subch. XV of ch. DHS 157Subchapter XV — Physical Protections of Category 1 and Category 2 Quantities of Radioactive Material DHS 157.9700(1)(a)(a) A licensee that possesses a quantity of radioactive material at or above the category 2 quantity of radioactive material threshold shall establish, implement, and maintain an access authorization program that meets the requirements of this subchapter. DHS 157.9700(1)(b)(b) An applicant for a new license and a licensee that would become newly subject to the requirements of this subchapter upon application to amend its license shall implement the requirements of this subchapter as appropriate and be inspected by the department before taking possession of a category 1 or category 2 quantity of radioactive material. DHS 157.9700(1)(c)(c) A licensee that has not previously implemented the physical protection license condition requirements or been subject to the provisions of this section and ss. DHS 157.9701 to 157.9706 shall implement the provisions of this section and ss. DHS 157.9701 to 157.9706 before aggregating radioactive material to a quantity that equals or exceeds the category 2 threshold. DHS 157.9700(2)(2) General performance objective. The licensee’s access authorization program shall ensure that the individuals specified in sub. (3) (a) are trustworthy and reliable. DHS 157.9700(3)(a)1.1. An individual whose assigned duties require unescorted access to category 1 or category 2 quantities of radioactive material or to any device that contains the radioactive material. DHS 157.9700(3)(c)(c) Except as provided in par. (d), a licensee shall approve for unescorted access to category 1 or category 2 quantities of radioactive material only those individuals with job duties that require unescorted access to category 1 or category 2 quantities of radioactive material. DHS 157.9700 HistoryHistory: CR 16-078: cr. Register January 2018 No. 745, eff. 2-1-18; renumbered from DHS 157.100 under s. 13.92 (4) (b) 1., Stats., and correction in (1) (c), (3) (a) (intro.), (b), (d) made under s. 13.92 (4) (b) 7., Stats., Register January 2018 No. 745. DHS 157.9701(1)(a)(a) A licensee shall implement the requirements of this subchapter for granting initial or reinstated unescorted access authorization. DHS 157.9701(1)(b)(b) An individual who has been determined to be trustworthy and reliable shall complete the security training required under s. DHS 157.9708 (3) before being allowed unescorted access to category 1 or category 2 quantities of radioactive material. DHS 157.9701(2)(a)(a) Only a reviewing official may make trustworthiness and reliability determinations that allow individuals to have unescorted access to category 1 or category 2 quantities of radioactive materials possessed by a licensee. DHS 157.9701(2)(b)(b) Each licensee shall name one or more individuals to be a reviewing official. After completing a background investigation on the reviewing official, the licensee shall provide to the department, under oath or affirmation, a written certification that the reviewing official is deemed trustworthy and reliable by the licensee. The fingerprints of the named reviewing official shall be taken by a law enforcement agency, a federal or state agency that provides fingerprinting services to the public, or a commercial fingerprinting service authorized by a state to take fingerprints. Every 10 years, the licensee shall recertify that the reviewing official is deemed trustworthy and reliable under s. DHS 157.9702 (3). DHS 157.9701(2)(c)(c) The licensee shall permit its reviewing official to have unescorted access to category 1 or category 2 quantities of radioactive materials or access to safeguards information or safeguards information-modified handling, if the licensee possesses safeguards information or safeguards information-modified handling. DHS 157.9701(2)(d)(d) A reviewing official may not approve other individuals to act as a reviewing official. DHS 157.9701(2)(e)(e) A reviewing official does not need to undergo a new background investigation before being named by a licensee as the reviewing official if any of the following apply: DHS 157.9701(2)(e)1.1. The individual has undergone a background investigation that included fingerprinting and a FBI criminal history records check and has been determined to be trustworthy and reliable by the licensee. DHS 157.9701(3)(a)(a) A licensee may not initiate a background investigation without the informed and signed consent of the individual. This consent shall include authorization to share personal information with other individuals or organizations as necessary to complete the background investigation. Before making a final adverse determination, the licensee shall provide the individual with an opportunity to correct any inaccurate or incomplete information that is obtained during the background investigation. A licensee does not need to obtain a signed consent from those individuals that meet the requirements of s. DHS 157.9702 (2). A signed consent shall be obtained before any reinvestigation. DHS 157.9701(3)(b)(b) The subject individual may withdraw consent to a background investigation at any time. If an individual withdraws consent for a background investigation, the licensee shall inform the individual of all of the following: DHS 157.9701(3)(b)1.1. The licensee may not initiate any elements of the background investigation that were not in progress at the time the individual withdrew consent. DHS 157.9701(3)(b)2.2. A withdrawal of consent for a background investigation is sufficient cause for denial or termination of unescorted access authorization. DHS 157.9701(4)(4) Personal history disclosure. An individual who applies for unescorted access authorization shall disclose the personal history information that is required by the licensee’s access authorization program for the reviewing official to make a determination of the individual’s trustworthiness and reliability. Refusal to provide, or the falsification of, any personal history information required under this subchapter is sufficient cause for denial or termination of unescorted access. DHS 157.9701(5)(a)(a) The reviewing official shall determine whether to permit, deny, unfavorably terminate, maintain, or administratively withdraw an individual’s unescorted access authorization based on an evaluation of all the information collected to meet the requirements of this subchapter. DHS 157.9701(5)(b)(b) The reviewing official may not permit any individual to have unescorted access until the reviewing official has evaluated all the information collected to meet the requirements of this section and has determined that the individual is trustworthy and reliable. The reviewing official may deny unescorted access to any individual based on information obtained at any time during the background investigation. DHS 157.9701(5)(c)(c) The reviewing official may terminate or administratively withdraw an individual’s unescorted access authorization based on information obtained after the background investigation has been completed and the individual has been granted unescorted access authorization. DHS 157.9701(5)(d)(d) A licensee shall document the basis for concluding whether or not there is reasonable assurance that an individual is trustworthy and reliable. DHS 157.9701(5)(e)(e) A licensee shall maintain a list of individuals who are approved for unescorted access authorization. When a licensee determines that an individual no longer requires unescorted access or no longer meets the access authorization requirements, the licensee shall remove the individual from the approved list as soon as possible, but no later than 7 working days of that determination, and take prompt measures to ensure that the individual does not have unescorted access to category 1 or category 2 quantities of radioactive material. DHS 157.9701(6)(a)(a) A licensee shall develop, implement, and maintain written procedures for implementing the access authorization program. The procedures shall include provisions for providing notification to individuals who are denied unescorted access authorization, or whose unescorted access authorization is terminated; provisions for the review of the decision at the request of the affected individual; and provisions allowing the individual an opportunity to provide additional relevant information. DHS 157.9701(6)(b)(b) The notification required under par. (a) shall include the grounds for denial or termination and the licensee’s procedures on how the individual may request a review of the decision to deny or terminate the individual’s unescorted access authorization. DHS 157.9701(7)(a)(a) Before any final adverse determination is made, a licensee shall provide to each individual who is subject to a background investigation under this subchapter, written notice that the individual may complete, correct, and explain information obtained as a result of the background investigation. A copy of the notice and confirmation of receipt of the notice shall be maintained by the licensee for one year from the date of the notice. DHS 157.9701(7)(b)(b) Challenge procedures may be initiated by an individual who believes that criminal history records obtained by the licensee are incorrect or incomplete in any respect, and who wishes to change, correct, update, or explain anything in the record. A licensee shall provide at least 10 days for an individual to challenge the results of an FBI criminal history records check after the record is made available for the individual’s review. A licensee may make a final adverse determination based upon the criminal history records only after receipt of the FBI’s confirmation or correction of the record. DHS 157.9701 NoteNote: These procedures include direct application to the law enforcement agency that contributed the questioned information by the individual challenging the record, or a direct challenge to the Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division regarding the accuracy or completeness of any entry on the individual’s criminal history record. In the latter case, the Federal Bureau of Investigation (FBI) will forward the challenge to the agency that submitted the data, and will request that the agency 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. An individual may challenge the accuracy or completeness of any entry on the criminal history record by applying directly to the Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod. D–2, 1000 Custer Hollow Road, Clarksburg, WV 26306 as set forth in 28 CFR 16.30 through 16.34. DHS 157.9701(8)(a)(a) A licensee shall retain documentation regarding the trustworthiness and reliability of individual employees for 3 years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material. DHS 157.9701(8)(b)(b) A licensee shall retain as a record for 3 years, a copy of any superseded portion of the access authorization program procedures, and a copy of current access authorization program procedures after they are no longer needed. DHS 157.9701(8)(c)(c) A licensee shall retain the list of persons approved for unescorted access authorization for 3 years after the list is superseded or replaced. DHS 157.9701 HistoryHistory: CR 16-078: cr. Register January 2018 No. 745, eff. 2-1-18; renumbered from DHS 157.101 under s. 13.92 (4) (b) 1., Stats., and correction in (1) (b), (2) (b), (e) 2., (3) (a) made under s. 13.92 (4) (b) 7., Stats., Register January 2018 No. 745; CR 22-015: am. (6) (b) Register June 2023 No. 810, eff. 7-1-23. DHS 157.9702(1)(a)(a) Background investigation elements. Before allowing an individual unescorted access to category 1 or category 2 quantities of radioactive material or to the devices that contain the material, a licensee shall complete a background investigation of the individual seeking unescorted access authorization. The scope of the investigation shall encompass at least the 7 years preceding the date of the background investigation or the length of time since the individual’s eighteenth birthday, whichever is shorter. The background investigation shall include at a minimum all of the following: DHS 157.9702(1)(a)1.1. ‘Criminal history check.’ The licensee shall conduct fingerprinting and a FBI identification and criminal history records check under s. DHS 157.9703. DHS 157.9702(1)(a)2.2. ‘Verification of true identity.’ The licensee shall verify the true identity of the applicant. The licensee shall review official identification documents (e.g. driver’s license; passport; government identification; certificate of birth issued by the state, province, or country of birth) and compare the documents to personal information provided by the individual to identify any discrepancy in the information. The licensee shall document the type, expiration, and identification number of the identification document, or maintain a photocopy of identifying documents on file under s. DHS 157.9705. The licensee shall certify in writing that the identification was properly reviewed, and shall maintain the certification and all related documents for review upon inspection. DHS 157.9702(1)(a)3.3. ‘Employment history verification.’ The licensee shall verify the applicant’s employment history, including military history, with each employer for the 7 years immediately preceding the date of application. DHS 157.9702(1)(a)4.4. ‘Verification of education.’ The licensee shall verify any educational credentials or experience claimed by the applicant. DHS 157.9702(1)(a)5.5. ‘Character and reputation determination.’ The licensee shall complete reference checks to determine the character and reputation of the applicant. Unless other references are not available, references may not be obtained from any person who is known to be a close member of the applicant’s family, including but not limited to the applicant’s spouse, parents, siblings, or children, or any individual who resides in the applicant’s permanent household. Reference checks under this subchapter shall be obtained for the limited purpose of determining whether the applicant has been and continues to be trustworthy and reliable. DHS 157.9702(1)(a)6.6. ‘Additional information.’ The licensee shall, to the extent possible, obtain independent information to corroborate information provided by the applicant, including but not limited to, seeking references not supplied by the applicant. DHS 157.9702(1)(b)(b) Unresponsive background investigation. If a current or previous employer, educational institution, or any other entity with which the applicant claims to have been engaged, fails to provide information, or indicates an inability or unwillingness to provide information, or if a licensee cannot reach the entity, within a time frame considered appropriate by the licensee but no more than 10 business days after the request, the licensee shall document the refusal, unwillingness, or inability in the background investigation record and attempt to obtain the information from an alternate source. DHS 157.9702(2)(a)1.1. Except as provided in subd. 2. an individual who has been determined to be trustworthy and reliable for unescorted access to category 1 or category 2 quantities of radioactive material under the fingerprint orders may continue to have unescorted access to category 1 and category 2 quantities of radioactive material without further investigation. DHS 157.9702(2)(a)2.2. An individual grandfathered under subd. 1. shall be subject to the reinvestigation requirement under sub. (3). DHS 157.9702(2)(b)1.1. Except as provided under subd. 2. an individual who has been determined to be trustworthy and reliable under 10 CFR 73 or the security orders for access to safeguards information, safeguards information-modified handling, or risk-significant material, may have unescorted access to category 1 and category 2 quantities of radioactive material without further investigation. A licensee shall document that the individual was determined to be trustworthy and reliable under 10 CFR 73 or a security order. DHS 157.9702(2)(b)2.2. An individual grandfathered under subd. 1. shall be subject to the reinvestigation requirement under sub. (3). DHS 157.9702(3)(3) Reinvestigations. A licensee shall conduct a reinvestigation every 10 years for any individual with unescorted access to category 1 or category 2 quantities of radioactive material. The reinvestigation shall consist of fingerprinting and a FBI identification and criminal history records check under s. DHS 157.9703. The reinvestigations shall be completed within 10 years of the date on which fingerprinting and an FBI identification and criminal history records check under s. DHS 157.9703 were last completed. DHS 157.9702 HistoryHistory: CR 16-078: cr. Register January 2018 No. 745, eff. 2-1-18; renumbered from DHS 157.102 under s. 13.92 (4) (b) 1., Stats., and correction in (1) (a) 1., 2., (3) made under s. 13.92 (4) (b) 7., Stats., Register January 2018 No. 745; CR 22-015: am. (2) (b) 1. Register June 2023 No. 810, eff. 7-1-23. DHS 157.9703DHS 157.9703 Criminal history records checks of individuals granted unescorted access. DHS 157.9703(1)(a)(a) Except for those individuals listed in s. DHS 157.9704 and those individuals grandfathered under s. DHS 157.9702 (2), a licensee subject to the provisions of this subchapter shall fingerprint each individual seeking unescorted access to category 1 or category 2 quantities of radioactive material. The licensee shall transmit all collected fingerprints to the NRC for transmission to the FBI. The licensee shall use the information received from the FBI as part of the required background investigation to determine whether the individual will be granted or denied unescorted access to category 1 or category 2 quantities of radioactive materials. DHS 157.9703(1)(b)(b) The licensee shall notify each affected individual that the individual’s fingerprints will be used to secure a review of the individual’s criminal history record, and shall also provide notice to the individual of the procedures for revising the record or adding explanations to the record. DHS 157.9703(1)(c)(c) Fingerprinting is not required if a licensee is reinstating an individual’s unescorted access authorization to category 1 or category 2 quantities of radioactive materials and all the following apply: DHS 157.9703(1)(c)1.1. The individual returns to the same facility that granted unescorted access authorization within 365 days of the termination of his or her unescorted access authorization. DHS 157.9703(1)(c)2.2. The individual’s previous unescorted access authorization was terminated under favorable conditions. DHS 157.9703(1)(d)(d) Fingerprints do not need to be taken if an individual, who is an employee of a licensee, contractor, manufacturer, or supplier, has been granted unescorted access to category 1 or category 2 quantities of radioactive material; access to safeguards information; or safeguards information-modified handling by another licensee based upon a background investigation conducted under this subchapter, fingerprint orders, or 10 CFR 73. An existing criminal history records check file may be transferred to a licensee asked to grant unescorted access under s. DHS 157.9705 (3). DHS 157.9703(1)(e)(e) A licensee shall use the information obtained as part of a criminal history records check solely to determine an individual’s suitability for unescorted access authorization to category 1 or category 2 quantities of radioactive materials; access to safeguards information; or safeguards information-modified handling. DHS 157.9703(2)(a)(a) A licensee may not base a final determination to deny an individual unescorted access authorization to category 1 or category 2 quantities of radioactive material solely on the basis of information received from the FBI’s criminal history records indicating any of the following: DHS 157.9703(2)(a)1.1. An arrest more than one year old for which there is no information of the disposition of the case. DHS 157.9703(2)(b)(b) A licensee may not use information received from a criminal history records check obtained under this subchapter 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 licensees use the information in any way that would discriminate among individuals on the basis of race, religion, national origin, gender, or age. DHS 157.9703(3)(a)(a) To comply with this subchapter, a licensee shall submit all of the following to the NRC: DHS 157.9703(3)(a)2.2. An electronic fingerprint scan or, where practicable, other fingerprint record for each individual requiring unescorted access to category 1 or category 2 quantities of radioactive material. DHS 157.9703 NoteNote: Materials shall be submitted to : U.S. Nuclear Regulatory Commission, Director, Division of Physical and Cyber Security Policy, ATTN: Criminal History Program/Mail Stop T-07D04M, 11545 Rockville Pike, Rockville, Maryland 20852. The standard fingerprint card, Form FD–258, ORIMDNRCOOOZ), may be obtained by emailing MAILSVS.Resource@nrc.gov. Guidance on submitting electronic fingerprints can be found at https://www.nrc.gov/security/chp.html.
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