[Federal Register Volume 71, Number 113 (Tuesday, June 13, 2006)]
[Rules and Regulations]
[Pages 33989-33992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9178]



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  Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / Rules 
and Regulations  

[[Page 33989]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN 3150-AH94


Relief From Fingerprinting and Criminal History Records Check for 
Designated Categories of Individuals

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is issuing a new 
regulation to relieve certain categories of individuals who have been 
approved by the Commission for access to Safeguards Information (SGI) 
from the fingerprinting and criminal history records check requirements 
of section 149 of the Atomic Energy Act of 1954 (AEA), as amended.

DATES: Effective Date: June 13, 2006.

FOR FURTHER INFORMATION CONTACT: Jared K. Heck, Attorney, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-1623, e-mail, [email protected], or Marjorie 
U. Rothschild, Senior Attorney, Office of the General Counsel, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 
(301) 415-1633, e-mail, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Need for Rule
III. Analysis of Rule
IV. Basis for Immediate Effectiveness and Dispensing With Notice and 
Comment
V. Voluntary Consensus Standards
VI. Finding of No Significant Impact: Availability
VII. Paperwork Reduction Act Statement
VIII. Regulatory Analysis
IX. Backfit Analysis
X. Small Business Regulatory Enforcement Fairness Act

I. Background

    SGI is a form of sensitive, unclassified, security-related 
information that the Commission has the authority to designate and 
protect under section 147 of the AEA. Requirements governing access to 
and handling of SGI are presented in NRC regulations in Sec.  73.21 and 
various NRC orders,\1\ and are similar in some ways to requirements for 
the protection of Classified National Security Information. Consistent 
with its mission to promote common defense and security, the Commission 
shares SGI with a variety of licensees, Federal, State, and local law 
enforcement officials, members of Congress, and other individuals who 
need to know SGI to perform job functions related to the protection of 
nuclear facilities and materials.
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    \1\ See, In the Matter of All Licensees Authorized to 
Manufacture or Initially Transfer Items Containing Radioactive 
Material for Sale or Distribution and Possess Certain Radioactive 
Material of Concern and All Other Persons Who Obtain Safeguards 
Information Described Herein; Order Issued on November 25, 2003 
Imposing Requirements for the Protection of Certain Safeguards 
Information (Effective Immediately), (January 23, 2004; 69 FR 3397). 
In this order and certain other common defense and security orders, 
the Commission has also used the term ``SGI-M'' to identify modified 
handling requirements for SGI related to materials licensees.
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    Recently, Congress enacted legislation that imposes new 
requirements governing access to SGI. In section 652 of the Energy 
Policy Act of 2005,\2\ which amended AEA section 149, Congress required 
the Commission to ensure that ``any individual'' who is permitted 
access to SGI be fingerprinted and undergo a criminal history records 
check. Previously, AEA section 149 only required fingerprinting and 
criminal history records checks of individuals seeking access to SGI 
(as defined in Sec.  73.2) from a power reactor licensee or license 
applicant.
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    \2\ Public Law 109-58 (August 8, 2005).
---------------------------------------------------------------------------

    Under AEA section 149, as amended, the Commission must require the 
fingerprinting and submission of fingerprints to the Attorney General 
for an identification and criminal history records check of any 
individual permitted access to SGI, unless the Commission, by rule, has 
relieved that individual from the fingerprinting, identification, and 
criminal history records check requirements. The Commission may relieve 
individuals from those requirements ``if the Commission finds that such 
action is consistent with its obligations to promote the common defense 
and security and to protect the health and safety of the public.'' 
Currently, the Commission has no rule that would relieve individuals 
who seek access to SGI from non-power reactor licensees or the 
Commission from the expanded fingerprinting and criminal history 
records check requirements.
    Current regulations in Sec. Sec.  73.21 and 73.57 relieve Governors 
or their designated representatives, certain members of Congress, 
certain representatives of the International Atomic Energy Agency 
(IAEA), and State and local law enforcement organizations from 
fingerprinting and criminal history records checks if those individuals 
seek access to SGI as defined in Sec.  73.2. This final rule continues 
that relief and expands it so that individuals described in this final 
rule need not be fingerprinted or undergo a criminal history check 
before receiving access to SGI not currently subject to the 
requirements of 10 CFR part 73 (i.e., SGI that the Commission has 
designated and required to be protected by order).

II. Need for Rule

    When the Energy Policy Act became law on August 8, 2005, the 
Commission had already published a proposed SGI rule that would change 
requirements governing access to and handling of SGI.\3\ The Commission 
planned to significantly revise (and subsequently republish) the 
proposed SGI rule to fully implement the fingerprinting, 
identification, and criminal history check requirements established by 
the Energy Policy Act, but the revision has taken longer than initially 
expected. The Commission still intends to publish a revised proposed 
SGI rule for public comment in the near future, but in the meantime, 
the Commission has an immediate and ongoing need to share SGI with 
certain international and domestic government representatives, and has 
decided to issue an immediately effective final rule of limited scope 
to relieve certain individuals from the fingerprinting and

[[Page 33990]]

criminal history check requirements of AEA section 149.
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    \3\ See proposed rule, Protection of Safeguards Information 
(February 11, 2005; 70 FR 7196).
---------------------------------------------------------------------------

    The individuals relieved from fingerprinting and criminal history 
checks under the final rule include Federal, State, and local officials 
involved in security planning and incident response, Agreement State 
employees who evaluate licensee compliance with security-related 
orders, and members of Congress who request SGI as part of their 
oversight function. Interrupting those individuals' access to SGI to 
perform fingerprinting and criminal history checks would harm vital 
inspection, oversight, planning, and enforcement functions, thereby 
impairing day-to-day implementation of the NRC's regulatory programs to 
the detriment of the common defense and security. It might also impair 
communications among the NRC, its licensees, and first responders in 
the event of an imminent security threat or other emergency. The final 
rule will permit the Commission to provide SGI without interruption to 
government officials who need the information to be effective in their 
day-to-day efforts to ensure the continued security of nuclear 
facilities and materials. The final rule is also consistent with the 
Commission's obligations to promote the common defense and security and 
to protect the health and safety of the public.
    The final rule will also permit the Commission to continue sharing 
SGI with its international partners. The information shared in these 
exchanges helps to maintain the security of nuclear facilities and 
materials domestically and abroad. Requiring fingerprinting and 
criminal history checks of foreign representatives who participate in 
these exchanges could strain the Commission's cooperative relationships 
with its international counterparts, and might delay needed exchanges 
of information to the detriment of current security initiatives both at 
home and abroad. The final rule will permit the Commission to avoid 
that result, and is consistent with the Commission's obligations to 
promote the common defense and security and to protect the health and 
safety of the public.

III. Analysis of Rule

    The final rule provides relief from the fingerprinting and criminal 
history records check requirements set forth in AEA section 149 for the 
following individuals:
    (1) An employee of the Commission or of the Executive Branch of the 
United States government who has undergone fingerprinting for a prior 
U.S. government criminal history check;
    (2) A member of Congress;
    (3) An employee of a member of Congress or Congressional committee 
who has undergone fingerprinting for a prior U.S. government criminal 
history check;
    (4) The Governor of a State or his or her designated State employee 
representative;
    (5) A representative of a foreign government organization that is 
involved in planning for, or responding to, nuclear or radiological 
emergencies or security incidents who the Commission approves for 
access to SGI;
    (6) Federal, State, or local law enforcement personnel;
    (7) State Radiation Control Program Directors and State Homeland 
Security Advisors or their designated State employee representatives;
    (8) Agreement State employees conducting security inspections on 
behalf of the NRC under an agreement executed under section 274.i. of 
the AEA; and
    (9) 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.
    The individuals described previously are considered trustworthy and 
reliable to receive SGI by virtue of their occupational status and have 
either already undergone a background or criminal history check as a 
condition of their employment, or are subject to direct oversight by 
government authorities in their day-to-day job functions. Under the 
final rule, if individuals in these categories need to know SGI to 
perform a job function, they may have access to SGI without being 
fingerprinted or undergoing a criminal history check.
    Foreign representatives described in the final rule have been 
relieved from fingerprinting and criminal history checks because those 
checks would not likely yield any information probative of the 
representative's trustworthiness--domestic criminal databases typically 
would not have records on foreign representatives. In addition, 
requiring fingerprinting and criminal history checks of foreign 
government representatives could strain existing cooperative 
relationships with the Commission's foreign counterparts, thus 
undermining the Commission's international efforts to enhance nuclear 
security. Under the final rule, foreign representatives would only be 
granted access to SGI on a case-by-case basis with the approval of the 
Commission.
    The phrase ``a representative of a foreign government 
organization'' in the final rule includes more than employees of 
foreign governments. The phrase may encompass members of private 
industry, local first responders, vendors, law enforcement officials, 
or other individuals designated by a foreign government organization 
involved in nuclear emergency planning or incident response to serve as 
foreign government representatives before the NRC.
    The categories of individuals relieved by the final rule from 
fingerprinting and criminal history checks are broader than those 
relieved by existing regulations in Sec. Sec.  73.21 and 73.57 because 
the fingerprinting and criminal history records checks required by AEA 
section 149 now apply much more broadly. Prior to the Energy Policy Act 
amendments to AEA section 149, the Commission could provide SGI to its 
international and domestic government partners without first obtaining 
fingerprints and criminal history checks of those individuals, and 
without having to except them by rule. The fingerprinting and criminal 
history check requirements of AEA section 149 applied only when power 
reactor licensees provided SGI to an individual. To permit the 
Commission to continue its pre-Energy Policy Act practice of sharing 
SGI with international and domestic government representatives involved 
in nuclear security inspection, oversight, enforcement, planning, and 
emergency response, the final rule relieves individuals to whom the 
Commission has historically provided SGI from the expanded 
fingerprinting and criminal history records checks of AEA section 149, 
as amended. Accordingly, the list of individuals relieved from 
fingerprinting and criminal history check requirements has been 
lengthened.
    The expanded relief is not limited to cases where the Commission is 
providing access to SGI. A licensee or other person with lawful access 
to SGI may share that information with an individual described in the 
final rule without first performing fingerprinting and a criminal 
history check of that individual, provided that individual needs to 
know the information.
    Finally, the final rule also includes an expanded definition of 
``Safeguards Information'' applicable only to new Sec.  73.59 that 
would be coextensive in scope with AEA section 147. The expanded 
definition is necessary to make clear that the exceptions from 
fingerprinting and criminal history checks contained in the new Sec.  
73.59 apply regardless of whether the SGI being sought relates to 
source, byproduct, or special nuclear material. Without the expanded 
definition, the exceptions would only apply in cases

[[Page 33991]]

where an individual seeks access to ``Safeguards Information'' as 
defined in existing Sec.  73.2, which is limited to information related 
to (1) security measures for the physical protection of special nuclear 
material, or (2) security measures for the physical protection and 
location of certain plant equipment vital to the safety of production 
and utilization facilities. The Commission intends the relief from the 
fingerprinting and criminal history check requirements embodied in the 
final rule to apply regardless whether the SGI being sought relates to 
source, byproduct, or special nuclear material, and regardless of who 
is providing access to the SGI at issue.

IV. Basis for Immediate Effectiveness and Dispensing With Notice and 
Comment

    Generally, the Commission issues final rules using the public 
notice and comment procedures set forth in the Administrative Procedure 
Act (APA). Under 5 U.S.C. 553, the Commission may dispense with those 
procedures where it finds for ``good cause'' that public procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' In 
this case, the Commission finds that notice-and-comment procedures are 
not required because the usual public rulemaking procedures are 
impracticable.
    As set forth in Section II, the Commission has an immediate and 
ongoing need to share SGI with Federal, State, and local law 
enforcement officials, members of Congress, Governors and their 
designees, representatives of foreign government organizations, and 
certain other individuals described in the final rule to ensure that a 
range of inspection, enforcement, planning, oversight, and response 
functions related to the security of nuclear materials continues 
uninterrupted. The Commission has three options to meet this need: (1) 
Refrain from sharing SGI with individuals described in the rule until 
they undergo fingerprinting and a criminal history records check; (2) 
Refrain from sharing SGI with individuals described in the rule until 
the Commission completes notice-and-comment rulemaking to provide 
exceptions; or (3) Relieve individuals who require SGI to perform day-
to-day inspection, enforcement, planning, oversight, and response 
functions from fingerprinting and criminal history records check 
requirements by rule.
    The first option is impracticable because it would seriously 
inhibit sharing of SGI until fingerprinting and criminal history 
records checks could be completed, thus frustrating the ability of 
individuals described in the final rule to perform vital day-to-day 
nuclear security functions. The second option is impracticable because 
the Commission would have to continue to withhold access to SGI during 
the notice and comment period, which would have the same detrimental 
effects on security as would the first option. The only way to ensure 
the flow of SGI continues to foreign and domestic government personnel 
who have a need to know while complying with the requirements of AEA 
section 149, is to issue a final rule relieving those individuals from 
fingerprinting and criminal history records check requirements without 
following notice and comment procedures. Therefore, under 5 U.S.C. 553, 
good cause exists to dispense with those procedures.
    As mentioned previously, the Commission still plans to revise and 
publish for comment its proposed SGI rule. At that time, the public 
will be able to comment on whether any additional categories of 
individuals should be relieved from the fingerprinting and criminal 
history records check requirements of AEA section 149.
    Finally, this rule is immediately effective upon publication in 
accordance with 5 U.S.C. 553(d)(1), because it is a substantive rule 
which grants an exemption or relieves a restriction. Specifically, the 
rule relieves certain individuals from the fingerprinting and criminal 
history records check requirements of AEA section 149.

V. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies unless using such a standard is inconsistent with 
applicable law or is otherwise impractical. In this final rule, the NRC 
is granting relief from criminal history checks, including 
fingerprinting, for access to Safeguards Information by persons in 
certain occupational categories. This action does not involve the 
establishment of a standard that contains generally applicable 
requirements.

VI. Finding of No Significant Impact: Availability

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A of 10 CFR part 51, that this rule is not a major Federal 
action significantly affecting the quality of the human environment 
and, therefore, an environmental impact statement is not required. As 
permitted by section 149.b. of the AEA, this rulemaking relieves 
individuals in certain occupational categories from the criminal 
history records check and fingerprinting requirements imposed by the 
Energy Policy Act of 2005 to facilitate the sharing of SGI among 
international and domestic government representatives and officials. 
The rule does not require any individuals to take action that would 
have an environmental impact. A copy of the environmental assessment 
supporting this finding is available at http://www.nrc.gov/reading-rm/adams.html ML061520342.

VII. Paperwork Reduction Act Statement

    This final rule does not contain new or amended information 
collection requirements subject to the requirements of 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 
3150-002.

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 
OMB control number.

VIII. Regulatory Analysis

    A regulatory analysis has not been prepared for this regulation 
because it relieves restrictions and does not impose any regulatory 
burdens on licensees.

IX. Backfit Analysis

    No backfit analysis is required because the final rule does not 
modify or add to systems, structures, components, or the design of a 
facility, or the design approval or manufacturing license for a 
facility, or the procedures or organization required to design, 
construct, or operate a facility. Therefore, the final rule does not 
impose a backfit as defined in 10 CFR 50.109(a)(1), 70.76(a)(1), 
72.62(a)(1) and (2), or 76.76(a)(1).

X. Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
major rule and has verified this determination with the Office of

[[Page 33992]]

Information and Regulatory Affairs of OMB.

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.

0
For the reasons set out in the preamble, and under the authority of the 
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 
1974, as amended; the Energy Policy Act of 2005, and 5 U.S.C. 552 and 
553; the NRC is adopting the following amendments to 10 CFR part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

0
1. The authority citation for part 73 is revised to read as follows:

    Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended, 
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 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); Energy Policy Act of 2005, Public 
Law No. 109-58, 119 Stat. 594 (2005).
    Section 73.1 also issued under secs. 135, 141, Public Law 97-
425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) 
also issued under sec. 301, Public Law 96-295, 94 Stat. 789 (42 
U.S.C. 5841 note). Section 73.57 is issued under sec. 606, Public 
Law 99-399, 100 Stat. 876 (42 U.S.C. 2169).


0
2. A new Sec.  73.59 is added to read as follows:


Sec.  73.59  Relief from fingerprinting and criminal history records 
check for designated categories of individuals.

    (a) For purposes of this section, the phrase ``Safeguards 
Information'' means information not otherwise classified as National 
Security Information or Restricted Data, which specifically identifies 
a licensee's or applicant's detailed--
    (1) Control and accounting procedures or security measures 
(including security plans, procedures, and equipment) for the physical 
protection of special nuclear material, by whomever possessed, whether 
in transit or at fixed sites, in quantities determined by the 
Commission to be significant to the public health and safety or the 
common defense and security;
    (2) Security measures (including security plans, procedures, and 
equipment) for the physical protection of source material or byproduct 
material, by whomever possessed, whether in transit or at fixed sites, 
in quantities determined by the Commission to be significant to the 
public health and safety or the common defense and security;
    (3) Security measures (including security plans, procedures, and 
equipment) for the physical protection of and the location of certain 
plant equipment vital to the safety of production or utilization 
facilities involving nuclear materials covered by paragraphs (a)(1) and 
(a)(2) of this section; or
    (4) Any other information within the scope of Section 147 of the 
Atomic Energy Act of 1954, as amended, the unauthorized disclosure of 
which, as determined by the Commission through order or regulation, 
could reasonably be expected to have a significant adverse effect on 
the health and safety of the public or the common defense and security 
by significantly increasing the likelihood of radiological sabotage or 
theft or diversion of source, byproduct, or special nuclear material.
    (b) Notwithstanding any other provision of the Commission's 
regulations, 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 the following individuals prior 
to granting access to Safeguards Information:
    (1) An employee of the Commission or of the Executive Branch of the 
United States government who has undergone fingerprinting for a prior 
U.S. government criminal history check;
    (2) A member of Congress;
    (3) An employee of a member of Congress or Congressional committee 
who has undergone fingerprinting for a prior U.S. government criminal 
history check;
    (4) The Governor of a State or his or her designated State employee 
representative;
    (5) A representative of a foreign government organization that is 
involved in planning for, or responding to, nuclear or radiological 
emergencies or security incidents who the Commission approves for 
access to Safeguards Information;
    (6) Federal, State, or local law enforcement personnel;
    (7) State Radiation Control Program Directors and State Homeland 
Security Advisors or their designated State employee representatives;
    (8) Agreement State employees conducting security inspections on 
behalf of the NRC pursuant to an agreement executed under section 
274.i. of the Atomic Energy Act;
    (9) 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.

    Dated at Rockville, Maryland, this 7th day of June, 2006.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E6-9178 Filed 6-12-06; 8:45 am]
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