[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]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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]
BILLING CODE 7590-01-P