30 August 2006
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[Federal Register: August 30, 2006 (Volume 71, Number 168)]
[Proposed Rules]
[Page 51534-51538]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30au06-30]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 73
RIN 3150-AH90
Secure Transfer of Nuclear Materials
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its regulations to implement requirements for secure transfer of
nuclear materials as required by Section 656 of the Energy Policy Act
of 2005 (EPAct), signed into law on August 8, 2005. The proposed
amendment would implement Section 656 by specifically excepting certain
licensees from provisions of Section 170I of the Atomic Energy Act
(AEA), as amended.
DATES: The comment period expires September 29, 2006. Comments received
after this date will be considered if it is practical to do so, but NRC
is able to assure consideration only for comments received on or before
this date. A copy of the draft proposed rule was made available for
information only on July 6, 2006, on NRC's rulemaking Web site at:
http://ruleforum.llnl.gov.
ADDRESSES: You may submit comments by any one of the following methods.
Please include the following number (RIN 3150-AH90) in the subject line
of your comments. Comments on rulemakings submitted in writing or in
electronic form will be made available for public inspection. Because
your comments will not be edited to remove any identifying or contact
information, NRC cautions you against including personal information
such as social security numbers and birth dates in your submission.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-
mail confirming that we have received your comments, contact us
directly at (301) 415-1966. You may also submit comments via NRC's
rulemaking Web site at http://ruleforum.llnl.gov. Address questions
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-
mail: cag@nrc.gov. Comments can also be submitted via the Federal
eRulemaking Portal http://www.regulations.gov.
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 a.m. and 4:15 p.m., Federal workdays. (Telephone
(301) 415-1966.)
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
(301) 415-1101.
Publicly available documents related to this rulemaking may be
viewed electronically on the public computers located at the NRC's
Public Document Room (PDR), Public File Area O1 F21, One White Flint
North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction
contractor will copy documents for a fee. Selected documents, including
comments, may be viewed and downloaded electronically via NRC's
rulemaking Web site at: http://ruleforum.llnl.gov.
Publicly available documents created or received at NRC after
November 1,
[[Page 51535]]
1999, are available electronically at NRC's Electronic Reading Room at
http://www.nrc.gov/reading-rm.html. From this site, the public can gain
entry into NRC's Agencywide Document Access and Management System
(ADAMS), which provides text and image files of NRC's public documents.
If you do not have access to ADAMS or if there are problems in
accessing the documents located in ADAMS, contact the PDR Reference
staff at 1-800-397-4209, (301) 415-4737, or by e-mail to pdr@nrc.gov.
FOR FURTHER INFORMATION CONTACT: Frank Cardile, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-6185, e-mail:
fpc@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Energy Policy Act of 2005
On August 8, 2005, the President signed into law the EPAct of 2005,
Pub. L. 109-58, 119 Stat. 594 (2005). Section 656 of the EPAct added
Section 170I to the Atomic Energy Act of 1954 (AEA), 42 U.S.C, 2210i,
and requires that:
(a) A system be established by the Commission to ensure that
materials transferred or received in the United States, by any party,
pursuant to an import or export license issued by NRC, are accompanied
by a manifest describing the type and amount of materials. Each
individual receiving or accompanying the transfer of such materials
shall be subject to a security background check conducted by
appropriate Federal entities. Section 656 also states that, except as
provided by the Commission by regulation, the materials referred to
are: Byproduct material; source material; special nuclear material;
high-level radioactive waste; spent nuclear fuel; transuranic waste;
and low-level radioactive waste; and
(b) The Commission issue regulations, within one year after
enactment of the EPAct, identifying radioactive materials or classes of
individuals that, consistent with the protection of the public health
and safety and the common defense and security, are appropriate
exceptions to the requirements in Section 170I \1\ of the AEA.
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\1\ The text of Section 656 actually refers to ``exceptions to
the requirements of Section 170D of the AEA''; however, that is a
misprint. The correct citation is Section 170I.
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II. Discussion
Based on the above, Section 656 of the EPAct amends the AEA by
adding three broad elements: (a) Establish a system for manifests of
import/export shipments of radioactive materials; (b) require security
background checks of persons receiving or accompanying import/export
shipments; and (c) issue a regulation within one year with provisions
for excepting certain types of radioactive materials or classes of
individuals from the requirements of Section 170I of the EPAct.
Establishing a system for manifests, requiring security background
checks, and issuing a regulation with provisions for exceptions, are
discussed in Sections II.A, II.B, and II.C, respectively, of this
document.
A. Establish a System for Manifests for Shipments of Radioactive
Material
Requirements for a system of manifests for shipments of material
would include maintaining appropriate paperwork with a shipment that
identifies the material being shipped. Specifically, the EPAct requires
that a manifest include a description of the type of material and an
indication of the amount of material being transported.
Currently, requirements for manifesting shipments of radioactive
materials already exist in U.S. Department of Transportation (DOT)
regulations at 49 CFR part 172. Specifically, 49 CFR 172.202(a)
requires that shipping papers with radioactive shipments must indicate
the basic description of the material, the total quantity of material
(by mass, volume, or activity level in appropriate units), and the
number and type of packages. In addition, for the quantities of
radioactive material covered by the EPAct, 49 CFR 172.203(d) contains
requirements that descriptions of a shipment containing radioactive
material must include the name (and/or chemical symbol) of each
radionuclide in the material; a description of the physical and
chemical form of the material, if not special form; the activity
contained in each package of the shipment in terms of appropriate
international units (e.g., Becquerels (Bq)) and/or appropriate
customary units (Curies (Ci), etc.) in parentheses following the
international units; and labeling of each package being transported.
NRC's current regulations cross-reference the DOT requirements
applicable to the transportation of licensed materials at 10 CFR 71.5.
Section 71.5 requires that each licensee who transports licensed
material outside the site of usage, or where transport is on public
highways, or who delivers licensed material to a carrier for transport,
comply with the applicable requirements of the DOT regulations at 49
CFR parts 107, 171-180, and 390-397, as appropriate to the mode of
transport.
Based on the existing DOT requirements for shipping papers for
shipments of radioactive materials at 49 CFR part 172 and NRC's
regulations at 10 CFR part 71, NRC believes that an appropriate system
is already established to ensure that shipments of radioactive
materials are accompanied by papers (i.e., a ``manifest'')
appropriately describing the type and amount of materials being
shipped. Thus, NRC considers that the requirements of the EPAct have
been met in this area. Therefore, NRC is not including any additional
requirements for manifesting of radioactive material shipments in this
proposed rule.
B. Require Security Background Checks for Persons Accompanying or
Receiving Shipments of Radioactive Materials
Section 656 of the EPAct states that each individual who
``accompanies'' or ``receives'' the transfer of radioactive materials
in the United States, pursuant to an NRC import or export license,
shall be subject to a security background check \2\ conducted by
appropriate Federal entities. Section 656(c) of the EPAct also
indicates that such background check requirements would become
effective on a date established by the Commission.
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\2\ The term ``security background check'' is not defined in
Section 656. In related regulatory efforts, it has been noted that
background checks form the basis of trustworthiness and reliability
and are comprised of several elements (e.g., verification of
identity; a check into employment history, education and personal
references; and a criminal history record check requiring
fingerprints).
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The NRC believes that the most appropriate and comprehensive
approach for establishing requirements for security background checks
is as part of the broader considerations of NRC's planned rulemaking to
implement Section 652 of the EPAct. Section 652 mandates the Commission
to require fingerprinting and criminal history record checks for any
individual who is permitted unescorted access to radioactive material
``* * * 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.'' The individuals
referred to under Section 656 are a subgroup (i.e., those transferring
radioactive material pursuant to an export or import license) of the
larger group of individuals at a licensed facility, with unescorted
access to radioactive material, who would
[[Page 51536]]
ultimately be included under a Section 652 rulemaking. The goal of the
Section 652 rulemaking is that requirements for access are coherent and
use a graded approach for the wide range of licensees impacted by
Section 652, including those who might import or export radioactive
material, and that there be coordinated consideration of appropriate
exceptions, and of both domestic and import/export transport.
Thus, NRC considers the rulemaking to implement Section 652 to be
the most appropriate and comprehensive approach for establishing
requirements for security background checks for licensees, and for
licensee employees, for unescorted access to radioactive material and
for the broad range of transportation networks that licensees use. The
Section 652 rulemaking will incorporate technical basis development and
will also provide opportunity for stakeholder comment. Those
individuals involved in ``receiving'' and ``accompanying'' radioactive
materials, addressed in Section 656, would be covered by the
comprehensive Section 652 rulemaking.
In addition to the rulemaking to implement Section 652, there are
various regulatory initiatives, in place or underway, at other Federal
agencies who have authority in the area of transportation security,
including the Department of Homeland Security (DHS) and the DOT (see
further discussion below). NRC views the transport security
requirements of DHS and/or DOT, that apply to the nation's hazardous
material transportation infrastructure as a whole, as the most
effective long-term solution to implementing certain provisions of
Section 656 of the EPAct. NRC is aware of DHS initiatives, such as the
Transportation Worker Identification Credential (TWIC) \3\ program,
that are being implemented and views such programs as an effective
solution for security background checks on transportation workers. NRC
will work with other Federal agencies with authority in the area of
transport security during the Section 652 rulemaking to ensure a
coordinated Federal approach and to consider other Federal agency
programs that are developed and initiated.
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\3\ TSA and USCG recently published a proposed rule in the
Federal Register on implementing the TWIC program for the maritime
sector (see 71 FR 29395; May 22, 2006).
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The current schedule for the rulemaking to implement Section 652
calls for issuance of a proposed rule in the Fall of 2007 and a final
rule in the Fall of 2008. While the more comprehensive Section 652
rulemaking is being conducted, the combination of NRC's system of
Orders to a broad range of licensees setting conditions for access to
radioactive material, as well as the system of DHS's and DOT's
authorities and security regulations for transport personnel, provide
adequate protection of the common defense and security, as they relate
to persons accompanying and receiving material. These existing systems,
described more fully below, include provisions for background checks
for trustworthiness and reliability and provisions for fingerprinting
for the purpose of obtaining a criminal history record check from the
Federal Bureau of Investigation.
NRC issued an extensive series of Orders during 2002-2005 that
included background check requirements for unescorted access to
radioactive material for certain facilities which it licenses. NRC has
also issued Orders to reactor and materials licensees for shipment of
radioactive material in quantities of concern (RAMQC). The purpose of
these Orders has been to impose certain security measures to supplement
existing regulations at 10 CFR part 20, and equivalent Agreement State
regulations, for securing licensed materials from unauthorized access,
with the intent of providing the NRC with reasonable assurance that the
common defense and security is protected. The Orders note that
conditions for unescorted access to risk-significant sources of
radioactive material are governed by an appropriate need-to-know and by
background checks as input to a determination concerning the
trustworthiness and reliability of individuals who have access to the
material. The Orders for unescorted access to radioactive material
issued to date do not include fingerprinting for a criminal history
record check.
Currently, NRC is preparing additional Orders to pool-type
irradiator licensees, manufacturing and distribution (M&D) licensees,
and licensees making shipments of RAMQC, to require fingerprinting and
criminal history checks for unescorted access to the risk-significant
sources of radioactive material at their facilities. These Orders would
cover all individuals with unescorted access to radioactive material at
these facilities; persons ``receiving'' material at these licensee's
facilities, pursuant to an import/export license, would be a subset of
the persons covered by the Orders.
As noted above, other Federal agencies have separate statutory
authority in the area of transportation security. DHS is responsible
for protecting the movement of international trade across U.S. borders
and maximizing the security of the international supply chain. DHS
includes the Transportation Security Administration (TSA), U.S. Coast
Guard (USCG), and U.S. Customs and Border Protection. Collectively,
these agencies are responsible for protecting our nation's
transportation systems and supervising the entry of goods into the
United States. In carrying out these responsibilities, TSA has
regulations for both civil aviation security (49 CFR parts 1540 to
1562) and maritime and land transportation security (49 CFR parts 1570
to 1572). Sections 1544.229 and 1544.230 of Title 49 require that each
aircraft flight crew member, and each person with unescorted access
authority and authority to perform checked baggage or cargo functions,
undergo a Federal fingerprint-based criminal history record check. 49
CFR 1572.5 requires security threat assessments for individuals
applying for, renewing, or transferring a commercial driver's license
with a hazardous materials endorsement (radioactive material is a Class
7 hazardous material under DOT regulations). 49 CFR 1572.15 establishes
procedures for security threat assessments. A TSA security threat
assessment includes a fingerprint-based criminal history check, an
intelligence-related background check, and a final disposition.
Personnel involved in these functions can be disqualified if the checks
indicate potential security risks. Similarly, the USCG has requirements
for security at U.S. ports and background checks for maritime personnel
(33 CFR part 110 and 46 CFR part 10). Recently, DHS announced that it
would begin conducting name-based background checks on nearly 400,000
port workers in the U.S. as a initial measure as DHS expedites the
comprehensive nationwide biometric-based TWIC program in 2006.
C. Issue Regulations With Exceptions
As discussed in Section I of this document, Section 656(b) of the
EPAct mandates that the NRC issue regulations, within one year after
enactment of the EPAct, identifying radioactive materials or classes of
individuals that, consistent with the protection of the public health
and safety and the common defense and security, are appropriate
exceptions to provisions for security background checks in Section 170I
of the AEA, as amended.
[[Page 51537]]
Consistent with Section 656(b) of the EPAct, the Commission is
proposing to amend its regulations to except, from the security
background check requirements of Section 170I of the AEA, as amended,
licensees who have not received NRC Orders restricting unescorted
access to radioactive materials based on background checks for
trustworthiness and reliability that include fingerprinting and
criminal history record checks. As noted above, Orders restricting
access based on fingerprinting and criminal history record checks will
be issued for pool-type irradiator licensees, M&D licensees, and
licensees who make shipments of RAMQC. Under this proposed rule, those
licensees who did not receive Orders for background checks that include
fingerprinting would be excepted from the security background check
requirements at Section 170I of the AEA.
The rationale for the exceptions is that it is consistent with the
system of Orders, issued to certain licensees, that the NRC has
instituted for protection of the common defense and security. The
materials possessed and transferred by the licensee groups who have
received Orders have been deemed, during the process of issuance of the
Orders, to be appropriate for immediately requiring certain security
measures for unescorted access based on potential higher risk resulting
from malevolent use of those materials. Those licensees excepted by
this proposed amendment possess materials and use them in a manner that
generally presents a lesser hazard for causing harm to the public
health and safety and common defense and security, even if used for
malevolent purposes. Generally, the basis for inclusion of materials
within the system of Orders has been use of International Atomic Energy
Agency (IAEA) Code of Conduct Category threshold quantity amounts which
take account of the IAEA's categorization of sources found in IAEA
Safety Guide No. RS-G-1.9, ``Categorization of Radioactive Sources''
(2005). The safety guide provides a risk-based ranking of radioactive
sources in five categories in terms of their potential to cause severe
deterministic effects for a range of scenarios that include both
external exposure from an unshielded source and internal exposure
following dispersal. Most licensees excepted under this proposed
amendment are not expected to import or export radioactive material
containing radionuclides in the higher risk categories of the IAEA
Safety Guide 1.9.
Using the framework of the existing system of Orders to codify
exceptions allows for a consistent approach for radioactive materials
which NRC considers appropriate, at this time, for exception from the
requirements of Section 170I of the AEA as amended by the EPAct. As
discussed in Section II.B of this document, the NRC intends to address
background checks and fingerprinting for criminal history record checks
for licensees in a more comprehensive manner under the rulemaking to
implement Section 652 of the EPAct. One of the elements of that
rulemaking, as mandated by Section 652(B)(i)(ll), will be determining
requirements for access to quantities of radioactive material, subject
to regulation by the Commission, that the Commission determines to be
of such significance to the public health and safety or to the common
defense and security as to warrant fingerprinting and background
checks. Thus, the proposed requirements for exceptions in this Section
656 rulemaking will be revisited and may be superseded by the more
comprehensive Section 652 rulemaking. At this time, in this Section 656
rulemaking, NRC is making a risk-informed decision to except licensees
other than those with risk-significant sources (i.e., pool-type
irradiators, M&D, and those making shipments of RAMQC, who received
Orders) from the security background check requirements of Section
170I. In the more comprehensive Section 652 rulemaking, NRC will
consider whether the exceptions for security background checks should
be modified.
Under this proposed amendment, licensees not excepted can use the
provisions of their existing Orders (or new or amended Orders) to
comply with Section 170I. As noted above, the Commission believes that
this system of NRC Orders and the system of transport security of other
Federal agencies provide adequate protection of the common defense and
security while NRC is conducting the Section 652 rulemaking.
Also, under the proposed amendment, if additional Orders for
fingerprinting and criminal history checks for unescorted access to
radioactive material are issued to licensees other than those noted
above (i.e., pool-type irradiators, M&Ds, and those making shipments of
RAMQC), licensees who receive any such new Orders would no longer be
excepted from the security background check requirements of Section
170I.
III. Effective Date of Implementation of Rule
Section 656(c) of the EPAct provides that amendments to the AEA
take effect upon issuance of regulations by the Commission under
Section 656(b) of the EPAct. Consistent with this provision, the
requirements for exceptions proposed in this amendment would become
effective on the date of issuance of a final rule.
Section 656(c) of the EPAct also provides that the security
background check requirement is to become effective ``* * * on a date
established by the Commission.'' As discussed above, the Commission is
using its system of Orders to impose the security background check
requirements. The Orders specify dates by which licensees must take
specific actions. In addition, the Commission will issue more
comprehensive security background check requirements in the future
rulemaking to implement Section 652 and will establish an effective
date for those requirements.
With regard to manifest requirements, the Commission notes, as
discussed above, that current NRC and DOT regulations require shipments
of radioactive material to be accompanied by shipping papers (i.e., a
manifest).
IV. Section by Section Analysis of Substantive Changes
A new Section 73.28 would be added to note that licensees are
excepted from the security background check provisions of Section 170I
of the AEA, as amended by the EPAct, if they have not received Orders
from the NRC containing requirements for background checks for
trustworthiness and reliability that include fingerprinting and
criminal history checks as a prerequisite for unescorted access to
radioactive materials. Licensees subject to Orders would not be
excepted from the security background check provisions, and would use
the requirements in their existing Orders to comply with Section 170I.
V. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995 (Pub.
L. 104-113) requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
the use of such a standard is inconsistent with applicable law or
otherwise impractical. In this proposed rule, NRC would indicate
specific exceptions to the requirements of Section 656 of the EPAct.
This action does not constitute the establishment of a standard that
establishes generally applicable requirements.
VI. Agreement State Compatibility
Under the ``Policy Statement on Adequacy and Compatibility of
[[Page 51538]]
Agreement State Programs,'' which became effective on September 3, 1997
(62 FR 46517), NRC program elements (including regulations) are placed
into four compatibility categories (Compatibility Category A through
D). In addition, NRC program elements also can be identified as having
particular health and safety significance or as being reserved solely
to NRC.
The proposed amendment to part 73 would be a program element
designated ``NRC'' based on implementation of the procedure in NRC's
Management Directive 5.9, ``Adequacy and Compatibility of Agreement
States.'' The requirements in this proposed amendment are limited to
providing exceptions to requirements in Section 170I of the AEA, as
amended by the EPAct, and are based on a system of Orders that were
developed under NRC's authority to protect the common defense and
security which are areas of exclusive NRC regulatory authority and
cannot be relinquished to the Agreement States. Therefore, the
requirements of this proposed amendment should not be adopted by the
Agreement States.
VII. Plain Language
The Presidential memorandum entitled ``Plain Language in Government
Writing'' (63 FR 31883; June 10, 1998), directed that the Government's
writing be in plain language. NRC requests comments on the proposed
rule specifically with respect to the clarity and effectiveness of the
language used. Comments should be sent using one of the methods
detailed under the ADDRESSES heading of the preamble to this proposed
rule.
VIII. Environmental Impact: Categorical Exclusion
NRC has determined that this proposed rule is the type of action
described in 10 CFR 51.22(c)(3)(ii) as a categorical exclusion.
Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this proposed rule.
IX. Paperwork Reduction Act Statement
This proposed rule does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval number 3150-0002.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
Office of Management and Budget control number.
X. Regulatory Analysis
A regulatory analysis has not been prepared for this regulation
because it relieves restrictions and does not impose any additional
burdens on licensees.
XI. Regulatory Flexibility Certification
A regulatory flexibility Act analysis is not required because the
proposed amendment does not impose any additional burdens on licensees.
XII. Backfit Analysis
NRC has determined that the backfit rule (Sec. Sec. 50.109, 70.76,
72.62, or 76.76) does not apply to this proposed rule because this
amendment would not involve any provisions that would impose backfits
as defined in the backfit rule. Therefore, a backfit analysis is not
required.
List of Subjects in 10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
For the reasons set out in the preamble and under the authority of
the AEA, as amended; the Energy Reorganization Act of 1974, as amended;
and 5 U.S.C. 553; NRC is proposing to adopt the following amendment to
10 CFR part 73.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat.
2750 (44 U.S.C. 3504 note).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
2. A new Sec. 73.28 is added to read as follows:
Sec. 73.28 Security background checks for secure transfer of nuclear
materials.
Licensees are excepted from the security background check
provisions in Section 170I of the AEA if they have not received Orders
from the Nuclear Regulatory Commission containing requirements for
background checks for trustworthiness and reliability that include
fingerprinting and criminal history record checks as a prerequisite for
unescorted access to radioactive materials.
Dated at Rockville, Maryland, this 24th day of August, 2006.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E6-14397 Filed 8-29-06; 8:45 am]
BILLING CODE 7590-01-P