Home » 2009 Issues » June 17, 2009 » HLT-04-09-00002-A Fingerprinting and Criminal Background Check Requirements (CBCR) for Unescorted Access to Radioactive Materials
HLT-04-09-00002-A Fingerprinting and Criminal Background Check Requirements (CBCR) for Unescorted Access to Radioactive Materials
6/17/09 N.Y. St. Reg. HLT-04-09-00002-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 24
June 17, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
NOTICE OF ADOPTION
I.D No. HLT-04-09-00002-A
Filing No. 610
Filing Date. Jun. 02, 2009
Effective Date. Jun. 17, 2009
Fingerprinting and Criminal Background Check Requirements (CBCR) for Unescorted Access to Radioactive Materials
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 16.112 to Title 10 NYCRR.
Statutory authority:
Public Health Law, sections 225(5)(p), (q) and 201(1)(r)
Subject:
Fingerprinting and Criminal Background Check Requirements (CBCR) for Unescorted Access to Radioactive Materials.
Purpose:
US NRC requirements-fingerprint and CBCRs for individuals allowed unescorted access to large quantities of radioactive materials.
Text or summary was published
in the January 28, 2009 issue of the Register, I.D. No. HLT-04-09-00002-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.state.ny.us
Assessment of Public Comment
Comment (1):
The commentator disagreed with the information provided in the Statutory Authority section of the Regulatory Impact Statement. Specifically, he disagreed with the reference to U.S. Atomic Energy Act Sections 2021(o) and 2022 as applying to the New York State Agreement State Program. Further the commentator claimed that it would be difficult for the US Nuclear Regulatory Commission (NRC) to terminate or suspend its Agreement with New York State under AEA section 2021(j) if the proposed regulations are not implemented.
Response (1):
DOH's authority to implement these requirements through the proposed rule is derived, not from the Atomic Energy Act (AEA) but from the New York Public Health Law (Sections 225(5)(p), 225(5)(q) and 201(1)(r)). The commentator correctly pointed out that AEA Sections 2021(o) and 2022 apply to byproduct material as defined in AEA Section 2014(e) and was not related to the New York State Agreement with NRC. However the commentator acknowledged that under AEA Section 2021(j)(1), the NRC can terminate or suspend its agreement with New York State upon a finding that termination or suspension is required to protect the public health and safety. The commentator's claimed that "it would be very difficult for the NRC to show that New York State's program did not protect public health and safety," and "it is difficult to see how NRC could prevail in any objective forum were it to claim that New York's program was inadequate to protect public health and safety merely because the proposed regulation had not been promulgated" are speculative.
Comment (2):
The commentator took issue with proposed section 16.112(c)(1) that requires licensees to certify that the licensee's Trustworthy and Reliable (T&R) Official is deemed trustworthy and reliable. He stated that this requirement is either not enforceable or not useful.
Response (2):
The requirement to certify a T&R Official is taken directly from NRC Orders to their licensees (NRC Order EA-07-305) and is a critical component of these regulations. A T&R Official is an individual who the licensee determines to be trustworthy and reliable, based on the three minimum requirements for background checks of the Increased Controls (employment history, education, and personal references). Fingerprinting and criminal history checks are only needed if the T&R Official has, or will have, unescorted access to radioactive material quantities of concern. Affected licensees that do not certify a T&R Official would be in non-compliance with this requirement and subject to enforcement action under Sections 12 and 206(4)(c) of the Public Health Law.
Comment (3):
The commentator discussed proposed section 16.112(c)(4) that requires the licensee to notify DOH and the NRC within 24 hours if the results from a criminal history record check indicate an individual is listed on the FBI Terrorist Screening Data Base. The commentator was concerned about what DOH will do with this information.
Response (3):
The requirement for 24-hour notification of DOH and NRC if the results from a criminal history record check indicate an individual is listed on the FBI Terrorist Screening Data Base is taken from the NRC requirements. The Department will evaluate such information in conjunction with the NRC and make determinations, on a case by case basis, as to what actions, if any, are necessary.
Comment (4):
The commentator addressed the proposed section 16.112(e) that requires licensees to make a determination that the T&R Official is trustworthy and reliable in accordance with its Increased Controls license conditions. The commentator stated that the text of the increased controls was not provided with the proposed rulemaking and that DOH has refused to provide such information.
Response (4):
The Increased Control license conditions are not new requirements and were implemented in accordance with section 16.18(a) of Part 16 of the State Sanitary Code. The Department is not aware of any request for copies of Increased Control license conditions which are available upon request.
Comment (5):
The commentator discussed proposed section 16.112(f)(8) that exempts certain persons from the fingerprinting requirements. The commentator's claimed "It is impossible to foresee any circumstance where an individual falling into one of these seven categories could ever be an employee, contractor, manufacturer or supplier of a DOH licensee."
Response (5):
The Department disagrees. The categories include local law enforcement personnel and State Radiation Control Program Directors. Local municipalities and state agencies (including the Department of Environmental Conservation) are currently DOH radioactive material licensees.
Comment (6):
The commentator expressed concern that the licensee is offered too much discretion in determining who can have access to radioactive materials and suggests that the proposed rule be changed to provide criterion offenses which would trigger denial of unescorted access by the licensee.
Response (6):
The proposed rule incorporates requirements that are consistent with the requirements of all other Agreement States and the NRC.
Comment (7):
The commentator requested that the Department provide guidance for licensees to implement the proposed section 16.112(k)(2) which prohibits the licensee from using the information received from a criminal history records check in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States or Article 1 of the New York State Constitution, or in a manner which would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
Response (7):
The Department has concluded that this provision can be understood by licensees without Department guidance. This is apparent from the fact that this provision has been effective, as an emergency rule, since November 2008, and no licensee has requested guidance as to its meaning.
Comment (8):
The commentator was concerned that the proposed rule does not provide criteria for licensees to deny individuals access to radioactive materials in quantities of concern. The commentator provides examples of other New York State regulations that provide such criteria.
