New York is the only state that has not implemented these requirements for radioactive material licensees. The US Nuclear Regulatory Commission issued these requirements in December 2007 with an implementation date of June 2008. NRC directed all state programs to implement the fingerprinting requirements by the June 2008 deadline as well. NRC and other states implemented the fingerprinting requirements in a short time frame via orders or license conditions. Because of the restrictions on fingerprinting in Section 201-a of NYS Labor Law, we were unable to implement these requirements as a license condition or as department orders, and could only impose these in regulation.

The fingerprinting requirements were discussed in February 2008 with Deputy Secretary Balboni, representatives of the Governor's office, Office of Homeland Security, Division of Criminal Justice Services and New York State Police and it was agreed that DOH should implement the fingerprinting requirements as soon as possible. Since we are the only program that has not yet implemented these security requirements we stand alone as not being fully protective of public health and safety. We need to implement these requirements as soon as possible to close that gap.

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 tera becquerel (TBq).

³ Radioactive materials are to be considered aggregated or co-located 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.

⁴ If several radionuclides are aggregated, the sum of the ratios of the activity of each source, i of radionuclide, n, A, to the quantity of concern for radionuclide n, Q, listed for that radionuclide equals or exceeds one. That is:

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¹ Copies of these forms may be obtained from NRC. The Licensee shall 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 fingerprints taken by local law enforcement (or a private entity authorized to take fingerprints) because an authorized official must certify the identity of the person being fingerprinted. If the FBI advises the fingerprints are unclassifiable based on conditions other than poor quality, the Licensee must submit a request to NRC for alternatives. When those search results are received from the FBI, no further search is necessary. The NRC 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)

² 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 (see 28 CFR Part 16.30 through 16.34).

Statutory Authority:

The Public Health Council is authorized by Section 225(4) of the Public Health Law (PHL) to establish, amend and repeal sanitary regulations to be known as the State Sanitary Code (SSC), subject to the approval of the Commissioner of Health. PHL Sections 225(5)(p) & (q) and 201(1)(r) authorize SSC regulation of the public health aspects of ionizing radiation. These provisions authorize the regulation of radioactive materials.

The Atomic Energy Act (see 42 USC §§ 2021(j)(1), 2021(o), and 2022) requires Agreement States such as New York to comply with and adopt federal standards or their authority to regulate certain radioactive material is jeopardized. The fingerprinting and criminal history records check requirements incorporated by these regulations are such federal standards.

Legislative Objectives:

The legislative objectives of PHL Sections 225(5) and 201(1)(p) and (q) are to protect public health and safety. These regulations enhance the security of radioactive material and are consistent with this purpose.

Needs and Benefits:

The possession and use of radioactive material is regulated by the US Nuclear Regulatory Commission (NRC). The NRC has relinquished that authority to states that have entered into agreements with NRC whereby the “Agreement State” takes over the authority for regulation of radioactive material. New York became the fourth Agreement State in 1962. Currently, 35 Agreement States exist.

DOH regulates the use of radioactive material at approximately 1100 facilities in order to protect people and the environment. DOH radioactive material licensees have the primary responsibility to maintain the security and accountability of the radioactive material in their possession. The events of 9/11 put new emphasis on security to prevent the malicious use of radioactive material, such as in dirty bombs. In 2002, the New York State Office of Public Security commissioned a study of radioactive material security in NYS. A task force comprised of state and federal radiation and security experts evaluated the current security posture. This evaluation included reviewing existing regulatory structure, policies and procedures and making site visits to several different types of facilities that possess and use radioactive materials. The task force developed several recommendations to improve radioactive material security. One of those recommendations was to explore using background investigations for assessing employees who have access to certain quantities of radioactive materials.

In 2005, the department implemented new security requirements called Increased Controls (ICs) on radioactive material licensees that possess certain quantities of radioactive materials. The NRC issued IC’s on their licensees as well. The ICs included requirements for enhancing physical security of radioactive materials, coordination of security plans with local law enforcement and procedures for limiting unescorted access to radioactive materials to only those who have been determined to be trustworthy and reliable (T&R). The T&R determination is based on an evaluation of the individual’s work history, employment records and personal references but does not include fingerprinting and FBI criminal background checks.

On August 8, 2005, section 652 of the US Energy Policy Act of 2005 (EPAct), was enacted. This provision amended the fingerprinting requirements of the Atomic Energy Act (AEA). Specifically, the EPAct amended Section 149 of the AEA (see 42 USC § 2169) 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 [NRC] 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.” Therefore, in accordance with Section 149 of the AEA, as amended by the EPAct, on December 2, 2007, NRC imposed fingerprinting and FBI identification and criminal history records check requirements on all NRC IC licensees with an effective date of June 2, 2008 (NRC Order EA-07-305). Also, NRC directed the Agreement States to implement the fingerprinting requirements established in EA-07-305 on their licensees by the June 2, 2008 deadline. The DOH has determined that such requirements must be established in regulation. Since the DOH must establish these requirements in regulation, New York is the only state not to have implemented the fingerprinting requirements on its radioactive material licensees by the June 2, 2008 deadline. The NRC and all other Agreement States were able to impose the fingerprinting requirements immediately via department orders or license conditions.

Costs:

The cost impact of these regulations is a total of $50 for each affected individual; $36 for the Federal Bureau of Investigation identification and criminal history records check and $10-15 fingerprint impressions by a law enforcement agency. The later cost varies with jurisdiction. This cost will apply to several New York State government entities including the Department of Health, Roswell Park Cancer Center, State Emergency Management Office, and several SUNY facilities.

Local Government Mandates:

No local governments, county, city, town, village, school district, fire department or any other district possess the type or quantity of radioactive materials that would subject them to fingerprinting requirements.

Paperwork:

Licensees will need to obtain fingerprint cards from the NRC. Also, licensees will need to maintain records of fingerprinting, criminal history and identification checks and trustworthiness and reliability determinations for review by the Department of Health.

Duplication:

There is no duplication of this requirement by any federal, state or local agency. New York State entered into an agreement with the federal government on October 15, 1962 by which the federal government discontinued its regulatory authority and New York assumed such authority.

Alternatives:

Taking no action was rejected as not consistent with NYS policies on public security. No other alternative exist for obtaining a FBI criminal background check.

Federal Standards:

These proposed fingerprinting and criminal background and identification checks are U.S. Nuclear Regulatory Commission’s standards based on the Energy Policy Act of 2005.

Compliance Schedule:

The proposed rule will be effective upon filing with the Department of State. Affected licensees must begin to implement this immediately and it must be completed within 90 days after the effective date of the rule to implement the fingerprinting requirements. Licensees may submit a written request for more time to implement the fingerprinting requirements, in accordance with Section 16.112(c)(2). The DOH would review the request and make a determination.

Effect of rule:

No local governments possess the quantity and type of radioactive material that would subject them to the proposed rule. There are 10 small businesses that will be affected by this regulation. Program staff have spoken with these facilities and 3 have already implemented the requirements since they have offices in other states and must comply with the NRC fingerprinting requirements in those states. All of these facilities were aware of the regulations and while some facilities had questions on implementation and timing, no one expressed opposition to the fingerprinting requirements.

Compliance requirements:

All affected facilities are required to establish policies and procedures for implementing the fingerprinting requirements, including designating a Trustworthy and Reliable (T&R) Official, obtaining fingerprint cards from NRC, having the fingerprints taken by local law enforcement, and submitting the cards to NRC. The T&R Official will receive and review the results of the criminal history records check and then make a determination on unescorted access for each affected individual. Also the T&R Official must notify DOH if any individual is identified on the FBI terror watchlist. Records of approvals for unescorted access must be maintained for inspection by the Department.

The proposed regulations do not impose significant new requirements since these facilities are already implementing procedures for determining the trustworthiness and reliability of these individuals. The proposed regulations will require that they take fingerprints and use the criminal history records check as part of their T&R determination.

Professional services:

Licensees will need the services of the FBI to perform the criminal history records check. Services of a law enforcement agency or other authorized party will be needed to verify identification and collect fingerprints.

Compliance costs:

The FBI criminal history records check cost is $36 per individual, and the fee for taking fingerprinting is estimated to be $10 - $15 per individual. These are one-time costs per individual, not recurring or annual costs. Approximately 4-6 persons from each small business will be subject to fingerprinting. Indirect costs are estimated to be one-hour work time for fingerprinting for each individual.

Economic and technological feasibility:

There are no capital costs or new technology required to comply with the proposed rule.

Minimizing adverse impact:

The proposed rule establishes requirements for obtaining and using information on an individual’s criminal history for allowing access to radioactive material. However the proposed rule does not set criteria for making this determination. It is up to the licensee to set the criteria and make a determination on each affected individual. Since affected licensees have already made a T&R determination using other criteria, we do not foresee significant adverse impacts. Further, since there are a limited number of affected facilities, the program intends to conduct workshops to assist licensees with any questions related to implementing the fingerprinting requirements.

Participation:

The Department issued a notice to all affected licensees in June 2007 informing them that the NRC was considering requirements requiring criminal history record checks as part of the T&R determination and that such requirements may be implemented in NYS. In October 2007, the Department initiated a series of statewide workshops on security of radioactive materials for IC licensees. At the three most recent workshops conducted in Long Island, Buffalo and Rochester the new fingerprinting requirements were discussed. In June 2008, another notice was sent to affected licensees informing them that the DOH is moving forward with developing regulations requiring fingerprinting and FBI criminal background checks. Further the NRC has developed a web page for commonly asked questions. Since the proposed rule is essentially the same as the NRC requirements (NRC Order EA-07-305), NYS facilities are encouraged to use the NRC web page.

Types and estimated numbers of rural areas:

There are 55 facilities outside of NYC that are affected by this regulation. NYC Department of Health and Mental Hygiene will impose the same requirements on 24 facilities it regulates. The NYS DOH facilities are generally located in larger cities. A few licensees (industrial radiographers) are in commercially zoned facilities near metropolitan areas.

Reporting, recordkeeping and other compliance requirements and professional services:

Licensees will be required to obtain, process and mail fingerprint cards to the Nuclear Regulatory Commission (NRC). Licensees will maintain records of fingerprinting activities including determinations of trustworthiness and reliability for review by the Department. Licensees must notify the department if any individual is identified on the FBI terror watchlist. The need for professional services will be limited to use of the applicable local law enforcement for fingerprint impressions.

Costs:

The cost estimate for regulated parties is approximately $50 for each applicable individual. This includes $36 for the NRC to process the FBI identification and criminal history records check and approximately $10-15 for taking fingerprint impressions by a law enforcement agency. The later varies with jurisdiction.

Minimizing adverse impact:

There are no alternatives with respect to rural areas. All affected licensees will need to use the services of an approved entity to take fingerprints.

Rural area participation:

The Department issued a notice to all affected licensees in June 2007 informing them that the NRC was considering requirements requiring criminal history record checks as part of the T&R determination and that such requirements may be implemented in NYS. In October 2007, the Department initiated a series of statewide workshops on security of radioactive materials for IC licensees. At the three most recent workshops conducted in Long Island, Buffalo and Rochester the new fingerprinting requirements were discussed. In June 2008, another notice was sent to affected licensees informing them that the DOH was moving forward with developing regulations requiring fingerprinting and FBI criminal background checks. Further the NRC has developed a web page for commonly asked questions. Since the proposed rule is essentially the same as the NRC requirements (NRC Order EA-07-305), NYS facilities are encouraged to use the NRC web page.

Nature of impact:

It is anticipated that few, if any, persons will be adversely affected. The fingerprinting and criminal background check is an additional element or enhancement to the existing trustworthy and reliability (T & R) determination requirement. DOH inspections of these facilities during 2007 indicated that all persons were deemed to be trustworthy and reliable. No person was adversely affected by that evaluation. A history of criminal activity is not automatically disqualifying. The Trustworthiness and Reliability Official (TRO) will review an individual’s record of criminal activity and determine if that individual will be granted unescorted access to the applicable radioactive materials. If the determination indicates that an individual should not have unescorted access to radioactive materials, the person may be permitted to have escorted access. However, a situation where the licensee has no means to provide an escort, or has limited availability of an escort (e.g., shift work), could result in an affected individual not being able to perform tasks and duties that require access to applicable radioactive sources. In such situations the licensee may need to reassign the individual to tasks that do not require unescorted access, or reschedule tasks based on an escort’s schedule.

Categories and numbers affected:

DOH inspections indicate that approximately 500 persons will be subject to fingerprinting, including physicians and medical staff, researchers/scientists, laboratory workers, and industrial radiographers.

Regions of adverse impact:

No region will be disproportionately affected. The affected facilities are larger hospitals, universities, blood banks, research institutions and industrial radiographers. The affected parties are not rural entities.

Minimizing adverse impact:

The intent of a fingerprint check is to provide additional information on an employee’s personal history. The licensee’s TRO will make a determination of an employee’s trustworthiness and reliability based on various factors (employment history, education, etc.) and the results of the criminal activity report. A history of criminal activity is not automatically disqualifying. The licensee, not the DOH, will establish disqualifying criteria.

Not all individuals who use these sources will require a criminal background check. If the radioactive material is used in the presence of more than one individual only one of those individuals must be determined to be trustworthy and reliable and may escort other individuals. During inspections of the affected licensees, DOH inspectors determine if the applicable radioactive sources are generally used in the presence of several persons. The use of radiation therapy units in hospitals involves a team of individuals including physicians, medical therapy physicists, nurses, and radiation therapy technologists. Use of industrial radiography sources is subject to two-person rule, meaning that two qualified individuals must be present. Blood banks/services are typically operated continuously (24/7) with several persons present.