of 1980
" solely" was never intended to imply program proposed to the rule. Therefore, (44 U.S.C. 3501 et seq.). These that the information from the FBI was TVA will be allowed to continue its requirements were approved by the the only data to be used in determining program of submitting fingerprint cards Office of Management and Budget whether to grant or deny unescorted directly to the FBI. approval number 3150-0002.
access or access to Safeguards Several respondents requested that Information but rather to preclude its the NRC billlicensees on a monthly Regulatory Analys,s i misuse (i.e., for discrimination basis for fingerprint cards submitted to The NRC staff has prepared a purposes).The results of other elements the FBI through the NRC, regulatory analysis on this final of industry.run access authorization Analysis by the staffindicated that regulation. The analysis examines the programs are also taken into account in developing and implementing billing costs and benefits of the alternatives making the decision.However,if all procedures, monitoring receipt of considered by the Commission.The results are favorable except for an payment, calculating interest on late analysis is available for inspection in arrest without a disposition on an payments, sending notices of the NRC Public Document Room.1717 H individual's criminal history record, the nonpayment and other administrative Street NW., Washington, DC 20555.
licensee cannot deny unescorted access activities would increase known or Single copies of the analysis may be or access to Safeguards Information estimated agency personnel and interest obtained from Kristina lamgochian, because of the arrest itself, as stipulated costs to the Government. NRC has a Safeguards Reactor Regulatory in Pub. L 99-399. responsibility under the Deficit Requirements Section. Division of A number of letters of comment were Reduction Act of1984 and 31 CFR Part Safeguards, Office of Nuclear Material received requesting additional 200 to develop a collection mechanism Safety and Safeguards, U.S. Nuclear provisions for exemptions to the rule. that expedites credit and availability of Regulatory Commission, Washington, The staff has analyzed the various monies to the U.S. Treasury. DC 20555, telephone (301) 427-4754.
situations and concluded that certain Accordingly, implementation of a billing exemptions are warranted because of and collection system, which unduly Regulatory Flexibility Certification the nature or urgency of the action in increases costs to the Government, In accordance with the Regulatory which access is required, the individuals solely for the benefit of licensees, is not Flexibility Act of 1980,5 U.S.C. 605(b).
either have undergone equivalent appropriate. the Commission hereby certifies that if clearance programs or have been The Supplementary Information of the promulgated, this rule will not have a certified by the NRC, or have been proposed rule suggested that a significant economic impact upon a ordered access to Safeguards forwarding letter transmitting the substantial number of small entities. The Information pursuant to 10 CFR 2.744, fingerprint cards contain the facility rule affects licensees who operate For example. NRC employees and NRC docket number in addition to other nuclear power plants under 10 CFR contractors on official agency business requested informa tion. Likewise, the Parts 50 and 73.The companies that have undergone equivalent clearance facility docket number needs to be own these plants do not fall within the programs and are certified by the NRC included on each individual fingerprint scope of the definition of "small to the licensee. Likewise. individuals card in the space marked " Reason 1 entities" set forth in section 605(b) of the j employed at a facility who possess "Q", Fingerprinted."It was requested by two Regulatory Flexibility Act of 1980, or i "L", or other activegovernment granted multi. plant licensees that the within the definition of Small Business security clearances, and certain State requirement for docket numbers be Size Standards set out in regulations and local government employees have deleted and that the facility name be issued by the Small Business also undergone equivalent clearance used in lieu of the docket number to Administration in 13 CFR Part 121.
s 4m999 ocohaox27-FEB-87-15 38 21)
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. i 6314 Federal Register / Vol. 52, No. 40 / Monday, March 2,1987 / Rules and Regulations Backfit Analysis receiving its operating license for those individuals to whom disclosure is As this rulemaking is based upon a individuals who will require unescorted ordered pursuant to i 2.744(e);
legislative mandate, the need to make a access to the nuclear power facility. (iii) Any licensee currently processing backfit decision is unnecessary. (b) Cenero/ performance objective criminal history requests through the FBI and requirements. (1) Except those pursuant to Executive Order 10450 IJst of Subjects in to CFR Part 73 listed in paragraph (b)(2) of the section, need not also submit such requests to liazardous materials-transportation, each licensee subject to the provisions the NRC under this section; and Incorporation by reference, Nuclear f this section shall fingerprint each (iv) When a nuclear power plant is in materials. Nuclear power plants and individual who is permitted unescorted cold shutdown during refueling or major reactors. Penalty, Reporting and access to the nuclear power facility or mair.tenance, the requirements of this recordkeeping requirements, Security access to Safeguards Information. rule may be waived for devitalized measures. Individuals who have unescorted access areas.
For the reasons set out in the authorization on Aprill,1987 will retain (v) Upon further notice to licensees preamble and under the authority of the such access pending licensee recaipt of and without further rulemaking, the Atomic Energy Act of1954 as amended. the results of the criminal history check Commission may waive certain the Energy Reorganization Act of1974, on the individual's fingerprints, so lon8 requirements of this section on a as amended, and 5 U.S.C. 553, the NRC as the cards were submitted by temporary basis for temporary workers.
September 28,1987. The licensee will is adopting the following amendment to (3) The licensee shall notify each -
10 CFR Part 73. then review and use the mformation affected individual that the fingerprints received from the Federal Bureau of PART 73-PHYSICAL PROTECTION OF Investigation (FBI) and based on the w 11 be used to secure a review of his/
provisions contained in this rule-
, her criminal history record, and inform PLANTS AND MATERIALS the individual of proper procedures for determine either to continue to grant or
- 1. The authority citation for CFR part to deny further unescorted access to the revising the record or including 73 is revised to read as follows: explanation in the record' facility or Safeguards Informatio : for Authority: Secs.53.161. 68 Stat. 930. 948. as that individual. Individuals who do not (4) Fingerprinting is not required if the utility is reinstating the unescorted amended sec.147. 94 Stat. 780 (42 U.S C have unescorted access or access to 2073. 2167,2201); sec. 201, as amended. 204.
Safeguards information after April 1, access to the nuclear power fac;lity or 68 Stat.1242. as amended. 1245 (42 U.S C access to Sa[eguards Ingormation 1987 shall be fingerprinted by the 5841,58441 granted an individual if.
licensee and the result of the criminal Pu 295. .78 42 S a i g a deter nato fo grantin e p u i aga a es note) Section 73.57 is issued under sec. 606.
unescorted access to the nuclear power and such access has not been ,
Pub. L.99-399. and Section 1611. 68 Stat. 948i facility or access to Safeguards interrupted for a continuous penod of (42 U.S C 2201). more than 365 days; and For the purposes of sec. 223,68 Stat. 958, as Infonnation.
(2) Licensees need not fingerprint in (ii) The previous access was amended (42 U.S.C 2273): ll 73.21. 73.37(g).
and 73.55 are issued under sec.161b. 68 Stat.
accordance with the requirements of terminated under favorable conditions.
948 as amended (42 U.S C 2201(b)): il 73.20, this section for the following categories: (5) Mngerprints need not be taken. in the discretion of the licensee,if an 73.24,73.25.73.26. 73 27.73.37,73.40. 73.45. (i) For unescorted access to the 73.46,73.50. 73.55,73.67 are issued under sec. nuclear power facility or for access to individual who is a permanent employee 1611. 68 Stat. 949 as amended (42 U.S C Safeguards information (but must of a licensee, contractor, manufacturer, 2201(1)): and ll 73.2o(c)(11. 73.24(b)(1), adhere to provisions contained in r supplier has been granted unescorted 73 26(b)(3) (h)(6), and (k)(4). 73.27 (a) and (b). access to a nuclear power facility or to 73.37(f). 73.40 (b) and (d). 73.46(g)(6) and I 73.21): NRC employees and NRC (h)(2). 73.50(g)(2). (3)(iii)(B). and (h), contractors on official egency business: Safeguards Information by another individuals responding to a aite licensee based in part on a criminal 73.55(h)(2) and (4)(iii)(D). 73.70. 73.71. 73.72 are issued under sec. 1610,68 Stat. 950, as emergency in accordance with the history records check under this section.
amended (42 U.S.C 2201(o)). provisions of i 73.55(a); a representative The enminal history check file may be of the International Atomic Energy transferred to the gaining licensee in
- 2. A new I 73.57 is added to read as accordance with the provisions of I U *** Agency (IAEA) engaged in activities associated with the U.S./lAEA paragraph (f)(3) of this section.
9 73.57 Requirements for criminal history Safeguards Agreement at designated (6) All fingerprints obtained by the checks of Individuals granted unescorted facilities who has been certified by the licensee under this section must be access to a nuclear power facility or access NRC: law enforcement personnel acting submitted to the Attorney General of the to Safeguards Information by power in an official capacity: State or local United States through the Commission.
reactor licensees. government employees who have had (7) The licensee shall review the (a) Ceneral. (1) Each licensee who is equivalent reviews of FBI criminal information received from the Attorney authorized to operate a nuclear power histo y data; and individuals employed General and consider it in making a reactor under part 50 shall comply with at a facility whn possess "Q" or "L" determination for granting unescorted the requirements of this section. clearances or possess another active access to the individual or access to (2) Each applicant for a license to government granted security clearance, Safeguards Information.
operate a nuclear power reactor i.e., Top Secret. Secret, or Confidential: (8) A licensee shall use the pursuant to Part 50 of this chapter shall (ii) For access to Safeguards information obtained as part of a submit fingerprint cards for those Information only but must adhere to criminal history records check solely for individuals who have or will have provisions contained in I 73.21: the purpose of determining an access to Safeguards Inf( . nation. Employees of other agencies of the individual's suitability for unescorted (3) Each applicant for a license to United States Government: a member of access to the nuclear power facility or operate a nuclear power reactor a duly authorized committee of the access to Safeguards Information.
pursuant to Part 50 of this chapter may Congress: the Governor of a State or (c) Prohibitions. (1) A licensee may submit fingerprint cards prior to his/her designated representative; not base a final determination to deny S-094999 000t<0nH27-FEB-87-15 38 24)
F4701.FMT...[16.32j..1-22 87
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Federal Register / Vol. 52, No. 40 / Mond;y, M:rch 2,1987 / Rul;s end R:gul:ti:ns 6315 l
I an individual unescorted access to the payment with the application for the receipt of the FBI's confirmation or nuclear power facility or access to processing of fingerprints through correction of the record.
Sufeguards Information solely on the corporate check, certified check, (f) Protection ofinformation. (1) Each cashier's check, or money order made licensee who obtains a criminal history basis of information received from th+
FBIinvolving: payable to "U.S. NRC," at the rate of record on an individual under this (i) An arrest more than 1 year old for $15.00 for each card. Combined payment section shall establish and maintain a which there is no infonnation of the for multiple applications is acceptable. system of files and procedures for disposition of the case: or (4) The Commission will forward to protection of the record and the (ii) An arrest that resulted in dismissal the submitting licensee all data received personal information from unauthorized of the charge or an acquittal. from the FBI w a result of the licensee's disclosure.
(2) A licensee may not use application (s) for criminal history (2) The licensee may not disclose the information received from a criminal checks, including the individual's record or personalinformation collected history check obtained under this fingerprint card. and maintained to persons other than section in a manner that would infringe (e)Ifight to correct and complete the subject individual, his/her upon the rights of any individual under information. (1) Prior to any final representative, or to those who have a the First Amendment to tl* Constitution adverse determination, the licensee need to have access to the information of the United States, nor sult the shall make available to the individual in performing assigned duties in the licensee use the information in any way the contents of records obtained from process of granting or denying which would discriminate among the FBI for the purpose of assuring unescorted access to the nuclear power individuals on the basis of race, religion, correct and complete information. facility or access to Safeguards national origin, sex, or age. Confirmation of receipt by the Information. No individual authorized to (d) Proceduresforprocessing of individual of this notification must be have access to the information may re-fingerprint checks. (1) For the purpose of maintained by the licensee for a period disseminate the information to any other complying with this section, licensees of1 year from the date of the individual who does not have a need to shall submit one completed, legible notification. know.
standard fingerprint card (Form FD-258, (2)If after reviewing the record, an (3) The personal information obtained ORIMDNRCOOOZ, NRC Division of individual believes that it is incorrect or on an individual from a criminal history Security, Bethesda, MD) which may be incomplete in any respect and wishes record check may be transferred to obtained from the NRC for each changes, corrections, or updating (of the another licensee:
individual requiring unescorted access alleged deficiency), or to explain any ( ) Upon the individual's wr'iten to the nuclear power facility or access to matter in the record, the individual may request to the licensee hol&g the data Safeguards Information to the Director, initiate challenge procedures. These to re-disseminate the infr.mation Division of Security, U.S. Nuclear procedures include direct application bY contained in his/her file and Regulatory Commission, Washington, the individual challenging the record to (ii) The gaining licens e verifies DC 20555, Attention: Criminal History the agency, i.e., law enforcement information such as nam *, data of birth, Check Section. Copies of these forms agency, that contributed the questioned social security number, st x, and other may be obtained by writing to: information or direct challenge as to the applicable physical charaveristics for '
Information and Records Management accuracy or completeness of any entry identification.
Branch (PMSS), U.S. Nuclear Regulatory on the c'minal history record to the (4)The licensee shall maks criminal Commission, Washington, DC 20555. Assistant Director, Federal Bureau of history records obtained unde r this The licensee shall establish procedures investigation Identification Division, section available for examint.iion by an to ensure that the quality of the Washington, DC 20537-9700 as set forth authorized representative of the NRC to fingerprints taken results in minimizing in 28 CFR 16.30 through 16.34. In the determine compliance with the the rejection rate of fingerprint cards latter case, the FBI then forwards the regulations and laws.
due to illegible or incomplete cards. challenge to the agency that submitted (5) The licensee shall retain all (2) The Commission will review the data requesting that agency to verify fingerprint cards and criminal history applications for criminal history checks or correct the challenged entry Upon records received from the FBI, or a copy for completeness. Any Form FD-258 receipt of an official communication if the individual's file has been containing omissions or evident errors directly from the agency that transferred, on an individual (including will be returned to the licensee for contributed the originalinformation, the data indicating no record) for 1 year corrections. No additional fee will be FBIIdentification Division makes any after termination or denial of unescorted charged for fingerprint cards needed to changes necessary in accordance with access to the nuclear power facility or replace returned incomplete or illegible the inforrnation supplied by that agency, access to Safeguards Information.
fingerprint cards if the original Licensees must provide at least to days Dated at Washington, DC, this 26th day of fingerprint card is attached to the for an Individual to initiate action to February 1987.
resubmittal or a note is attached challenge the results of an FBI criminal For the Nuclear Regulatory Commission.
Indicating that the previously submitted history records check after the record card had t een incomplete. being made available for his/her review. Samuel f. Chilk, The licensee may make a final adverse Secretary of the Commission.
(3) Fees for the processing of determination based upon the criminal (FR Doc. 87-4436 Filed 2-27-87; 9:31 em]
fingerprint checks are due upon application. Licensees shall submit history record, if applicable, only upon owna coos iseo-oi-u S-094999 in07(00X27-I ED-87-15:38,28) r' m. rn er r4 e 191 1 9 9.n't
! A- C.2> Z. PbR IN RESPONSE, PLEASE I / o UNIYED STATES
/ g NUCLEAR REGULATORY COMMISSION t WASHIN GTON, D.C. 20666 Thompson g
March 9, 1987 oe Lesar
% . . . . . ,,P Rehm Shelton OFFICE OF THE sECnETAny KJamcochian Norry MEMORANDUM FOR: Victor Stello, Jr. Denton Executive Dir tor or Operations Taylor Scroggins FROM: Samuel J. Chi , cretary Mcdonald
SUBJECT:
STAFF REQUIREMENTS - AFFIRMATION / DISCUSSION AND VOTE, 3:00 P.M., THURSDAY, FEBRUARY 26, 1987, COMMISSIONERS' CONFERENCE ROOM, D.C. OFFICE (OPEN TO PUBLIC ATTENDANCE)
I. SECY-87 Final Rule 10 CFR 73.57, Implementing Require-ments for Licensee Access to FBI Criminal History Data '
The Commission, by a 4-1* vote, approved a final rule which 9 implements procedures for the control and use of criminal 5 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 facil-ities or access to Safeguards Information by power reactor (N -
licensees.
The Commission also agreed with modifications provided by the staff on February 24, 1987, and with changes by Chairman Zech and Commissioner Asselstine which would retain a reference to
, the "First Amendment" in the rule and specify in subsection (e) (2) that licensees must provide at least 10 days for workers ,
to challenge the FBI record. Commissioner Asselstine disapproved because he would have deleted section (b) (2) (v) on temporary worker access and would deal with this issue in additional rulemaking.
(Subsequently, on February 26, 1987, the Secretary signed the Federal Register Notice and forwarded it for publication.)
cc: Chairman Zech Commissioner Roberts # A Commissioner Asselstine Commissioner Bernthal '
)[-
Commissioner Carr Commission Staff Offices PDR - Advance k
DCS - 016 Phillips '
- Section 201 of the Energy Reorganization Act, 42 U.S.C. S5841, provides that action of the Commission shall be determined by a
" majority vote of the members present." Commissioner Bernthal was not present when this item was affirmed. Accordingly, the formal vote of the Commission was 3-1 in favor of the decision.
Commissioner Bernthal, however, had previously indicated that he d
would approve this paper and had he been present he wo_Ra h oEw))pve
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