ML082340897
| 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
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
(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
(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
(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:
DWMEP:RDB
FCSS:FMB
DILR:ILB
DOLR:D
OGC:NLO
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
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
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
Voluntary Security Enhancements
for Self-Contained Irradiators
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
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
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
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.