Chapter DHS 157

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) (5) Determination basis.

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) (6) Procedures.

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) (7) Right to correct and complete information.

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 Note Note: 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) (8) Records.

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 History History: 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 DHS 157.9702 Background investigations.

DHS 157.9702(1) (1) Initial investigation.

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) (2) Grandfathering.

DHS 157.9702(2)(a) (a)

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) (b)

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 History History: 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 157.9703 DHS 157.9703 Criminal history records checks of individuals granted unescorted access.

DHS 157.9703(1) (1) General performance objective and requirements.

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) (2) Prohibitions.

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)(a)2. 2. An arrest that resulted in dismissal of the charge or an acquittal.

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) (3) Procedures for processing of fingerprint checks.

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)1. 1. One completed, legible standard fingerprint card.

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 Note Note: 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 [e-mail]. Guidance on submitting electronic fingerprints can be found at https://www.nrc.gov/security/chp.html.

DHS 157.9703(3)(b) (b) Fees for the processing of fingerprint checks are due upon application. The licensee shall submit payment with the application for the processing of fingerprints through corporate check, certified check, cashier’s check, money order, or electronic payment, made payable to “U.S. NRC.”

DHS 157.9703 Note Note: For guidance on making electronic payments, contact the Division of Physical and Cyber Security Policy by emailing [e-mail]. Combined payment for multiple applications is acceptable. The nuclear regulatory commission publishes the amount of the fingerprint check application fee on the NRC’s public website. To find the current fee amount, visit https://www.nrc.gov/security/chp.html, and follow the link titled “How do I determine how much to pay for the request?”

DHS 157.9703(3)(c) (c) The nuclear regulatory commission will forward to the submitting licensee all data received from the FBI as a result of a licensee’s application for criminal history records checks.

DHS 157.9703 History History: CR 16-078: cr. Register January 2018 No. 745, eff. 2-1-18; renumbered from DHS 157.103 under s. 13.92 (4) (b) 1., Stats., and correction in (1) (a), (d) made under s. 13.92 (4) (b) 7., Stats., Register January 2018 No. 745; CR 22-015: r. and recr. (3) Register June 2023 No. 810, eff. 7-1-23.

DHS 157.9704 DHS 157.9704 Relief from fingerprinting, identification, and criminal history records checks and other elements of background investigation.

DHS 157.9704(1) (1) Fingerprinting, and the identification and criminal history records checks required by section 149 of the Atomic Energy Act of 1954, as amended, and other elements of the background investigation are not required for the following individuals before granting unescorted access to category 1 or category 2 quantities of radioactive materials:

DHS 157.9704(1)(a) (a) An employee of the commission or of the executive branch of the U.S. government who has undergone fingerprinting for a prior U.S. government criminal history records check.

DHS 157.9704(1)(b) (b) A member of Congress.

DHS 157.9704(1)(c) (c) An employee of a member of Congress or congressional committee who has undergone fingerprinting for a prior U.S. government criminal history records check.

DHS 157.9704(1)(d) (d) The Governor of a state or his or her designated state employee representative.

DHS 157.9704(1)(e) (e) Federal, state, or local law enforcement personnel.

DHS 157.9704(1)(f) (f) State radiation control program directors and state homeland security advisors or their designated state employee representatives.

DHS 157.9704(1)(g) (g) Agreement state employees conducting security inspections on behalf of the NRC under an agreement executed under section 274.i. of the Atomic Energy Act.

DHS 157.9704(1)(h) (h) Representatives of the International Atomic Energy Agency (IAEA) engaged in activities associated with the U.S. IAEA Safeguards Agreement who have been certified by the NRC.

DHS 157.9704(1)(i) (i) Emergency response personnel who are responding to an emergency.

DHS 157.9704(1)(j) (j) Commercial vehicle drivers for road shipments of category 1 and category 2 quantities of radioactive material.

DHS 157.9704(1)(k) (k) Package handlers at transportation facilities such as freight terminals and railroad yards.

DHS 157.9704(1)(L) (L) Any individual who has an active federal security clearance, provided that he or she makes available to the licensee the appropriate documentation. Written confirmation from the agency or employer or both that granted the federal security clearance or reviewed the criminal history records check shall be provided to a licensee. The licensee shall retain documentation of an individual’s federal security clearance and written confirmation from the agency, employer, or both that granted the federal security clearance or reviewed the criminal history records check for 3 years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material.

DHS 157.9704(1)(m) (m) Any individual employed by a service provider licensee for which the service provider licensee has conducted the background investigation for the individual and approved the individual for unescorted access to category 1 or category 2 quantities of radioactive material. The service provider license shall provide written verification to the licensee. The licensee shall retain the documentation of the written verification for 3 years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material.

DHS 157.9704(2) (2) Fingerprinting, and the identification and criminal history records checks required by section 149 of the Atomic Energy Act of 1954, as amended, are not required for an individual who has had a favorably adjudicated U.S. Government criminal history records check within the last 5 years, under a comparable U.S. Government program involving fingerprinting and a FBI identification and criminal history records check provided that he or she makes available the appropriate documentation. Written confirmation from the agency or employer or both that reviewed the criminal history records check shall be provided to the licensee. A licensee shall retain the provided documentation for 3 years from the date the individual no longer requires unescorted access to category 1 or category 2 quantities of radioactive material. These programs include, but are not limited to the following:

DHS 157.9704(2)(a) (a) National Agency Check.

DHS 157.9704(2)(b) (b) Transportation Worker Identification Credentials (TWIC) under 49 CFR 1572.

DHS 157.9704(2)(c) (c) Bureau of Alcohol, Tobacco, Firearms, and Explosives background check and clearances under 27 CFR 555.

DHS 157.9704(2)(d) (d) Health and Human Services security risk assessments for possession and use of select agents and toxins under 42 CFR 73.

DHS 157.9704(2)(e) (e) Hazardous Material security threat assessment for hazardous material endorsement to commercial driver’s license under 49 CFR 1572.

DHS 157.9704(2)(f) (f) Customs and Border Protection’s Free and Secure Trade (FAST) Program.

DHS 157.9704 History History: CR 16-078: cr. Register January 2018 No. 745, eff. 2-1-18; renumbered from DHS 157.104 under s. 13.92 (4) (b) 1., Stats., Register January 2018 No. 745.

DHS 157.9705 DHS 157.9705 Protection of information.

DHS 157.9705(1) (1) Any licensee who obtains background investigation information on an individual under this subchapter shall establish and maintain a system of files and written procedures for protection of the record and the personal information from unauthorized disclosure.