ML082340897

Notice Regarding Forthcoming Federal Firearms Background Checks

ML082340897
Person / Time
Issue date:	12/22/2008
From:	Camper L, Dan Dorman, Scott Flanders, Mcginty T NRC/FSME, Office of Nuclear Material Safety and Safeguards, Office of New Reactors, Office of Nuclear Reactor Regulation
To:
Brochman P, NSIR/DSP, 301-415-6557
References
RIS-08-010, Supp 1
Download: ML082340897 (8)

See also: RIS 2008-10

Text

ML082340897

UNITED STATES

NUCLEAR REGULATORY COMMISSION

OFFICE OF NEW REACTORS

OFFICE OF NUCLEAR REACTOR REGULATION

OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS

OFFICE OF FEDERAL AND STATE MATERIALS AND

ENVIRONMENTAL MANAGEMENT PROGRAMS

WASHINGTON, DC 20555-0001

December 22, 2008

NRC REGULATORY ISSUE SUMMARY 2008-10, SUPPLEMENT 1

NOTICE REGARDING FORTHCOMING

FEDERAL FIREARMS BACKGROUND CHECKS

ADDRESSEES

All U.S. Nuclear Regulatory Commission (Commission or NRC) licensees, certificate holders,

and applicants for a license or certificate of compliance who use armed security personnel as

part of their physical protection system and security organization. All Radiation Control Program

Directors and State Liaison Officers.

INTENT

The NRC is issuing Supplement 1 to Regulatory Issue Summary (RIS) 2008-10 to update

information provided in the original RIS to licensees, certificate holders, and applicants who will

be affected by the forthcoming Federal firearms background checks required by section 161A of

the Atomic Energy Act of 1954, as amended (AEA) (42 U.S.C. § 2201a). RIS 2008-10 was

originally issued on May 13, 2008. The NRC recommends that affected licensees, certificate

holders, and applicants discuss the contents of this supplemental RIS with their armed security

personnel. This supplement to RIS 2008-10 requires no specific action or written response by

the addressees.

For byproduct material licensees, the NRC has no current or planned requirements

necessitating the use of armed security personnel. However, some byproduct material

licensees may use armed security personnel to provide security for their overall facility rather

than directly providing security for the radioactive byproduct material itself. Therefore, as with

RIS 2008-10, the NRC is also issuing this supplement to RIS 2008-10 to Radiation Control

Program Directors and State Liaison Officers for their information.

BACKGROUND INFORMATION

In RIS 2008-10, the NRC had provided information for advance planning by licensees,

certificate holders, applicants, and their respective armed security personnel before the NRC

issues new requirements on firearms background checks. These firearms background checks

RIS 2008-10, Supp. 1

Page 2 of 6

are intended to provide assurance that such security personnel are not legally barred by Federal

law from receiving, possessing, transporting, or using any covered weapons. The RIS had also

provided information for affected security personnel, before they are subject to future firearms

background checks, to consider applying under the Federal Bureau of Investigation (FBI)

Voluntary Appeal File (VAF) program to verify that the FBI does not consider them disqualified

from possessing firearms or ammunition. Based upon the NRCs understanding of the U.S.

Department of Justices (DOJs) previous views on section 161A, RIS 2008-10 had indicated

that firearms background checks would affect only the armed security personnel at facilities

owned and operated by NRC licensees and certificate holders who applied to the NRC for the

new enhanced weapons or preemption authority provided by section 161A.

However, subsequent to the issuance of RIS 2008-10, the DOJ informed the NRC that the DOJ

had revised its views on the applicability of firearms background checks mandated by

section 161A. Specifically, the DOJ has indicated that section 161A mandates that all security

personnel who have duties that require access to covered weapons and who are engaged in the

protection of Commission-designated facilities, radioactive material, or other property owned or

operated by an NRC licensee or certificate holder must be subject to a fingerprint-based

background check by the U.S. Attorney General (AG) and a firearms background check against

the FBI National Instant Background Check System (NICS). The NRC expects this revised view

of the statutes mandate to increase the number of security personnel who will be subject to a

firearms background check.

Under DOJs current view (as reflected in the Firearms Guidelines issued pursuant to section

161A), firearms background checks would be mandatory for security personnel of all licensees

and certificate holders who meet the following conditions: (1) the licensee or certificate holder

must fall within the classes of facilities, radioactive material, or other property designated by the

Commission; (2) the licensee or certificate holder must employ covered weapons as part of their

protective strategy; and (3) the security personnels access to or possession of covered

weapons must be necessary to the discharge of their official duties. Covered weapons include

both standard weapons (e.g., handguns, shotguns, and rifles) and enhanced weapons (e.g.,

machineguns). All three conditions must be met for a licensee or certificate holder to be subject

to the firearms background check requirements. Applicants for a license or for a Certificate of

Compliance (CoC) would not be subject to the requirements of section 161A.

With respect to the designation of facilities, radioactive material, and other property required by

section 161A, the Commission is considering designating power reactor facilities and Category I

strategic special nuclear material (SSNM) facilities in an ongoing rulemaking. The Commission

intends to consider designating additional classes of facilities, radioactive material, or other

property in a separate future rulemaking. The NRC expects to publish a revised proposed rule

in the Federal Register for public comment in late 2008 or early 2009 that will designate these

two classes of facilities and will provide the specific requirements to implement section 161A.

Licensees and certificate holders may not begin firearms background checks until after the NRC

issues a final rule implementing section 161A. The revised proposed rule would not subject

applicants for a license or a CoC to these proposed regulations until after the NRC issues their

respective license or CoC.

RIS 2008-10, Supp. 1

Page 3 of 6

SUMMARY OF ISSUE

Because of changes in the Firearms Guidelines to the scope of applicability of the firearms

background checks, the NRC is issuing this supplement to permit impacted licensees, certificate

holders, applicants, and their respective armed security personnel to adjust their planning efforts

before the NRC issues new regulations on firearms background checks. Because DOJ revised

its views on the applicability of the firearms background checks, the NRC has significantly

changed its approach in this revised proposed rule.

The firearms guidelines required to be issued by the Commission with the approval of the AG

(under the mandate of section 161A) specify that firearms background checks are required of

security personnel whose official duties require access to covered weapons. The NRC staffs

approach being considered for the revised proposed rule discussed above would apply firearms

background checks to security personnel who handle, use, and repair covered weapons and to

personnel who inventory enhanced weapons. Specifically, this would include security personnel

performing security duties including: armed officers, armed responders, tactical response

forces, and armed supervisors; firearms instructors; armorers repairing, maintaining, and testing

weapons; armory-personnel issuing and receiving weapons; and enhanced-weapons inventory

personnel. The NRC staff is not considering including warehouse or supply personnel who

receive shipments of weapons, provided that the weapons remain sealed in their shipping

containers, are promptly turned over to security personnel, and are promptly moved to security

storage areas (e.g., armories). The NRC emphasizes that stakeholders will have an opportunity

to comment on these proposals in the forthcoming revised proposed rule.

The revised proposed rule would require affected licensees and certificate holders to begin

firearms background checks by submitting information to the NRC within 30 days of the effective

date of a final rule designating the two classes of facilities proposed (i.e., power reactor facilities

and Category I SSNM facilities). The revised proposed rule would also require all affected

licensees and certificate holders within 180 days of the effective date of a final rule to remove

any security personnel who have not completed a satisfactory firearms background check from

duties that require access to covered weapons. After this 180-day implementation period, a

proceed NICS response from the FBI is considered a satisfactory firearms background check.

A delayed NICS response or a denied NICS response from the FBI is considered an adverse

firearms background check. For other classes of facilities, radioactive material, or other

property designated by the Commission in a future rulemaking, the 30-day and 180-day clocks

would start after the effective date of that final rule.

During the 180-day implementation period, the revised proposed rule would provide that

individuals who receive a delayed NICS response may continue duties that require access to

standard weapons, but not to enhanced weapons. Additionally, licensees and certificate

holders must remove individuals who receive a denied NICS response from duties that require

access to covered weapons. Individuals who have been removed from such duties and who

subsequently complete a satisfactory firearms background check may be returned to such

duties under the revised proposed rule.

RIS 2008-10, Supp. 1

Page 4 of 6

The information contained in RIS 2008-10 on disqualifying criteria for possessing and issuing

firearms and ammunition currently stipulated under 18 U.S.C. § 922(d), (g), and (n) remains

unchanged. The information about the FBI VAF program is repeated below as an aid to the

reader.

Security Personnel Initiatives in Advance of Firearms Background Checks

Because the FBI NICS database uses a name- and descriptor-based search process, rather

than a fingerprint-based search process, an individual who has a common name, has been the

victim of identity theft, or on whom there may be incomplete or inaccurate records in the NICS

database (e.g., the expungement of a prior conviction or the receipt of a pardon may not have

been recorded) could receive a false-positive denied response which indicates that she or he

is under a Federal firearms disability. For a denied response, the NICS automatically refers

the individual to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) for possible

criminal investigation. The FBI will use the fingerprint impressions submitted by the security

officer who is under a firearms background check to resolve questions of identity following the

NICS search process. For example, is hypothetical security officer John Smith, who is

applying for a firearms background check, one of the 18 individuals named John Smith with a

record in the NICS database indicating they are under a Federal firearms disability, or not?

Consequently, although the use of fingerprints as part of a firearms background check will

reduce the potential for misidentification of an individual as being under a Federal firearms

disability, it will not completely eliminate such potential errors and subsequent false positive

referrals to the ATF. Therefore, because many security personnel have not been previously

checked against the FBI NICS database, individuals who may be subject to a firearms

background check under the revised proposed rule described above may wish to apply under

the FBI VAF program, before they are subject to the final firearms background check

regulations.

Individuals who apply for entry into the VAF program must submit descriptive data and

fingerprint impressions to the FBI. The FBI will examine the fingerprints and descriptive data

against the NICS databases to determine whether the individual is under a Federal firearms

disability. If no prohibitive information is discovered, the FBI approves the application and the

individual is placed in the VAF program. These individuals are issued a unique personal

identification number (UPIN). Security personnel would include their UPIN on the NRC Form

754 that they would submit under the future firearms background checks, thus reducing the

potential for misidentification and consequent delays in completing their firearms background

check. Additionally, applicants to the VAF program whose entry is rejected because of the

presence of prohibitive information are not automatically referred to ATF. Furthermore, an

individual who believes she or he is erroneously included in the NICS databases can appeal to

the FBI to correct any inaccurate or incomplete records. Further information on the FBI VAF

program can be found on the FBI Web site (Reference 1).

Accordingly, the NRC recommends that licensees, certificate holders, and applicants discuss

the contents of this supplemental RIS with their security personnel whose duties require, or will

require, access to covered weapons.

RIS 2008-10, Supp. 1

Page 5 of 6

BACKFIT DISCUSSION

This supplemental RIS does not impose a regulatory staff position interpreting Commission

rules that is either new or different from a previously applicable staff position. Therefore, it is not

a backfit as defined by the NRCs backfit regulations under 10 CFR 50.109, 70.76, 72.62, or

76.76. This supplemental RIS concerns licensee, certificate holder, and security personnels

compliance with new statutory obligations under 42 U.S.C. § 2201a regarding firearms

background checks and the voluntary participation by security personnel in the FBI VAF

program. This supplemental RIS requires no action or response by the addressees.

Furthermore, this supplemental RIS describes draft approaches the NRC staff is considering for

proposed regulations implementing the firearms guidelines. The public and stakeholders will

have an opportunity to provide comments on the revised proposed rule setting forth these

potential approaches to implementing the firearms guidelines, particularly with respect to the

identification of the specific security personnel who would be subject to the rules

requirements. Consequently, this supplemental RIS does not constitute a final regulatory

position of the NRC staff. Accordingly, the staff did not perform a backfit analysis.

FEDERAL REGISTER NOTIFICATION

The NRC did not publish a notice of opportunity in the Federal Register requesting public

comment on this supplemental RIS, because this RIS is informational. However, the NRC

posted a draft of this supplemental RIS to the NRCs Documents for Comment Web page and

requested comments. The NRC also discussed this supplemental RIS at a public meeting with

various stakeholders on September 3, 2008, at the Bethesda North Marriott Hotel & Conference

Center in Rockville, MD. Additionally, the NRC posted a draft of this supplemental RIS in

advance of the public meeting to the NRCs Public Meeting Schedule Web page, along with

the meeting notice and agenda. Handouts of the draft supplemental RIS were also available at

the public meeting. Stakeholders provided written and verbal comments on the draft

supplemental RIS and the NRC staff considered these comments in developing this

supplemental RIS.

CONGRESSIONAL REVIEW ACT

The NRC has determined that this action is not subject to the Congressional Review Act

(5 U.S.C. §§ 801-808).

PAPERWORK REDUCTION ACT STATEMENT

This supplemental RIS discusses existing information collection requirements that are subject to

the Paperwork Reduction Act of 1995 (44 U.S.C. § 3501, et seq.). The Office of Management

and Budget (OMB) approved these information collection requirements under control number

3150-0002. This supplemental RIS also discusses proposed information collection

requirements that will be subject to the Paperwork Reduction Act of 1995. However, as of the

date of issuance of this RIS, OMB has not approved these information collection requirements

which are associated with the proposed firearms background checks required by 42 U.S.C.

§ 2201a and the proposed NRC Form 754.

RIS 2008-10, Supp. 1

Page 6 of 6

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for

information or an information collection requirement unless the requesting document displays a

currently valid OMB control number.

REFERENCE

1. Information on the FBI Voluntary Appeal File (VAF) program may be found at the FBIs Web

site http://www.fbi.gov/hq/cjisd/nics/index.htm under the heading General Information about

NICS in the link to the NICS Voluntary Appeal File Brochure - (in English). The .pdf link

under this brochure includes the form and instructions to apply to the VAF program.

CONTACT

This supplemental RIS requires no specific action or written response. If you have any

questions about this supplemental RIS, please contact one of the technical contacts listed

below.

/RA/

Charles Cox for

Timothy J. McGinty, Director

Scott C. Flanders, Director

Division of Policy and Rulemaking

Division of Site and Environmental Reviews

Office of Nuclear Reactor Regulation

Office of New Reactors

/RA/

/RA/

Larry W. Camper, Director

Daniel H. Dorman, Director

Division of Waste Management and

Division of Fuel Cycle Safety and Safeguards

Environmental Protection

Office of Nuclear Material Safety and Safeguards

Office of Federal and State Materials and

Environmental Management Programs

Technical Contacts:

Philip Brochman, NSIR

Bob Beall, NRR

(301) 415-6557

(301) 415-3874

E-mail:Phil.Brochman@nrc.gov

E-mail:Robert.Beall@nrc.gov

John Hickman, FSME

Peter Habighorst, NMSS

(301) 415-3017

(301) 492-3136

E-mail:John.Hickman@nrc.gov

E-mail:Peter.Habighorst@nrc.gov

Enclosure: List of Recently Issued FSME Generic Communications

Note: A complete listing of recent NRC generic communications may be found on the NRCs

public Web site http://www.nrc.gov under the link to: Electronic Reading Room>Document

Collections.

RIS 2008-10, Supp. 1

Page 6 of 6

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an

information collection requirement unless the requesting document displays a currently valid OMB control number.

REFERENCE

1. Information on the FBI Voluntary Appeal File (VAF) program may be found at the FBIs Web site

http://www.fbi.gov/hq/cjisd/nics/index.htm under the heading General Information about NICS in the link to the

NICS Voluntary Appeal File Brochure - (in English). The .pdf link under this brochure includes the form and

instructions to apply to the VAF program.

CONTACT

This supplemental RIS requires no specific action or written response. If you have any questions about this

supplemental RIS, please contact one of the technical contacts listed below.

/RA/

/RA/

Timothy J. McGinty, Director

Scott C. Flanders, Director

Division of Policy and Rulemaking

Division of Site and Environmental Reviews

Office of Nuclear Reactor Regulation

Office of New Reactors

/RA/

/RA/

Larry W. Camper, Director

Daniel H. Dorman, Director

Division of Waste Management and

Division of Fuel Cycle Safety and Safeguards

Environmental Protection

Office of Nuclear Material Safety and Safeguards

Office of Federal and State Materials and

Environmental Management Programs

Technical Contacts:

Philip Brochman, NSIR

Bob Beall, NRR

John Hickman, FSME

(301) 415-6557

(301) 415-3874

(301) 415-3017

E-mail: Phil.Brochman@nrc.gov

E-mail: Robert.Beall@nrc.gov E-mail: John.Hickman@nrc.gov

Peter Habighorst, NMSS

(301) 492-3136

E-mail: Peter.Habighorst@nrc.gov

Enclosure: List of Recently Issued FSME Generic Communications

Note: A complete listing of recent NRC generic communications may be found on the NRC public Web site

http://www.nrc.gov under the link to: Electronic Reading Room>Document Collections.

DISTRIBUTION: (NSIR-08-0444) RidsNsirDsp RidsNsirOd RidsNsirMailCenter

ADAMS Accession # ML082340897

• See previous concurrence

OFC:

MWISB

DDMS

DDRSR

DSP:D

QTE

SFST:RIOB

NAME:

PBrochman*

MShaffer*

SMorris [CE]*

RCorreia*

KAzariah-Kribbs*

DPstrak*

DATE:

08/13/08

08/15/08

08/18/08

08/20/08

09/09/08

08/26/08

OFC:

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NAME:

APersinko

[DWS]*

PHabighorst*

RTurtil*

JGiitter*

CCarpenter [RB]*

JZorn*

DATE:

08/29/08

08/26/08

08/24/08

09/02/08

09/02/08

10/06/08

OFC:

OGC:CRA

NRR:PMDA

OIS

FSME:MSEAB

LA:PGCB

PGCB

NAME:

MSmith

LHill*

MJenney*

AMcIntosh*

CHawes*

AMarkley*

DATE:

09/ /08

10/07/08

10/14/08

10/24/08

11/05/08

11/05/08

OFC:

PGCB:BC

SFST:D

FCSS:D

DWMEP:D

DSER:D

DRIP:D

NAME:

MMurphy

EWBrach

DDorman

LCamper

SFlanders

TMcGinty

DATE:

12/19/08

12/5/08

12/11/08

12/18/08

12/19/08

12/19/08

OFFICIAL RECORD COPY

Enclosure

RIS 2008-10, Supp. 1

Page 1 of 1

List of Recently Issued FSME Generic Communications

Date

GC No.

Subject

Addressees

05/13/08

RIS-2008-10

Notice Regarding Forthcoming

Federal Firearms Background

Checks

All NRC licensees, certificate holders, and

applicants for a license or certificate of

compliance who use armed security

personnel as part of their physical

protection system and security

organization. All Radiation Control Program

Directors and State Liaison Officers.

06/16/08

RIS-2008-13

Status and Plans for Implementation

of NRC Regulatory Authority for

Certain Naturally Occurring and

Accelerator-Produced Radioactive

Material

All NRC materials licensees. All Radiation

Control Program Directors and State

Liaison Officers. The NRCs Advisory

Committee on the Medical Uses of

Isotopes

07/18/08

RIS-2008-17

Voluntary Security Enhancements

for Self-Contained Irradiators

Containing Cesium Chloride

Sources

All NRC materials licensees authorized to

possess self-contained irradiators

containing cesium chloride (CsCl). All

Agreement State Radiation Control

Program Directors and State Liaison

Officers. The NRCs Advisory Committee

on the Medical Uses of Isotopes.

10/03/08

RIS-2008-23

The Global Threat Reduction

Initiative (GTRI) Domestic Threat

Reduction Program & Federally

Funded Voluntary Security

Enhancements For High-Risk

Radiological Material

All NRC Materials Licensees authorized to

possess Category 1 or Category 2

quantities of radioactive materials. All

Agreement State Radiation Control

Program Directors and State Liaison

Officers. The NRCs Advisory Committee

on the Medical Uses of Isotopes

10/03/08

RIS-2008-24

Security Responsibilities of Service

Providers and Client Licensees

All NRC licensees that hire service

providers to install, service, repair,

maintain, relocate, exchange, or transport

radioactive materials in quantities of

concern, and service provider licensees.

All Agreement State Radiation Control

Program Directors and State Liaison

Officers

05/16/08

IN-2008-03

Precautions to Take Before Sharing

Sensitive Security-Related

Information

All NRC licensees who are implementing

the NRCs order imposing increased

controls (IC Order) or implementing IC

requirements by license condition. All

Agreement State Radiation Control

Program Directors and State Liaison

Officers

Note: This list contains the six most recently issued generic communications, issued by the Office of

Federal and State Materials and Environmental Management Programs (FSME). A full listing of all

NRC generic communications may be viewed on the NRCs public Web site at the following address:

http://www.nrc.gov/reading-rm/doc-collections/gen-comm/index.html.