[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Notices]
[Pages 65220-65231]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26299]

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NUCLEAR REGULATORY COMMISSION

[NRC-2012-0257; EA-12-062]

Certain Licensees Requesting Unescorted Access to Radioactive 
Material; Order Imposing Trustworthiness and Reliability Requirements 
for Unescorted Access to Certain Radioactive Material (Effective 
Immediately)

I

    The Licensee identified in Attachment 1 \1\ to this Order holds a 
license issued by an Agreement State, in accordance with the Atomic 
Energy Act (AEA) of 1954, as amended. The license authorizes it to 
perform services on devices containing certain radioactive material for 
customers licensed by the U.S. Nuclear Regulatory Commission (NRC) or 
an Agreement State to possess and use certain quantities of the 
radioactive materials listed in Attachment 2 to this Order. Commission 
regulations at 10 CFR 20.1801 or equivalent Agreement State regulations 
require Licensees to secure, from unauthorized removal or access, 
licensed materials that are stored in controlled or unrestricted areas. 
Commission regulations at 10 CFR 20.1802 or equivalent Agreement State 
regulations require Licensees to control and maintain constant 
surveillance of licensed material that is in a controlled or 
unrestricted area and that is not in storage.
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    \1\ Attachment 1 contains sensitive information and will not be 
released to the public.
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II

    Subsequent to the terrorist events of September 11, 2001, the NRC 
issued immediately effective security Orders to NRC and Agreement State 
Licensees under the Commission's authority to protect the common 
defense and security of the nation. The Orders required certain 
manufacturing and distribution (M&D) Licensees to implement Additional 
Security Measures (ASMs) for the radioactive materials listed in 
Attachment 2 to this Order (the radionuclides of concern), to 
supplement the existing regulatory requirements. The ASMs included 
requirements for determining the trustworthiness and reliability of 
individuals that require unescorted access to the radionuclides of 
concern. Section 652 of the Energy Policy Act of 2005, which became law 
on August 8, 2005, amended Section 149 of the AEA to require 
fingerprinting and a Federal Bureau of Investigation (FBI) 
identification and criminal history records check for ``any individual 
who is permitted unescorted access to radioactive materials or other 
property subject to regulation by the Commission that the Commission 
determines to be of such significance to the public health and safety 
or the common defense and security as to warrant fingerprinting and 
background checks.'' Section 149 of the AEA also requires that ``all 
fingerprints obtained by a Licensee or applicant* * *shall be submitted 
to the Attorney General of the United States through the Commission for 
identification and a criminal history records check.'' As a result, the 
trustworthiness and reliability requirements of the ASMs were updated 
and the M&D Licensees were issued additional Orders imposing the new 
fingerprinting requirements.
    In late 2005, the NRC and the Agreement States began issuing 
Increased Controls (IC) Orders or other legally binding requirements to 
Licensees who are authorized to possess the radionuclides of concern. 
Paragraph IC 1.c of the IC requirements stated that ``service providers 
shall be escorted unless determined to be trustworthy and reliable by 
an NRC-required background investigation as an employee of a 
Manufacturing and Distribution Licensee.'' Starting in December 2007, 
the NRC and the Agreement States began issuing additional Orders or 
other legally binding requirements to the IC Licensees, imposing the 
new fingerprinting requirements. In the December 2007 Fingerprinting 
Order, Paragraph IC 1.c of the IC requirements was superseded by the 
requirement that ``Service provider Licensee employees shall be 
escorted unless determined to be trustworthy and reliable by an NRC-
required background investigation.'' However, NRC did not require 
background investigations for non-M&D service provider Licensees. 
Consequently, only service representatives of certain M&D Licensees may 
be granted unescorted access to the radionuclides of concern at an IC 
Licensee facility, even though non-M&D service provider Licensees 
provide similar services and have the same degree of knowledge of the 
devices they service as M&D Licensees. To maintain appropriate access 
control to the radionuclides of concern, and to allow M&D Licensees and 
non-M&D service provider Licensees to have the same level of access at 
customers' facilities, NRC is imposing trustworthiness and reliability 
requirements for unescorted access to radionuclides of concern, as set 
forth in this Order. These requirements apply to non-M&D service 
provider Licensees that request and have a need for unescorted access 
by their representatives to the radionuclides of concern at IC Licensee 
facilities. These trustworthiness and reliability requirements are 
equivalent to the requirements for M&D Licensees who perform services 
requiring unescorted access to the radionuclides of concern.
    In order to provide assurance that non-M&D service provider 
Licensees are implementing prudent measures to achieve a consistent 
level of protection for service providers requiring unescorted access 
to the radionuclides of concern at IC Licensee facilities, the Licensee 
identified in Attachment 1 to this Order shall implement the 
requirements of this Order. In addition, pursuant to 10 CFR 2.202, 
because of potentially significant adverse impacts associated with a 
deliberate malevolent act by an individual with unescorted

[[Page 65221]]

access to the radionuclides of concern, I find that the public health, 
safety, and interest require this Order to be effective immediately.

III

    Accordingly, pursuant to Sections 81, 149, 161b, 161i, 161o, 182, 
and 186 of the Atomic Energy Act of 1954, as amended, and the 
Commission's regulations in 10 CFR 2.202, 10 CFR Parts 20, 30 and 33, 
it is hereby ordered, effective immediately, that the licensee 
identified in attachment 1 to this order comply with the requirements 
set forth in this order.
    A.1. The Licensee shall establish and maintain a fingerprinting 
program that meets the requirements of Attachment 3 to this Order for 
individuals that require unescorted access to the radionuclides of 
concern. The Licensee shall complete implementation of the requirements 
of Attachment 3 to this Order within one hundred eighty (180) days of 
the date of this Order, or before providing written verification to 
another Licensee subject to the IC requirements, or attesting to or 
certifying the trustworthiness and reliability of a service provider 
for unescorted access to the radionuclides of concern at a customer's 
facility.
    A.2. Within ninety (90) days of the date of this Order, the 
Licensee shall designate a ``Reviewing Official'' for determining 
unescorted access to the radioactive materials as listed in Attachment 
2 to this Order by other individuals. The designated Reviewing Official 
shall be determined to be trustworthy and reliable by the Licensee in 
accordance with the requirements described in Attachment 3 to this 
Order and must be authorized to have unescorted access to the 
radioactive materials listed in Attachment 2 to this Order as part of 
his or her job duties.
    A.3. Fingerprints for unescorted access need not be taken if a 
designated Reviewing Official is relieved from the fingerprinting 
requirement by 10 CFR 73.61, or has been favorably adjudicated by a 
U.S. Government program involving fingerprinting and a FBI 
identification and criminal history records check \2\ within the last 
five (5) years, or for any person who has an active Federal security 
clearance (provided in the latter two cases that they make available 
the appropriate documentation \3\). The Licensee may provide, for NRC 
review, written confirmation from the agency/employer which granted the 
Federal security clearance or reviewed the FBI identification and 
criminal history records results based upon a fingerprint 
identification check. The NRC will determine whether, based on the 
written confirmation, the designated Reviewing Official may have 
unescorted access to the radioactive materials listed in Attachment 2 
to this Order, and therefore, be permitted to serve as the Licensee's 
Reviewing Official.\4\
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    \2\ Examples of such programs include (1) National Agency Check, 
(2) Transportation Worker Identification Credentials in accordance 
with 49 CFR Part 1572, (3) Bureau of Alcohol Tobacco Firearms and 
Explosives background checks and clearances in accordance with 27 
CFR Part 555, (4) Health and Human Services security risk 
assessments for possession and use of select agents and toxins in 
accordance with 42 CFR Part 73, and (5) Hazardous Material security 
threat assessment for hazardous material endorsement to commercial 
drivers license in accordance with 49 CFR Part 1572, Customs and 
Border Patrol's Free and Secure Trade (FAST) Program. The FAST 
program is a cooperative effort between the Bureau of Customs and 
Border Patrol and the governments of Canada and Mexico to coordinate 
processes for the clearance of commercial shipments at the U.S.-
Canada and U.S.-Mexico borders. Participants in the FAST program, 
which requires successful completion of a background records check, 
may receive expedited entrance privileges at the northern and 
southern borders.
    \3\ This documentation must allow the NRC or NRC-approved 
Reviewing Official to verify that the individual has fulfilled the 
unescorted access requirements of Section 149 of the AEA by 
submitting to fingerprinting and a FBI identification and criminal 
history records check.
    \4\ The NRC's determination of this individual's unescorted 
access to the radionuclides of concern in accordance with the 
process described in Enclosure 4 to the transmittal letter of this 
Order is an administrative determination that is outside the scope 
of this Order.
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    A.4. A designated Reviewing Official may not review the results 
from the FBI identification and criminal history records checks or make 
unescorted access determinations until the NRC has approved the 
individual as the Licensee's Reviewing Official.
    A.5. The NRC will determine whether this individual (or any 
subsequent Reviewing Official) may have unescorted access to the 
radionuclides of concern, and therefore, will be permitted to serve as 
the Licensee's Reviewing Official. The NRC-approved Reviewing Official 
shall be the recipient of the results of the FBI identification and 
criminal history records check of the other Licensee employees 
requiring unescorted access to the radioactive materials listed in 
Attachment 2 to this Order, and shall control such information as 
specified in the ``Protection of Information'' section of Attachment 3 
to this Order.
    A.6. The NRC-approved Reviewing Official shall determine whether an 
individual may have unescorted access to radioactive materials that 
equal or exceed the quantities in Attachment 2 to this Order, in 
accordance with the requirements described in Attachment 3 to this 
Order.
    B. Prior to requesting fingerprints from a Licensee employee, a 
copy of this Order shall be provided to that person.
    C.1. The Licensee shall, in writing, within twenty-five (25) days 
of the date of this Order, notify the Commission (1) if it is unable to 
comply with any of the requirements described in this Order, including 
Attachment 3 to this Order, (2) if compliance with any of the 
requirements is unnecessary in its specific circumstances, or (3) if 
implementation of any of the requirements would cause the Licensee to 
be in violation of the provisions of any Commission or Agreement State 
regulation or its license. The notification shall provide the 
Licensee's justification for seeking relief from or variation of any 
specific requirement.
    C.2. The Licensee shall complete implementation of the requirements 
of Attachment 3 to this Order within one hundred eighty (180) days of 
the date of this Order.
    C.3. The Licensee shall report to the Commission when they have 
achieved full compliance with the requirements described in Attachment 
3 to this Order. The report shall be made within twenty-five (25) days 
after full compliance has been achieved.
    C.4. If during the implementation period of this Order, the 
Licensee is unable, due to circumstances beyond its control, to meet 
the requirements of this Order by [December 3, 2012], the Licensee 
shall request, in writing, that the Commission grant an extension of 
time to implement the requirements. The request shall provide the 
Licensee's justification for seeking additional time to comply with the 
requirements of this Order.
    C.5. Licensees shall notify the NRC's Headquarters Operations 
Office at 301-816-5100 within 24 hours if the results from a FBI 
identification and criminal history records check indicate that an 
individual is identified on the FBI's Terrorist Screening Data Base.
    Licensee responses to C.1, C.2., C.3., and C.4. above shall be 
submitted in writing to the Director, Office of Federal and State 
Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555. Licensee responses shall 
be marked as ``Security-Related Information--Withhold Under 10 CFR 
2.390.''
    The Director, Office of Federal and State Materials and 
Environmental Management Programs, may, in writing, relax or rescind 
any of the above conditions upon demonstration of good cause by the 
Licensee.

[[Page 65222]]

IV

    In accordance with 10 CFR 2.202, the Licensee must, and any other 
person adversely affected by this Order may, submit an answer to this 
Order within twenty-five (25) days of the date of this Order. In 
addition, the Licensee and any other person adversely affected by this 
Order may request a hearing of this Order within twenty-five (25) days 
of the date of the Order. Where good cause is shown, consideration will 
be given to extending the time to request a hearing. A request for 
extension of time must be made, in writing, to the Director, Division 
of Materials Safety and State Agreements, Office of Federal and State 
Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, and include a statement of 
good cause for the extension.
    The answer may consent to this Order. If the answer includes a 
request for a hearing, it shall, under oath or affirmation, 
specifically set forth the matters of fact and law on which the 
Licensee relies and the reasons as to why the Order should not have 
been issued. If a person other than the Licensee requests a hearing, 
that person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d).
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 10 
days prior to the filing deadline, the participant should contact the 
Office of the Secretary by email at hearing.docket@nrc.gov, or by 
telephone at 301-415-1677, to request (1) a digital identification (ID) 
certificate, which allows the participant (or its counsel or 
representative) to digitally sign documents and access the E-Submittal 
server for any proceeding in which it is participating; and (2) advise 
the Secretary that the participant will be submitting a request or 
petition for hearing (even in instances in which the participant, or 
its counsel or representative, already holds an NRC-issued digital ID 
certificate). Based upon this information, the Secretary will establish 
an electronic docket for the hearing in this proceeding if the 
Secretary has not already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on the NRC's public Web site at http://www.nrc.gov/site-help
/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in the NRC's ``Guidance for 
Electronic Submission,'' which is available on the NRC's public Web 
site at http://www.nrc.gov/site-help/e-submittals.html. Participants 
may attempt to use other software not listed on the Web site, but 
should note that the NRC's E-Filing system does not support unlisted 
software, and the NRC Meta System Help Desk will not be able to offer 
assistance in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through the Electronic Information Exchange System, 
users will be required to install a Web browser plug-in from the NRC's 
Web site. Further information on the Web-based submission form, 
including the installation of the Web browser plug-in, is available on 
the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC's public Web site at http://www.nrc.gov/site-help/
e-submittals.html. A filing is considered complete at the time the 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an email notice confirming receipt of the document. The 
E-Filing system also distributes an email notice that provides access 
to the document to the NRC's Office of the General Counsel and any 
others who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the NRC's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC's public 
Web site at http://www.nrc.gov/site-help/e-submittals.html, by email to 
MSHD.Resource@nrc.gov, or by a toll-free call to 1-866-672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 
20852, Attention: Rulemaking and Adjudications Staff. Participants 
filing a document in this manner are responsible for serving the 
document on all other participants. Filing is considered complete by 
first-class mail as of the time of deposit in the mail, or by courier, 
express mail, or expedited delivery service upon depositing the 
document with the provider of the service. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in the 
NRC's electronic hearing docket which is available to the public at 
http://ehd1.nrc.gov/ehd/, unless excluded

[[Page 65223]]

pursuant to an order of the Commission, or the presiding officer. 
Participants are requested not to include personal privacy information, 
such as social security numbers, home addresses, or home phone numbers 
in their filings, unless an NRC regulation or other law requires 
submission of such information. With respect to copyrighted works, 
except for limited excerpts that serve the purpose of the adjudicatory 
filings and would constitute a Fair Use application, participants are 
requested not to include copyrighted materials in their submission.
    If a hearing is requested by the Licensee or a person whose 
interest is adversely affected, the Commission will issue an Order 
designating the time and place of any hearing. If a hearing is held the 
issue to be considered at such hearing shall be whether this Order 
should be sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to 
requesting a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the ground that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere suspicion, 
unfounded allegations, or error.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, the provisions 
specified in Section III above shall be (final twenty-five (25) days) 
from the date of this Order without further order or proceedings. If an 
extension of time for requesting a hearing has been approved, the 
provisions specified in Section III shall be final when the extension 
expires if a hearing request has not been received. An answer or a 
request for hearing shall not stay the immediate effectiveness of this 
order.

    Dated this 16th day of October, 2012.

    For the Nuclear Regulatory Commission.
Mark A. Satorius,
Director, Office of Federal and State Materials and Environmental 
Management Programs.
Attachments:
1. Applicable Materials Licensee
2. Table 1: Radionuclides of Concern
3. Requirements for Service Provider Licensees Providing Written 
VerificationAttesting to or Certifying the Trustworthiness and 
Reliability of Service Providers forUnescorted Access to Certain 
Radioactive Material at Customer Facilities, including Requirements for 
Fingerprinting and Criminal History Checks

Attachment 1: Applicable Materials Licensee Redacted

Attachment 2: Order Imposing Trustworthiness and Reliability 
Requirements for Unescorted Access to Certain Radioactive Material

                    Table 1--Radionuclides of Concern
------------------------------------------------------------------------
                                  Quantity of concern     Quantity of
          Radionuclide                 \1\ (TBq)       concern \2\ (Ci )
------------------------------------------------------------------------
Am-241..........................  0.6................                 16
Am-241/Be.......................  0.6................                 16
Cf-252..........................  0.2................                5.4
Cm-244..........................  0.5................                 14
Co-60...........................  0.3................                8.1
Cs-137..........................  1..................                 27
Gd-153..........................  10.................                270
Ir-192..........................  0.8................                 22
Pm-147..........................  400................             11,000
Pu-238..........................  0.6................                 16
Pu-239/Be.......................  0.6................                 16
Ra-226 \3\......................  0.4................                 11
Se-75...........................  2..................                 54
Sr-90 (Y-90)....................  10.................                270
Tm-170..........................  200................              5,400
Yb-169..........................  3..................                 81
Combinations of radioactive       See Footnote Below
 materials listed above \4\.       \5\.
------------------------------------------------------------------------
\1\ The aggregate activity of multiple, collocated sources of the same
  radionuclide should be included when the total activity equals or
  exceeds the quantity of concern.
\2\ The primary values used for compliance with this Order are TBq. The
  curie (Ci) values are rounded to two significant figures for
  informational purposes only.
\3\ The Atomic Energy Act, as amended by the Energy Policy Act of 2005,
  authorizes NRC to regulate Ra-226 and NRC is in the process of
  amending its regulations for discrete sources of Ra-226.
\4\ Radioactive materials are to be considered aggregated or collocated
  if breaching a common physical security barrier (e.g., a locked door
  at the entrance to a storage room) would allow access to the
  radioactive material or devices containing the radioactive material.
\5\ If several radionuclides are aggregated, the sum of the ratios of
  the activity of each source, i of radionuclide, n, A(i,n), to the
  quantity of concern for radionuclide n, Q(n), listed for that
  radionuclide equals or exceeds one. [(aggregated source activity for
  radionuclide A) / (quantity of concern for radionuclide A)] +
  [(aggregated source activity for radionuclide B) / (quantity of
  concern for radionuclide B)] + etc.* * * >1.

Guidance for Aggregation of Sources

    NRC supports the use of the International Atomic Energy 
Association's (IAEA) source categorization methodology as defined in 
IAEA Safety Standards Series No. RS-G-1.9, ``Categorization of 
Radioactive Sources,'' (2005) (see http://www-pub.iaea.org/MTCD/
publications/PDF/Pub1227_web.pdf) and as endorsed by the agency's 
Code of Conduct for the Safety and Security of Radioactive Sources, 
January 2004 (see http://www-pub.iaea.org/MTCD/publications/PDF/
Code-2004_web.pdf). The Code defines a three-tiered source 
categorization scheme. Category 1 corresponds to the largest source 
strength (equal to or greater than 100 times the quantity of concern 
values listed in Table 1) and Category 3, the smallest (equal or 
exceeding one-tenth the quantity of concern values listed in Table 
1. Additional security measures apply to sources that are equal to 
or greater than the quantity of concern values listed in Table 1, 
plus aggregations of smaller sources that are equal to or greater 
than the quantities in Table 1. Aggregation only applies to sources 
that are collocated.
    Licensees who possess individual sources in total quantities 
that equal or exceed the Table 1 quantities are required to 
implement additional security measures. Where there are many small 
(less than the quantity of concern values) collocated sources whose 
total aggregate activity equals or exceeds the Table 1 values, 
licensees are to implement additional security measures.

[[Page 65224]]

    Some source handling or storage activities may cover several 
buildings, or several locations within specific buildings. The 
question then becomes, ``When are sources considered collocated for 
purposes of aggregation''? For purposes of the additional controls, 
sources are considered collocated if breaching a single barrier 
(e.g., a locked door at the entrance to a storage room) would allow 
access to the sources. Sources behind an outer barrier should be 
aggregated separately from those behind an inner barrier (e.g., a 
locked source safe inside the locked storage room). However, if both 
barriers are simultaneously open, then all sources within these two 
barriers are considered to be collocated. This logic should be 
continued for other barriers within or behind the inner barrier.
    The following example illustrates the point: A lockable room has 
sources stored in it. Inside the lockable room, there are two 
shielded safes with additional sources in them. Inventories are as 
follows:
    The room has the following sources outside the safes: Cf-252, 
0.12 TBq (3.2 Ci); Co-60, 0.18 TBq (4.9 Ci), and Pu-238, 0.3 TBq 
(8.1 Ci). Application of the unity rule yields: (0.12 / 0.2) + (0.18 
/ 0.3) + (0.3 / 0.6) = 0.6 + 0.6 + 0.5 = 1.7. Therefore, the sources 
would require additional security measures.
    Shielded safe 1 has a 1.9 TBq (51 Ci) Cs-137 source and 
a 0.8 TBq (22 Ci) Am-241 source. In this case, the sources would 
require additional security measures, regardless of location, 
because they each exceed the quantities in Table 1.
    Shielded safe 2 has two Ir-192 sources, each having an 
activity of 0.3 TBq (8.1 Ci). In this case, the sources would not 
require additional security measures while locked in the safe. The 
combined activity does not exceed the threshold quantity 0.8 TBq (22 
Ci).
    Because certain barriers may cease to exist during source 
handling operations (e.g., a storage location may be unlocked during 
periods of active source usage), licensees should, to the extent 
practicable, consider two modes of source usage --``operations'' 
(active source usage) and ``shutdown'' (source storage mode). 
Whichever mode results in the greatest inventory (considering 
barrier status) would require additional security measures for each 
location.
    Use the following method to determine which sources of 
radioactive material require implementation of the Additional 
Security Measures:
     Include any single source equal to or greater than the 
quantity of concern in Table 1
     Include multiple collocated sources of the same 
radionuclide when the combined quantity equals or exceeds the 
quantity of concern
     For combinations of radionuclides, include multiple 
collocated sources of different radionuclides when the aggregate 
quantities satisfy the following unity rule: [(amount of 
radionuclide A) / (quantity of concern of radionuclide A)] + 
[(amount of radionuclide B) / (quantity of concern of radionuclide 
B)] + etc. * * * >= 1

Attachment 3: Requirements for Service Provider Licensees Providing 
Written Verification Attesting to or Certifying the Trustworthiness and 
Reliability of Service Providers for Unescorted Access to Certain 
Radioactive Material at Customer Facilities, Including Requirements for 
Fingerprinting and Criminal History Records Checks

A. General Requirements

    Licensees subject to the provisions of this Order shall comply 
with the requirements of this attachment. The term ``certain 
radioactive material'' means the radionuclides in quantities equal 
to or greater than the quantities listed in Attachment 2 to this 
Order.
    1. The Licensee shall provide the customer's facility written 
verification attesting to or certifying the trustworthiness and 
reliability of an individual as a service provider only for 
employees the Licensee has approved in writing (see requirement A.3 
below). The Licensee shall request unescorted access to certain 
radioactive material at customer licensee facilities only for 
approved service providers that require the unescorted access in 
order to perform a job duty.
    2. The trustworthiness, reliability, and true identity of a 
service provider shall be determined based on a background 
investigation. The background investigation shall address at least 
the past three (3) years, and as a minimum, include fingerprinting 
and a Federal Bureau of Investigation (FBI) criminal history records 
check as required in Section B, verification of employment history, 
education, and personal references. If a service provider's 
employment has been less than the required three (3) year period, 
educational references may be used in lieu of employment history.
    3. The Licensee shall document the basis for concluding that 
there is reasonable assurance that a service provider requiring 
unescorted access to certain radioactive material at a customer 
facility is trustworthy and reliable, and does not constitute an 
unreasonable risk for unauthorized use of the radioactive material. 
The Licensee shall maintain a list of service providers approved for 
unescorted access to certain radioactive material.
    4. The Licensee shall retain documentation regarding the 
trustworthiness and reliability of approved service providers for 
(3) years after the individual no longer requires unescorted access 
to certain radioactive material associated with the Licensee's 
activities.
    5. Each time the Licensee revises the list of approved service 
providers (see requirement 3 above), the Licensee shall retain the 
previous list for three (3) years after the revision.
    6. The Licensee shall provide to a customer written 
certification for each service provider for whom unescorted access 
to certain radioactive material at the customer's facility is 
required and requested. The written certification shall be dated and 
signed by the Reviewing Official. A new written certification is not 
required if an individual service provider returns to the customer 
facility within three (3) years, provided the customer has retained 
the prior certification.

B. Specific Requirements Pertaining to Fingerprinting and Criminal 
History Records Checks

    1. The Licensee shall fingerprint each service provider to be 
approved for unescorted access to certain radioactive materials 
following the procedures outlined in Enclosure 3 of the transmittal 
letter. The Licensee shall review and use the information received 
from the FBI identification and criminal history records check and 
ensure that the provisions contained in the subject Order and this 
attachment are satisfied.
    2. The Licensee shall notify each affected individual that the 
fingerprints will be used to secure a review of his/her criminal 
history record and inform the individual of the procedures for 
revising the record or including an explanation in the record, as 
specified in the ``Right to Correct and Complete Information'' 
section of this attachment.
    3. Fingerprints for unescorted access need not be taken if an 
employed individual (e.g., a Licensee employee, contractor, 
manufacturer, or supplier) is relieved from the fingerprinting 
requirement by 10 CFR 73.61, or any person who has been favorably-
decided by a U.S. Government program involving fingerprinting and an 
FBI identification and criminal history records check (e.g., 
National Agency Check, Transportation Worker Identification 
Credentials in accordance with 49 CFR Part 1572, Bureau of Alcohol 
Tobacco Firearms and Explosives background checks and clearances in 
accordance with 27 CFR Part 555, Health and Human Services security 
risk assessments for possession and use of select agents and toxins 
in accordance with 42 CFR Part 73, Hazardous Material security 
threat assessment for hazardous material endorsement to commercial 
drivers license in accordance with 49 CFR Part 1572, Customs and 
Border Patrol's Free and Secure Trade Program \5\) within the last 
five (5) years, or any person who has an active Federal Security 
Clearance (provided in the latter two cases that they make available 
the appropriate documentation \6\). Written confirmation from the 
Agency/employer which granted the Federal Security Clearance or 
reviewed the FBI criminal history records results based upon a 
fingerprint identification check must be provided. The Licensee must 
retain this documentation for a period of three (3) years from the 
date the

[[Page 65225]]

individual no longer requires unescorted access to certain 
radioactive material associated with the Licensee's activities.
---------------------------------------------------------------------------

    \5\ The FAST program is a cooperative effort between the Bureau 
of Customs and Border Patrol and the governments of Canada and 
Mexico to coordinate processes for the clearance of commercial 
shipments at the U.S.-Canada and U.S.-Mexico borders. Participants 
in the FAST program, which requires successful completion of a 
background records check, may receive expedited entrance privileges 
at the northern and southern borders.
    \6\ This documentation must allow the Reviewing Official to 
verify that the individual has fulfilled the unescorted access 
requirements of Section 149 of the AEA by submitting to 
fingerprinting and an FBI identification and criminal history 
records check.
---------------------------------------------------------------------------

    4. All fingerprints obtained by the Licensee pursuant to this 
Order must be submitted to the Commission for transmission to the 
FBI.
    5. The Licensee shall review the information received from the 
FBI and consider it, in conjunction with the trustworthiness and 
reliability requirements of Section A of this attachment, in making 
a determination whether to approve and certify the individual for 
unescorted access to certain radioactive materials.
    6. The Licensee shall use any information obtained as part of a 
criminal history records check solely for the purpose of determining 
an individual's suitability for unescorted access to certain 
radioactive materials.
    7. The Licensee shall document the basis for its determination 
whether to approve the individual for unescorted access to certain 
radioactive materials.

C. Prohibitions

    A Licensee shall not base a final determination to not provide 
certification for unescorted access to certain radioactive material 
for an individual solely on the basis of information received from 
the FBI involving: an arrest more than one (1) year old for which 
there is no information of the disposition of the case, or an arrest 
that resulted in dismissal of the charge or an acquittal.
    A Licensee shall not use information received from a criminal 
history check obtained pursuant to this Order in a manner that would 
infringe upon the rights of any individual under the First Amendment 
to the Constitution of the United States, nor shall the Licensee use 
the information in any way which would discriminate among 
individuals on the basis of race, religion, national origin, sex, or 
age.

D. Right to Correct and Complete Information

    Prior to any final adverse determination, the Licensee shall 
make available to the individual the contents of any criminal 
records obtained from the FBI for the purpose of assuring correct 
and complete information. Written confirmation by the individual of 
receipt of this notification must be maintained by the Licensee for 
a period of one (1) year from the date of the notification. If, 
after reviewing the record, an individual believes that it is 
incorrect or incomplete in any respect and wishes to change, 
correct, or update the alleged deficiency, or to explain any matter 
in the record, the individual may initiate challenge procedures. 
These procedures include either direct application by the individual 
challenging the record to the agency (i.e., law enforcement agency) 
that contributed the questioned information, or direct challenge as 
to the accuracy or completeness of any entry on the criminal history 
record to the Assistant Director, Federal Bureau of Investigation 
Identification Division, Washington, DC 20537-9700 (as set forth in 
28 CFR 16.30 through 16.34). In the latter case, the FBI forwards 
the challenge to the agency that submitted the data and requests 
that agency to verify or correct the challenged entry. Upon receipt 
of an Official communication directly from the agency that 
contributed the original information, the FBI Identification 
Division makes any changes necessary in accordance with the 
information supplied by that agency. The Licensee must provide at 
least ten (10) days for an individual to initiate an action 
challenging the results of an FBI identification and criminal 
history records check after the record is made available for his/her 
review. The Licensee may make a final unescorted access to certain 
radioactive material determination based upon the criminal history 
record only upon receipt of the FBI's ultimate confirmation or 
correction of the record. Upon a final adverse determination on 
unescorted access to certain radioactive material, the Licensee 
shall provide the individual its documented basis for denial. 
Unescorted access to certain radioactive material shall not be 
granted to an individual during the review process.

E. Protection of Information

    1. Each Licensee who obtains a criminal history record on an 
individual pursuant to this Order shall establish and maintain a 
system of files and procedures for protecting the record and the 
personal information from unauthorized disclosure.
    2. The Licensee may not disclose the record or personal 
information collected and maintained to persons other than the 
subject individual, his/her representative, or to those who have a 
need to access the information in performing assigned duties in the 
process of determining whether to verify the individual for 
unescorted access to certain radioactive material. No individual 
authorized to have access to the information may re-disseminate the 
information to any other individual who does not have a need-to-
know.
    3. The personal information obtained on an individual from a 
criminal history record check may be transferred to another Licensee 
if the Licensee holding the criminal history record check receives 
the individual's written request to re-disseminate the information 
contained in his/her file, and the gaining Licensee verifies 
information such as the individual's name, date of birth, social 
security number, sex, and other applicable physical characteristics 
for identification purposes.
    4. The Licensee shall make criminal history records, obtained 
under this section, available for examination by an authorized 
representative of the NRC to determine compliance with the 
regulations and laws.
    5. The Licensee shall retain all fingerprints and criminal 
history records from the FBI, or a copy if the individual's file has 
been transferred:
    a. for three (3) years after the individual no longer requires 
unescorted access, or
    b. for three (3) years after unescorted access to certain 
radioactive material was denied.

After the required three (3) year period, these documents shall be 
destroyed by a method that will prevent reconstruction of the 
information in whole or in part.

Implementing Guidance for Service Provider Licensees That are not 
Manufacturers or Distributors

A. Initial Actions

    1. The U.S. Nuclear Regulatory Commission (NRC) issued a 
Regulatory Issue Summary (RIS 2007-15) informing all NRC licensees 
that are non-manufacturer and distributor (non-M&D) service 
providers, and all Agreement State Radiation Control Program 
Directors and State Liaison Officers about the non-M&D Service 
Provider Order.
    2. Each non-M&D service provider licensee should review the RIS 
and determine if a need exists for its service representatives to 
have unescorted access to radioactive material in quantities of 
concern at client facilities.
    3. If the licensee determines that unescorted access is required 
the licensee must request, in writing, that NRC issue the Order.

B. NRC Issues Order in Response to the Licensee's Request

    1. After receiving the Order, the licensee selects a candidate 
Reviewing Official. As part of the selection, the licensee must 
perform a trustworthiness and reliability review per the 
requirements in Attachment 3 of the Order. Note: the Reviewing 
Official MUST BE an individual that requires unescorted access to 
radioactive material in quantities of concern as part of his/her job 
duties.
    2. The licensee designates the Reviewing Official to NRC by 
submitting the individual's fingerprints and processing fee.
    3. NRC processes the fingerprints through the Federal Bureau of 
Investigation, and reviews the results of the criminal history 
investigation. If the investigation does not find disqualifying 
information, NRC will authorize the designated individual to serve 
as the licensees Reviewing Official.
    4. The Reviewing Official performs the trustworthiness and 
reliability reviews for other licensee service representatives that 
require unescorted access to radioactive material in quantities of 
concern. The Reviewing Official must submit the fingerprints of the 
service representatives to NRC and receive the criminal history 
investigation results. The reviews must be performed per the 
requirements in Attachment 3 of the Order and Enclosure 4 of the 
transmittal letter. Based on the information and investigation 
results, the Reviewing Official determines if the service 
representative is trustworthy and reliable and that the service 
representative may be granted unescorted access to radioactive 
materials in quantities of concern.
    5. The Reviewing Official prepares, on company letterhead, an 
attestation or certification that indicates the service 
representative (by name) has been determined to be trustworthy and 
reliable in accordance with the NRC security Order for non-M&D 
Service Providers. The Reviewing Official signs and dates this 
document.
    6. Client licensees may accept the signed and dated document in 
lieu of conducting their own trustworthiness and reliability review 
of the named service representative.

[[Page 65226]]

C. NRC Actions During Future Inspections

    1. During future inspections, both the service provider licensee 
and the client licensee will be audited to assure compliance with 
the Order requirements and the implementation process.

Questions and Answers With Regards to Fingerprinting and FBI Criminal 
History Records Checks

    1. Information on how I would be required to respond to this 
notice when I receive it does not appear to be included with the 
implementing guidance? Will my response include sensitive 
information?
    The information on how to respond to the NRC Order requiring 
implementation of the fingerprinting requirements is contained in 
the Order itself. The NRC Orders are not considered sensitive 
information. Examples of previous Orders can be found by searching 
ADAMS or NRC's Web site.
    Licensee responses to the Order are considered sensitive 
information and should be marked appropriately at the top of the 
page with ``Security Related Information--Withhold Under 10 CFR 
2.390.''
    2. Does a National Agency Check (NAC) satisfy the provisions of 
the Order?
    If the NAC has been conducted within the past five (5) calendar 
years and the employee can provide documentation of favorable 
results to the NRC or licensee's Reviewing Official, as appropriate, 
then this would satisfy the provisions of the Order.
    3. Can the Human Resources department be designated as the 
licensee's Reviewing Official to review criminal history records? Do 
they have to be fingerprinted to be able to review and approve 
others?
    The requirements for fingerprinting and criminal history records 
should be incorporated into the licensee's current program of 
reviewing and approving background information of its employees. The 
duties of a Reviewing Official can be delegated to the Human 
Resources department or any other appropriate department as long as 
the individual(s) involved in the determining of an employee's 
trustworthiness and reliability have been determined themselves to 
be trustworthy and reliable by the licensee, are permitted to have 
unescorted access to radioactive material in quantities of concern 
as part of their job duties, and have been approved by the NRC to be 
the licensee's Reviewing Official.
    4. What is a Reviewing Official? Who can be a Reviewing 
Official?
    A Reviewing Official is an NRC-approved individual that requires 
unescorted access to radioactive material in quantities of concern 
as part of his/her job duties, and who shall make the 
trustworthiness and reliability determinations of other Licensee 
employees to determine whether the individual may have, or continue 
to have, unescorted access.
    5. I was only provided a few fingerprint cards, where can I get 
more?
    You can request more fingerprint cards by writing to the Office 
of Information Services, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, by calling (301) 492-3531, or by email to 
forms@nrc.gov.
    6. What information do I need to include on the card?
    Incomplete fingerprint cards will not be processed and will be 
returned to the licensee. Licensees need to include the following 
information on each card:

a. Last name, first name, middle name
b. Signature of person being fingerprinted
c. Residence of person being fingerprinted
d. Date
e. Signature of official taking the fingerprints
f. Employer and address
g. Reason for being fingerprinted
h. Aliases
i. Citizenship
j. Social security number and any of the other corresponding numbers 
requested on the card if applicable
k. Date of birth
l. Place of birth
m. Sex
n. Race
o. Height
p. Weight
q. Eye color
r. Hair color
    7. I was able to get more fingerprint cards from my local law 
enforcement agency, can I use those instead?
    No, because of problems that have been experienced in the past 
with some of the cards.
    8. Who do I send my fingerprints to?
    A completed fingerprint card should be sent to: Director, 
Division of Facilities and Security, U.S. NRC, Two White Flint 
North, 11545 Rockville Pike, Rockville, MD 20852-2738, ATTN: 
Criminal History Program, Mail Stop TWB-05B32M.
    9. Is there a fee associated with the NRC processing the 
fingerprints?
    The current fee to process each fingerprint card is a $26.00 per 
card. Additional fees may be charged by the entity taking the 
fingerprints.
    10. What method of payment does the NRC accept?
    NRC's preferred method of payment is electronic payment through 
http://www.pay.gov. Please refer to the instructions (in Enclosure 
3) included with the transmittal letter of the Order for details on 
how to pay electronically. NRC also accepts checks, cashier checks 
or money orders made out to the U.S. Nuclear Regulatory Commission 
along with the submission of fingerprint cards. Fingerprint cards 
along with checks, cashier checks or money orders should be sent to: 
Director, Division of Facilities and Security, U.S. NRC, Two White 
Flint North, 11545 Rockville Pike, Rockville, MD 20852-2738, Attn: 
Criminal History Program, Mail Stop TWB-05B32M.
    11. When are licensees required to submit fingerprints to the 
NRC?
    Licensees are required to fingerprint and review the criminal 
history results for all materials quantities of concern to the NRC 
within 90 days after the Order is issued.
    12. Will guidance be provided on how to determine 
trustworthiness and reliability based on FBI identification and 
criminal history records checks?
    Guidance is included with the Order documents; however, it will 
ultimately be the decision of the licensee's Reviewing Official to 
determine whether an individual should be granted unescorted access 
to the radioactive material, based on the results of the criminal 
records history check, and the other trustworthiness and reliability 
requirements of the Order.
    13. My fingerprints have been returned several times as 
unclassifiable, can I get an extension to submit my fingerprints?
    On a rare case that a licensee needs additional time to 
implement the fingerprinting requirements beyond the implementation 
time, the NRC will consider granting extensions only on a case by 
case basis. Licensees must take the appropriate actions to minimize 
any potential impacts in delays from receiving the criminal history 
results from the NRC. In a rare case that an extension is needed, 
the request must be date-stamped before the deadline to implement 
the requirements and must include the licensee's justification as to 
why additional time is needed beyond the implementation period and 
the appropriate compensatory actions that will be implemented until 
the fingerprints are processed.
    14. What does unescorted access to the material mean?
    Unescorted access to the material means that an individual can 
exert some physical control over the material or device while they 
are alone.
    15. If I decide that based on a Federal criminal records history 
check one of my employees previously granted unescorted access 
should not have unescorted access to radioactive material what 
actions can I take?
    The licensee is ultimately responsible to determine the best 
course of action.
    16. Does the denial of unescorted access create legal liability 
for the licensee?
    The NRC acknowledges that employer liability potentially exists 
through the process for determining trustworthiness and reliability, 
just as employer liability potentially exists throughout the hiring 
process. A finding that results in denying someone employment may be 
actionable on the part of the employee/employee candidate, and this 
is no different.
    17. How far back do the criminal history record checks go? Can 
the NRC provide guidance on what types of information could be 
considered when granting unescorted access?
    The criminal history records check provides information on all 
arrests since the individual's eighteenth birthday. Guidance on 
criminal offenses that could be considered is included in Enclosure 
4 of the transmittal letter. However, the list of offenses is not 
inclusive. There may be additional offenses not listed in the 
guidance that the licensee wants to consider as part of unescorted 
access approval process. It is the licensee's ultimate business 
decision as to what criteria it uses for the bases of the 
trustworthiness and reliability determination.
    18. Is there a process to request an exemption from 
fingerprinting? Do employees that have been fingerprinted in the 
past need to be fingerprinted again?
    Fingerprints for unescorted access need not be taken if an 
employed individual (e.g., a Licensee employee, contractor, 
manufacturer, or supplier) is relieved from the fingerprinting 
requirement by 10 CFR 73.61,

[[Page 65227]]

or any person who has been favorably-decided by a U.S. Government 
program involving fingerprinting and an FBI identification and 
criminal history records check (e.g., National Agency Check, 
Transportation Worker Identification Credentials in accordance with 
49 CFR Part 1572, Bureau of Alcohol Tobacco Firearms and Explosives 
background checks and clearances in accordance with 27 CFR Part 555, 
Health and Human Services security risk assessments for possession 
and use of select agents and toxins in accordance with 42 CFR Part 
73, Hazardous Material security threat assessment for hazardous 
material endorsement to commercial drivers license in accordance 
with 49 CFR Part 1572, Customs and Border Patrol's Free and Secure 
Trade Program \7\) within the last five (5) years, or any person who 
has an active Federal Security Clearance (provided in the latter two 
cases that they make available the appropriate documentation).
    Written confirmation from the Agency/employer which granted the 
Federal security clearance or reviewed the FBI criminal history 
records results based upon a fingerprint identification check must 
be provided. The Licensee must retain this documentation for a 
period of three (3) years from the date the individual no longer 
requires unescorted access to certain radioactive material 
associated with the Licensee's activities.
---------------------------------------------------------------------------

    \7\ The FAST program is a cooperative effort between the Bureau 
of Customs and Border Patrol and the governments of Canada and 
Mexico to coordinate processes for the clearance of commercial 
shipments at the U.S.-Canada and U.S.-Mexico borders. Participants 
in the FAST program, which requires successful completion of a 
background records check, may receive expedited entrance privileges 
at the northern and southern borders.
---------------------------------------------------------------------------

    19. Is fingerprinting meant to replace the trustworthiness and 
reliability determination?
    No, fingerprinting is only one component of the trustworthiness 
and reliability determination. A trustworthiness and reliability 
determination should be based, at a minimum, by verifying employment 
history, education, personal references and a federal criminal 
history check. All four of these components need to be considered 
when making a trustworthiness and reliability determination.
    20. How will compliance with the fingerprinting component be 
verified?
    Compliance will be verified at the time the licensee's 
trustworthiness and reliability program is inspected by the NRC.
    21. Is there financial aid or funding available to assist in the 
implementation of the fingerprinting requirements? Will the 
licensees be compensated in any way?
    The NRC will not provide financial aid and there is no funding 
available to assist in the implementation of the fingerprinting 
requirements.
    22. Will there be a reevaluation period?
    At the moment there is no reevaluation period. The reevaluation 
of criminal history records will be addressed during the NRC's 
rulemaking process.
    23. The Order requires that the licensee shall provide under 
oath or affirmation a certification that the Reviewing Official is 
deemed trustworthy and reliable. What does it mean to submit 
documents to the NRC ``under oath or affirmation''?
    The requirement to submit documents to the NRC under oath or 
affirmation may be satisfied by using a notary public to 
authenticate oaths or affirmations and to certify that the 
information provided is correct and true. An alternate method for 
complying with the oath or affirmation requirement is presented in 
the United States Code, Title 28, Section 1746 (28 U.S.C. 1746). 
This method allows use of the following unsworn declaration to 
satisfy the oath or affirmation requirement:

I declare [or certify, verify, state] under penalty of perjury that 
the foregoing is true and correct.
Executed on [date] [Signature]

When applying this declaration, it must be used verbatim. Licensing 
documents accompanied by this unsworn declaration satisfy the 
requirement that such documents be submitted under oath or 
affirmation.

    24. Can additional employees (e.g., new hires or existing 
employees changing positions within the company who did NOT have 
unescorted access prior to the date of the Order) be granted 
unescorted access to radioactive materials quantities of concern 
prior to the establishment of a fingerprinting program and 
certification that the Reviewing Official is deemed trustworthy and 
reliable?
    No. Prior to being granted unescorted access to material, all 
additional employees the licensee identifies after the date of the 
Order as requiring unescorted access, must be determined to be 
trustworthy and reliable based upon the requirements of the Order 
and the review of their FBI identification and criminal history 
records. The Order also requires that within 180 days of the date of 
the Order that licensees establish a fingerprinting program and 
within 90 days of the date of the Order provide under oath or 
affirmation a certification that the Reviewing Official is deemed 
trustworthy and reliable by the licensee.
    Only after the Reviewing Official has been certified to be 
trustworthy and reliable by the licensee and approved by the NRC, 
can the Reviewing Official make trustworthiness and reliability 
determinations for any employee who requires unescorted access after 
the date of the Order. For administrative purposes, each submittal 
of fingerprints to the NRC should be accompanied by the name and 
address of the Reviewing Official to whom the criminal history 
records should be returned.
    25. Who can perform the task of fingerprinting for my employees?
    Licensees must have their fingerprints taken by an authorized 
official, such as a representative from a local law enforcement 
agency. However, an authorized official, for the purposes of taking 
fingerprints, could be available through private entities, 
contractors, or an established on-site fingerprinting program. If a 
licensee has fingerprints taken at a facility other than that of a 
recognized Federal, State, or local law enforcement agency, the 
licensee should ensure that the prints are taken legibly and match 
the identity of the individual named on the fingerprint card.
    In these cases, the individual taking fingerprints should at a 
minimum:
    (1) Be trained to take fingerprints (Training to take 
fingerprints is offered through the FBI, or may be available from 
local law enforcement agencies and some professional associations.);
    (2) Verify the identity of the individual being fingerprinted by 
checking a government-issued picture identification (e.g., a 
passport or driver's license) and that the name on the card matches 
the government issued identification.
    (3) Sign the block on the fingerprint card labeled ``SIGNATURE 
OF OFFICIAL TAKING THE FINGERPRINTS.''
    The licensee must ensure that complete and accurate information 
is provided in accordance with 10 CFR 30.9. available at: http://
www.nrc.gov/reading-rm/doc-collections/cfr/part030/part030-0009.html
    26. How is the initial trustworthiness and reliability (T&R) 
determination and certification made (based on fingerprints and a 
criminal history record check) if the individual to be designated as 
the Reviewing Official is also the license custodian, initiator, or 
applicant, and has unescorted access?
    In most cases, there will be no one within an organization or 
company, above the custodian or initiator of a license 
(``licensee''), previously determined trustworthy and reliable for 
purposes of evaluating background check and criminal history 
information and making the initial determination as to whether a 
designated Reviewing Official is trustworthy and reliable.
    Within the licensing process, there are a series of screening 
criteria used by the reviewer to assess information regarding the 
applicant. The purpose of the screening criteria is to provide 
reasonable assurance that radioactive material will be used as 
intended. The fact that a regulatory authority, using established 
processes, has authorized the individual applicant to provide 
services to devices containing radioactive material quantities of 
concern provides the basis for allowing the applicant to appoint 
Reviewing Officials.
    Where the licensee or applicant requires unescorted access and 
intends to designate himself or herself as the Reviewing Official, 
the licensee or applicant should submit fingerprints to the NRC for 
approval. Once approved by the NRC, the licensee or applicant can 
then make T&R determinations for other employees who require 
unescorted access subject to the fingerprinting requirements.
    27. When completing the fingerprint cards, NRC Licensees should 
use their NRC docket number in the field ``YOUR NO. OCA.'' Since 
Agreement State Licensees do not have NRC docket numbers, what 
should they use to complete the field?
    Agreement State Licensees should use their two letter State 
abbreviation followed by a dash and the Licensee's license number 
(e.g., CA-123456).
    28. When making a payment to the NRC through Pay.gov for 
processing of

[[Page 65228]]

fingerprints, Pay.gov requires a TCN. What is a TCN and what 
information should go in this field?
    TCN stands for ``Transaction Control Number'' and it identifies 
payment for the processing of fingerprints for any given individual. 
The TCN is a tool for Licensees to track their submissions and may 
include any number of identifying information that would be useful 
for that purpose. For instance, Licensees can include the names of 
one or more individuals for whom payment is being made, Licensee's 
name and/or date of submittal.
    29. Can I submit my fingerprints electronically to the NRC?
    Yes. Some Licensees may choose to make arrangement with the NRC 
to submit fingerprints electronically to the NRC. However, for many 
Licensees this option may be prohibitive, due to the cost associated 
with the purchase of electronic fingerprinting equipment. To 
establish an electronic fingerprinting program with the NRC, please 
contact NRC's Facility Security Branch at 301-492-3531. Please note 
that electronic submission of fingerprints to the NRC must come 
directly from the Licensee.
    30. What happens to the fingerprint cards after the NRC receives 
it from the Licensee?
    The NRC scans the fingerprint cards to transmit to the FBI 
electronically. The cards are retained and secured for approximately 
a month after which time they are destroyed in accordance with 
Federal guidelines.
    31. How should large companies that are licensed in multiple 
jurisdictions respond to the fingerprinting requirements?
    The fingerprinting requirements are imposed based on the 
license, not the company. If a company holds multiple licenses 
subject to the fingerprinting requirements, it must respond for each 
license. For example, if a company holds two NRC licenses, it must 
respond for both licenses. If convenient, the company may submit a 
combined response covering both licenses, but the response must 
address each of the licenses (i.e., ``Joe Smith, RSO for both of our 
licenses, will serve as the Reviewing Official for both licenses XX-
XXXXX-01 and XX-XXXXX-02.'').
    32. The implementation deadline has passed and I have not 
completed the trustworthiness and reliability adjudication process 
for certain individuals because I have not received classifiable 
fingerprint/FBI criminal history check results. Should I submit a 
request for relief from the implementation deadline?
    A request for relief from the implementation deadline is not 
necessary if the initial fingerprint submissions for individuals 
requiring unescorted access to radioactive materials in quantities 
of concern were submitted to the (NRC) by the implementation 
deadline. For these individuals, the trustworthiness and reliability 
adjudication process should be completed within a maximum of 35 days 
from the date of receipt of classifiable fingerprints and criminal 
history reports.
    33. What are the next steps in the process if the FBI rejects a 
Form FD-258 (fingerprint card) because the fingerprints are not 
classifiable? What options are available to licensees if an 
individual's fingerprints cannot be classified based on conditions 
other than poor quality after multiple attempts?
    The overwhelming majority of fingerprint cards are returned as 
classifiable (i.e., can be read by the FBI and used to identify the 
individual). If the initial fingerprint submission is returned by 
the FBI because the fingerprint impressions cannot be classified, 
the fingerprints may be retaken and resubmitted (i.e., new Form-258 
or submission) for a second attempt. The licensee will not be 
charged for the resubmission if the licensee provides a copy of the 
FBI response indicating the fingerprints could not be classified.
    If the FBI is unable to classify the second submission of 
fingerprints, the licensee can submit additional fingerprint 
impressions for the individual, as follows:
    1. The third fingerprint card submission will require payment of 
an additional $26 processing fee.
    2. If the third submission is also returned as unclassifiable, 
the licensee may submit a fourth set of fingerprints. An additional 
fee is not required because the fee for the third submission 
includes one resubmission. As with the second submission, the FBI 
response should be included, or the submission may be treated as a 
new request and an additional fee may be charged.
    Please note that a licensee can opt to take and submit the third 
and fourth sets of fingerprints together to avoid a potential delay 
in the response. If the third set is returned as unclassifiable, NRC 
will automatically resubmit the fourth set.
    3. If the fourth submission is returned as unclassifiable, the 
licensee should submit six (6) additional fingerprint cards for the 
individual. All six cards will be forwarded to the FBI, who will 
take what they believe to be the best quality prints from each card 
to make a complete set of fingerprints. An additional $26 processing 
fee is required and covers the processing of all six fingerprint 
cards, but does not include an additional resubmission.
    4. If the FBI is unable to obtain classifiable fingerprints from 
the six cards, based on conditions other than poor quality (e.g., 
medical conditions or physical anomalies that prevent the taking of 
readable prints), then the NRC will automatically request a check 
based on a name search for the individual, and will forward the 
results to the licensee.
    5. No further submissions will be required, and the licensee can 
consider the results of the name search-FBI identification and 
criminal history records check as a component in determining 
trustworthiness and reliability in accordance with the Order.
    The NRC will consider licensee requests for deviation from the 
above process for good cause (e.g., a demonstrated history of 
difficulty providing classifiable fingerprints during other 
fingerprinting programs or a documented medical condition or 
physical anomaly that can prevent the taking of readable prints). 
Licensees may submit a request for consideration of alternatives, 
and provide the basis for the need for an alternative process to 
NRC's Facilities Security Branch in the Division of Facilities and 
Security (requests may be made by phone at 301-492-3531, mailed to 
the mailing address in Enclosure 3 to the Order, by FAX to the 
attention of Doreen Turner at 301-492-3448 with a cover sheet 
attached, or emailed to Doreen.turner@nrc.gov). Please note that 
requests for an alternative to the above process will not affect a 
licensee's responsibility to fingerprint individuals for unescorted 
access or to comply with the trustworthiness and reliability 
requirements of the Order.
    Licensees should be aware that Steps 3 and 4 do not occur often, 
and should take notice that Step 4 may only occur in instances where 
the FBI has determined that the fingerprints cannot be classified 
based on conditions other than poor quality. Failure to provide 
quality fingerprint impressions may result in the individual not 
able to be considered for unescorted access.
    Fingerprints may be unclassifiable for a number of reasons, 
including:
    1. Incomplete impressions (fingers not completely rolled from 
one side of the nail to the other).
    2. Left and right hands reversed on the fingerprint card.
    3. The same hand or finger printed twice on the card.
    4. Fingerprints are not clear and distinct (smudged, uneven, too 
dark or light, etc.).
    5. Fingers on the card are missing or partially missing without 
an explanation.
    To avoid rejection of fingerprints by the FBI as 
``unclassifiable,'' the person taking the prints should ensure they 
are of good quality and do not include any of these deficiencies, 
and follow the instructions on the back of the fingerprint card. 
Also, fingerprint cards with incomplete or missing information will 
be returned to the licensee to provide complete information, 
resulting in a delay in processing.
    The FBI has provided guidance on the taking of fingerprints for 
submission to the FBI at http://www.fbi.gov/hq/cjisd/takingfps.html. 
This guidance also discusses special situations, such as 
fingerprinting an individual with abnormalities of the fingers, 
thumbs or hands, and the appropriate way to identify such situations 
on the fingerprint card. A checklist to verify that the fingerprint 
impressions meet the FBI's requirements is also included.
    34. Will guidance be provided on what determines trustworthiness 
and reliability?
    No, however, IC1(b) provides the minimum basis upon which a 
determination may be made. Alternative sources may be used depending 
on the information available to the licensee. It is the licensee's 
responsibility to make a trustworthiness and reliability 
determination for an employee granted unescorted access. This is a 
licensee's business decision as to what criteria it uses for the 
bases of the trustworthiness and reliability determination.
    The trustworthy and reliability determination is designed to 
identify past actions to help verify one's character and reputation 
which provide reasonable assurance of an individual's future 
reliability.
    The following are some indicators that licensees may want to 
consider for what may be a trustworthiness and reliability concern:

[[Page 65229]]

    1. Impaired performance attributable to psychological or other 
disorders.
    2. Conduct that warrants referral for criminal investigation or 
results in arrest or conviction.
    3. Indication of deceitful or delinquent behavior.
    4. Attempted or threatened destruction of property or life.
    5. Suicidal tendencies or attempted suicide.
    6. Illegal drug use or the abuse of legal drugs.
    7. Alcohol abuse disorders.
    8. Recurring financial irresponsibility.
    9. Irresponsibility performing assigned duties.
    10. Inability to deal with stress, or having the appearance of 
being under unusual stress.
    11. Failure to comply with work directives.
    12. Hostility or aggression toward fellow workers or authority.
    13. Uncontrolled anger, violation of safety or security 
procedures, or repeated absenteeism.
    14. Significant behavioral changes, moodiness or depression.
    These indicators are not meant to be all inclusive or intended 
to be disqualifying factors. Licensees can also consider extenuating 
or mitigating factors in their determinations.

Procedures for Processing Fingerprint Checks

    For the purpose of complying with this Order, Licensees should:
    1. Submit one completed, legible standard fingerprint card (Form 
FD-258, ORIMDNRCOOOZ) for each individual seeking unescorted access 
to certain radioactive material to the Director, Division of 
Facilities and Security.
    2. Include a cover letter with the name and address of the NRC-
approved Reviewing Official to whom the criminal history records 
should be returned.
    3. Mail applications to the following address (overnight mail is 
preferred): Director, Division of Facilities and Security, U.S. 
Nuclear Regulatory Commission, 11545 Rockville Pike, Rockville, MD 
20852-2738, ATTN: CRIMINAL HISTORY PROGRAM, MAIL STOP TWB-05B32M.
    4. Fingerprints for unescorted access need not be taken if an 
employed individual (e.g., a Licensee employee, contractor, 
manufacturer, or supplier) is relieved from the fingerprinting 
requirement by 10 CFR 73.61, or any person who has been favorably-
decided by a U.S. Government program involving fingerprinting and an 
FBI identification and criminal history records check (e.g., 
National Agency Check, Transportation Worker Identification 
Credentials in accordance with 49 CFR Part 1572, Bureau of Alcohol 
Tobacco Firearms and Explosives background checks and clearances in 
accordance with 27 CFR Part 555, Health and Human Services security 
risk assessments for possession and use of select agents and toxins 
in accordance with 42 CFR Part 73, Hazardous Material security 
threat assessment for hazardous material endorsement to commercial 
drivers license in accordance with 49 CFR Part 1572, Customs and 
Border Patrol's Free and Secure Trade Program \8\) within the last 
five (5) years, or any person who has an active Federal security 
clearance (provided in the latter two cases that they make available 
the appropriate documentation \9\). Written confirmation from the 
Agency/employer which granted the federal security clearance or 
reviewed the FBI criminal history records results based upon a 
fingerprint identification check must be provided. The Licensee must 
retain this documentation for a period of three (3) years from the 
date the individual no longer requires unescorted access to certain 
radioactive material associated with the Licensee's activities.
---------------------------------------------------------------------------

    \8\ The FAST program is a cooperative effort between the Bureau 
of Customs and Border Patrol and the governments of Canada and 
Mexico to coordinate processes for the clearance of commercial 
shipments at the U.S.-Canada and U.S.-Mexico borders. Participants 
in the FAST program, which requires successful completion of a 
background records check, may receive expedited entrance privileges 
at the northern and southern borders.
    \9\ This documentation must allow the Reviewing Official to 
verify that the individual has fulfilled the unescorted access 
requirements of Section 149 of the AEA by submitting to 
fingerprinting and an FBI identification and criminal history 
records check.
---------------------------------------------------------------------------

    Additional copies of Form FD-258 may be obtained by writing the 
Office of Information Services, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, by calling (301) 492-3531, or by email to 
forms@nrc.gov. The Licensee should establish procedures to ensure 
that the quality of the fingerprints taken results in minimizing the 
rejection rate of fingerprint cards due to illegible or incomplete 
cards.
    Licensees must have their fingerprints taken by an official 
authorized to take fingerprints, such as a representative from a 
local law enforcement agency or a private entity qualified to take 
fingerprints, because the official must certify the identity of the 
person being fingerprinted.
    The NRC will review submitted fingerprint cards for 
completeness. Any Form FD-258 fingerprint record containing 
omissions or evident errors will be returned to the Licensee for 
corrections.
    The fee for processing fingerprint checks includes one re-
submission if the initial submission is returned by the FBI because 
the fingerprint impressions cannot be classified (e.g., due to poor 
quality, incomplete impressions, or other errors in the taking of 
the fingerprints). The licensee will not be charged for the one re-
submission if the licensee provides the FBI Transaction Control 
Number (TCN) or a copy of the FBI response indicating the 
fingerprints could not be classified. If additional re-submissions 
are necessary, they will be treated as initial submittals and will 
require an additional payment of the processing fee.
    Fees for processing fingerprint checks are due upon application 
(Note: local law enforcement agencies or contractors taking the 
fingerprints may charge an additional fee for this service). 
Licensees should submit payments electronically via http://www.pay.gov. 
Payments through Pay.gov can be made directly from the 
Licensee's credit/debit card. Licensees will need to establish a 
password and user ID before they can access Pay.gov. To establish an 
account, Licensees should send a request for an account to 
paygo@nrc.gov. The request must include the Licensee's name, 
address, point of contact, email address, and contact phone number. 
The NRC will forward each request to Pay.gov and Pay.gov will 
contact the Licensee with all of the necessary account information. 
Licensees without a credit or debit card that can be linked to 
Pay.gov can pay the fees by check, cashier check or money order made 
out to the NRC and submitted with the fingerprint cards.
    The payment of the fees for processing fingerprints must be made 
before or with the submission of applications to the NRC. Combined 
payment for multiple applications is acceptable. Licensees should 
include the Pay.gov payment receipt(s), or a check, cashier check, 
or money order for the fee(s) along with the application(s). For 
additional guidance on making electronic payments, contact the 
Facilities Security Branch, Division of Facilities and Security, at 
(301) 492-3531. The application fee (currently $26) is the sum of 
the user fee charged by the FBI for each fingerprint card or other 
fingerprint record submitted by the NRC on behalf of a Licensee, and 
an NRC processing fee, which covers administrative costs associated 
with NRC handling of Licensee fingerprint applications. The 
Commission will directly notify Licensees subject to this 
requirement of any fee changes.
    It is necessary for a Licensee to resubmit fingerprints only 
under two conditions:
    1. The FBI has determined that the fingerprints cannot be 
classified due to poor quality in the mechanics of taking the 
initial impressions.
    2. The initial submission has been lost.
    If the FBI advises the fingerprints are unclassifiable based on 
conditions other than poor quality, the Licensee may submit a 
request to NRC for alternatives. The Commission will receive and 
forward to the submitting Licensee all data from the FBI as a result 
of the Licensee's application(s) for criminal history records 
checks, including the FBI fingerprint record(s). When the results 
are received from the FBI, no further fingerprint-related search is 
necessary.

Guidance for Evaluating FBI Identification and Criminal History Records 
Checks for Allowing Unescorted Access to Certain Radioactive Material

    Each Licensee is responsible for determining whether to grant an 
individual unescorted access to certain radioactive materials. The 
Licensee shall allow only trustworthy and reliable individuals, 
approved in writing by the Licensee, to have unescorted access to 
radioactive material quantities of concern (listed in Attachment 2 
of the Order) and devices containing that radioactive material. The 
trustworthiness and reliability determination, to grant an 
individual unescorted access to certain radioactive materials, is 
made by the Licensee's Reviewing Official, based on information 
gathered from all four elements of the background check and 
evaluated by the Reviewing Official. The minimum four background 
check elements are: (1)

[[Page 65230]]

Fingerprinting and a Federal Bureau of Investigation (FBI) 
identification and criminal history records check, (2) verifying 
employment history, (3) verifying education, and 4) personal 
references. The purpose of this guidance is to address the 
fingerprinting component of the determination.
    Unescorted access determinations require an evaluation of a 
person's trustworthiness and reliability. When a person's life 
history shows evidence of unreliability or untrustworthiness, 
questions arise whether the person can be relied on and trusted to 
exercise the responsibility necessary for working with risk-
significant radioactive materials. The purpose of the 
trustworthiness and reliability determination requirement, for 
unescorted access, is to provide reasonable assurance that those 
individuals are trustworthy and reliable, and do not constitute an 
unreasonable risk to the public health and safety, including the 
potential to commit or aid theft and/or radiological sabotage. This 
is a Licensee's business decision as to what criteria it uses for 
the bases of the trustworthiness and reliability determination. Some 
indicators that Licensees should consider for what may be a 
trustworthiness and reliability concern can be found in Increased 
Control guidance in Q and A 34 (Enclosure 2 to the 
transmittal letter of this Order).
    In evaluating the relevance of an individual's conduct, the 
Reviewing Official should consider the following factors:
    (1) The nature, extent, and seriousness of the conduct;
    (2) The circumstances surrounding the conduct, to include 
knowledgeable participation;
    (3) The frequency and recency of the conduct;
    (4) the individual's age and maturity at the time of the 
conduct;
    (5) The extent to which participation is voluntary;
    (6) the presence or absence of rehabilitation and other 
permanent behavioral changes;
    (7) The motivation for the conduct;
    (8) The potential for pressure, coercion, exploitation, or 
duress; and
    (9) The likelihood of continuation or recurrence.
    Each case must be judged on its own merits, and final 
determination remains the responsibility of the Licensee. In every 
case, the Reviewing Official should evaluate trustworthiness and 
reliability based on an accumulation of information which supports a 
positive finding, prior to granting unescorted access. Items to 
consider include:
    1. The Reviewing Official should evaluate the information 
collected for consistency and adequacy.
    2. True identity should be evaluated by comparing applicant 
provided identification and personal history data to pertinent 
information from the background check, and other data sources.
    3. The Reviewing Official should determine whether 
inconsistencies determined through review or investigation, are 
intentional, innocent, or an oversight. Willful or intentional acts 
of omission or untruthfulness could be grounds for denial of 
unescorted access.
    When a Licensee submits fingerprints to the NRC pursuant to an 
NRC Order, it will receive a FBI identification and criminal history 
record since the individual's eighteenth birthday. The Licensee will 
receive the information from the criminal history check of those 
individuals requiring unescorted access to radioactive materials, 
and the Licensee's Reviewing Official should evaluate that 
information using the guidance below.
    The Licensee's Reviewing Official is required to evaluate all 
available information in making a T&R determination for unescorted 
access to radioactive materials, including the criminal history 
records information pertaining to the individual as required by the 
NRC Order. The FBI identification and criminal history records check 
is used in the determination of whether the individual has a record 
of criminal activity that indicates that the individual should not 
have unescorted access to radioactive materials subject to this 
Order. Each determination of trustworthiness and reliability for 
unescorted access to radioactive materials, which includes a review 
of criminal history information, must be documented to include the 
basis for the decision made.
    Licensees shall not make a final determination solely on the 
basis of criminal history checks information involving an arrest 
more than 1 year old for which there is not information on the 
disposition of the case, or an arrest that resulted in dismissal of 
the charge or an acquittal.
    All information collected is to be considered by the Licensee in 
making a trustworthiness or reliability determination for unescorted 
access. Potentially disqualifying information obtained from 
confidential/unnamed sources must be substantiated and documented, 
and should not be used as a sole basis to deny access authorization 
unless corroborated. Licensees should establish criteria in writing 
that would disqualify someone from being granted authorized access.
    The FBI identification and criminal history records check is 
used to evaluate whether the individual has a record of criminal 
activity that may compromise his or her trustworthiness and 
reliability. Identification of a criminal history through the FBI 
criminal history records check does not automatically indicate 
unreliability or lack of trustworthiness of the employee. The 
licensee will have to judge the nature of the criminal activity, 
length of employment, and recency of the criminal activity. The 
licensee can authorize individuals with criminal records for 
unescorted access to radioactive materials, based on a documented 
evaluation of the basis for determining that the employee was 
reliable and trustworthy notwithstanding his or her criminal 
history. Each evaluation conducted in review of criminal history and 
other background checks information, should be documented to include 
the decision making basis.
    At a minimum, the Licensee should consider the following 
elements when evaluating the results of the FBI Identification and 
Criminal History Records check:
    1. Committed, attempted to commit, aided, or abetted another who 
committed or attempted to commit any act of sabotage, espionage, 
treason, sedition, or terrorism.
    2. Publicly or privately advocated actions that may be inimical 
to the interest of the United States, or publicly or privately 
advocated the use of force or violence to overthrow the Government 
of the United States or the alteration of the form of government of 
the United States by unconstitutional means.
    3. Knowingly established or continued a sympathetic association 
with a saboteur, spy, traitor, seditionist, anarchist, terrorist, or 
revolutionist, or with an espionage agent or other secret agent or 
representative of a foreign nation whose interests may be inimical 
to the interests of the United States, or with any person who 
advocates the use of force or violence to overthrow the Government 
of the United States or the alteration of the form of government of 
the United States by unconstitutional means. (Ordinarily, the 
Licensee should not consider chance or casual meetings or contacts 
limited to normal business or official relations.)
    4. Joined or engaged in any activity knowingly in sympathy with 
or in support of any foreign or domestic organization, association, 
movement, group, or combination of persons which unlawfully 
advocates or practices the commission of acts of force or violence 
to prevent others from exercising their rights under the 
Constitution or laws of the United States or any State or any 
subdivisions thereof by unlawful means, or which advocate the use of 
force and violence to overthrow the Government of the United States 
or the alteration of the form of government of the United States by 
unconstitutional means. (Ordinarily, the Licensee should not 
consider chance or casual meetings or contacts limited to normal 
business or official relations.)
    5. Deliberately misrepresented, falsified or omitted relevant 
and material facts from documentation provided to the Licensee.