[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Notices]
[Pages 59140-59143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16558]
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NUCLEAR REGULATORY COMMISSION
[EA-06-203]
In the Matter of All Licensees Identified in Attachment 1
(Redacted) and All Other Persons Who Seek or Obtain Access to
Safeguards Information Described Herein, Order Imposing Fingerprinting
and Criminal History Records Check Requirements for Access to
Safeguards Information (Effective Immediately)
I
The Licensees identified in Attachment 1\1\ to this Order hold
licenses issued in accordance with the Atomic Energy Act (AEA) of 1954,
as amended, the U.S. Nuclear Regulatory Commission (NRC or Commission)
or Agreement States, authorizing them to engage in an activity subject
to regulation by the Commission or Agreement States. On August 8, 2005,
the Energy Policy Act of 2005 (EPAct) was enacted. Section 652 of the
EPAct amended Section 149 of the AEA to require fingerprinting and a
Federal Bureau of Investigation (FBI) identification and criminal
history records check of any person who is to be permitted to have
access to Safeguards Information (SGI) \2\. The NRC's implementation of
this requirement cannot await the completion of the SGI rulemaking,
which is underway, because the EPAct fingerprinting and criminal
history records check requirements for access to SGI were immediately
effective upon enactment of the EPAct. Although the EPAct permits the
Commission by rule to except certain categories of individuals from the
fingerprinting requirement, which the Commission has done (see 10 CFR
73.59, 71 FR 33,989 (June 13, 2006)), it is unlikely that licensee
employees or others are excepted from the fingerprinting requirement by
the ``fingerprinting
[[Page 59141]]
relief'' rule. Individuals relieved from fingerprinting and criminal
history records checks under the relief rule include Federal, State,
and local officials and law enforcement personnel; Agreement State
inspectors who conduct security inspections on behalf of the NRC;
members of Congress and certain employees of members of Congress or
Congressional Committees, and representatives of the International
Atomic Energy Agency (IAEA) or certain foreign government
organizations. In addition, individuals who have a favorably-decided
U.S. Government criminal history records check within the last five (5)
years, or individuals who have active Federal security clearances
(provided in either case that they make available the appropriate
documentation), have satisfied the EPAct fingerprinting requirement and
need not be fingerprinted again. Therefore, in accordance with Section
149 of the AEA, as amended by the EPAct, the Commission is imposing
additional requirements for access to SGI, as set forth by this Order,
so that affected licensees can obtain and grant access to SGI.\3\ This
Order also imposes requirements for access to SGI by any person,\4\
from any person, whether or not a Licensee, Applicant, or Certificate
Holder of the Commission or Agreement States.
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\1\ Attachment 1 contains sensitive information and will not be
released to the public.
\2\ Safeguards Information 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.
\3\ The storage and handling requirements for certain SGI have
been modified from the existing 10 CFR part 73 SGI requirements that
require a higher level of protection; such SGI is designated as
Safeguards Information--Modified Handling (SGI-M). However, the
information subject to the SGI-M handling and protection
requirements is SGI, and licensees and other persons who seek or
obtain access to such SGI are subject to this Order.
\4\ Person means (1) any individual, corporation, partnership,
firm, association, trust, estate, public or private institution,
group, government agency other than the Commission or the Department
of Energy, except that the Department of Energy shall be considered
a person with respect to those facilities of the Department of
Energy specified in section 202 of the Energy Reorganization Act of
1974 (88 Stat. 1244), any State or any political subdivision of, or
any political entity within a State, any foreign government or
nation or any political subdivision of any such government or
nation, or other entity; and (2) any legal successor,
representative, agent, or agency of the foregoing.
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II
The Commission has broad statutory authority to protect and
prohibit the unauthorized disclosure of SGI. Section 147 of the AEA
grants the Commission explicit authority to issue such Orders as
necessary to prohibit the unauthorized disclosure of SGI. Furthermore,
Section 652 of the EPAct amended Section 149 of the AEA to require
fingerprinting and an FBI identification and a criminal history records
check of each individual who seeks access to SGI. In addition, no
person may have access to SGI unless the person satisfies all other
applicable requirements (e.g., 10 CFR 73.21).
In order to provide assurance that the Licensees identified in
Attachment 1 are implementing appropriate measures to comply with the
fingerprinting and criminal history records check requirements for
access to SGI, all Licensees identified in Attachment 1 shall implement
the requirements of this Order. In addition, pursuant to 10 CFR 2.202,
I find that in light of the common defense and security matters
identified above, which warrant the issuance of this Order, the public
health, safety and interest require that this Order be effective
immediately.
III
Accordingly, pursuant to Sections 104, 147, 149, 161b, 161i, 161o,
182 and 186 of the Atomic Energy Act of 1954, as amended, and the
Commission's regulations in 10 CFR 2.202, 10 CFR parts 50 and 73, it is
hereby ordered, effective immediately, that all licensees identified in
attachment 1 to this order and all other persons who seek or obtain
access to safeguards information, as described above, shall comply with
the requirements set forth in this order.
A.1. No person may have access to SGI unless that person has a
need-to-know the SGI, has been fingerprinted or who has a favorably-
decided FBI identification and criminal history records check, and
satisfies all other applicable requirements for access to SGI (e.g., 10
CFR 73.21). Fingerprinting and the FBI identification and criminal
history records check are not required, however, for any person who is
relieved from that requirement by 10 CFR 73.59 (71 FR 33,989 (June 13,
2006)), or who has a favorably-decided U.S. Government criminal history
records check within the last five (5) years, or who has an active
Federal security clearance, provided in each case that the appropriate
documentation is made available to the Licensee's NRC-approved
reviewing official.
2. No person may have access to any SGI if the NRC has determined,
based on fingerprinting and an FBI identification and criminal history
records check, that the person may not have access to SGI.
B. No person may provide SGI to any other person except in
accordance with Condition III.A. above. Prior to providing SGI to any
person, a copy of this Order shall be provided to that person.
C. All Licensees identified in Attachment 1 to this Order shall
comply with the following requirements:
1. The Licensee shall, within twenty (20) days of the date of this
Order, establish and maintain a fingerprinting program that meets the
requirements of Attachment 2 to this Order.
2. The Licensee shall, within twenty (20) days of the date of this
Order, submit the fingerprints of one (1) individual who currently has
access to SGI in accordance with applicable requirements (e.g., 10 CFR
73.21), who continues to need access to SGI, and who the Licensee
nominates as the ``reviewing official'' for determining access to SGI
by other individuals. The NRC will determine whether this individual
(or any subsequent reviewing official) may have access to SGI and,
therefore, will be permitted to serve as the Licensee's reviewing
official.\5\ The Licensee may at the same time or later submit the
fingerprints of other individuals to whom the Licensee seeks to grant
access to SGI. Fingerprints shall be submitted and reviewed in
accordance with the procedures described in Attachment 2 of this Order.
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\5\ The NRC's determination of this individual's access to SGI
in accordance with the process described in Enclosure 3 to the
transmittal letter of this Order is an administrative determination
that is outside the scope of this Order.
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3. The Licensee may allow any individual who currently has access
to SGI in accordance with the applicable requirements (e.g., 10 CFR
73.21) to continue to have access to previously-designated SGI without
being fingerprinted, pending a decision by the NRC-approved reviewing
official (based on fingerprinting, an FBI criminal history records
check and satisfying other applicable requirements) that the individual
may continue to have access to SGI. The Licensee shall make
determinations on continued access to SGI by December 1, 2006, in part
on the results of the fingerprinting and criminal history records
check, for those individuals that were previously granted access to SGI
before the issuance of this Order.
4. The Licensee shall, in writing, within twenty (20) days of the
date of this Order, notify the Commission, (1) if it is unable to
comply with any of the requirements described in this Order, including
Attachment 2, or (2) if compliance with any of the requirements is
unnecessary in its specific circumstances. The notification shall
provide the Licensee's justification for seeking relief from or
variation of any specific requirement.
Licensee responses to C.1., C.2., C.3., and C.4. above shall be
submitted to the Director, Office of Nuclear Reactor Regulation, U.S.
Nuclear Regulatory Commission, Washington, DC 20555. In
[[Page 59142]]
addition, Licensee responses shall be marked as ``Security-Related
Information--Withhold Under 10 CFR 2.390.''
The Director, Office of Nuclear Reactor Regulation, may, in
writing, relax or rescind any of the above conditions upon
demonstration of good cause by the Licensee.
IV
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order, and may request a hearing on this Order, within twenty (20) days
of the date of this Order. Where good cause is shown, consideration
will be given to extending the time to request a hearing. A request for
extension of time in which to submit an answer or request a hearing
must be made in writing to the Director, Office of Nuclear Reactor
Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
and include a statement of good cause for the extension. The answer may
consent to this Order. Unless the answer consents to this Order, the
answer shall, in writing and under oath or affirmation, specifically
set forth the matters of fact and law on which the Licensee or other
person adversely affected relies and the reasons as to why the Order
should not have been issued. Any answer or request for a hearing shall
be submitted to the Secretary, Office of the Secretary, U.S. Nuclear
Regulatory Commission, Attn: Rulemakings and Adjudications Staff,
Washington, DC 20555. Copies also shall be sent to the Director, Office
of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission,
Washington, DC 20555, and to the Assistant General Counsel for
Materials Litigation and Enforcement at the same address. Because of
possible delays in delivery of mail to United States Government
offices, it is requested that answers and requests for hearing be
transmitted to the Secretary of the Commission either by means of
facsimile transmission to 301-415-1101 or by e-mail to
[email protected] and also to the Office of the General Counsel
either by means of facsimile transmission to 301-415-3725 or by e-mail
to [email protected]. If a person other than the Licensee requests
a hearing, that person shall set forth with particularity the manner in
which his/her interest is adversely affected by this Order and shall
address the criteria set forth in 10 CFR 2.309.
If a hearing is requested by the Licensee or a person whose
interest is adversely affected, the Commission will issue an Order
designating the time and place of any hearing. If a hearing is held,
the issue to be considered at such hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(I), the Licensee may, in addition to
demanding a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error. In the absence of any request for
hearing, or written approval of an extension of time in which to
request a hearing, the provisions as specified above in Section III
shall be final twenty (20) days from the date of this Order without
further order or proceedings. If an extension of time for requesting a
hearing has been approved, the provisions as specified above in Section
III shall be final when the extension expires if a hearing request has
not been received. An answer or a request for hearing shall not stay
the immediate effectiveness of this order.
Dated this 29th day of September 2006.
For the Nuclear Regulatory Commission.
J.E. Dyer,
Director, Office of Nuclear Reactor Regulation.
Attachment 2--Requirements for Fingerprinting and Criminal History
Records Checks of Individuals When Licensee's Reviewing Official Is
Determining Access to Safeguards Information
General Requirements
Licensees shall comply with the requirements of this attachment.
A. 1. Each Licensee subject to the provisions of this attachment
shall fingerprint each individual who is seeking or permitted access to
Safeguards Information (SGI). The Licensee shall review and use the
information received from the Federal Bureau of Investigation (FBI) and
ensure that the provisions contained in the subject Order and this
attachment are satisfied.
2. The Licensee shall notify each affected individual that the
fingerprints will be used to secure a review of his/her criminal
history record and inform the individual of the procedures for revising
the record or including an explanation in the record, as specified in
the ``Right to Correct and Complete Information'' section of this
attachment.
3. Fingerprints need not be taken if an employed individual (e.g.,
a Licensee employee, contractor, manufacturer, or supplier) is relieved
from the fingerprinting requirement by 10 CFR 73.59, has a favorably-
decided U.S. Government criminal history records check within the last
five (5) years, or has an active Federal security clearance. Written
confirmation from the Agency/employer which granted the Federal
security clearance, or reviewed the criminal history records check must
be provided. The Licensee must retain this documentation for a period
of three (3) years from the date the individual no longer requires
access to SGI associated with the Licensee's activities.
4. All fingerprints obtained by the Licensee pursuant to this Order
must be submitted to the Commission for transmission to the FBI.
5. The Licensee shall review the information received from the FBI
and consider it, in conjunction with the applicable requirements (e.g.,
10 CFR 73.21) in making a determination whether to grant access to SGI
to individuals who have a need-to-know the SGI.
6. The Licensee shall use any information obtained as part of a
criminal history records check solely for the purpose of determining an
individual's suitability for access to SGI.
7. The Licensee shall document the basis for its determination
whether to grant access to SGI.
B. The Licensee shall notify the NRC of any desired change in
reviewing officials. The NRC will determine whether the individual
nominated as the new reviewing official may have access to SGI based on
a previously-obtained or new criminal history records check and,
therefore, will be permitted to serve as the Licensee's reviewing
official.
Prohibitions
A Licensee shall not base a final determination to deny an
individual access to SGI solely on the basis of information received
from the FBI involving: An arrest more than one (1) year old for which
there is no information of the disposition of the case, or an arrest
that resulted in dismissal of the charge or an acquittal.
A Licensee shall not use information received from a criminal
history records check obtained pursuant to this Order 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 the
Licensee use the information in any way which would discriminate among
individuals on the basis of race, religion, national origin, sex, or
age.
[[Page 59143]]
Procedures for Processing Fingerprint Checks
For the purpose of complying with this Order, Licensees shall,
using an appropriate method listed in 10 CFR 73.4, submit to the NRC's
Division of Facilities and Security, Mail Stop T-6E46, one completed,
legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where
practicable, other fingerprint records for each individual seeking
access to Safeguards Information, to the Director of the Division of
Facilities and Security, marked for the attention of the Division's
Criminal History Check Section. Copies of these forms may be obtained
by writing the Office of Information Services, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, by calling (301) 415-5877, or by
e-mail to [email protected]. Practicable alternative formats are set forth
in 10 CFR 73.4. 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.
The NRC will review submitted fingerprint cards for completeness.
Any Form FD-258 fingerprint record containing omissions or evident
errors will be returned to the Licensee for corrections. The fee for
processing fingerprint checks includes one re-submission if the initial
submission is returned by the FBI because the fingerprint impressions
cannot be classified. The one free re-submission must have the FBI
Transaction Control Number reflected on the re-submission. If
additional submissions are necessary, they will be treated as initial
submittals and will require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application.
Licensees shall submit payment with the application for processing
fingerprints by corporate check, certified check, cashier's check,
money order, or electronic payment, made payable to ``U.S. NRC.'' [For
guidance on making electronic payments, contact the Facilities Security
Branch, Division of Facilities and Security, at (301) 415-7739].
Combined payment for multiple applications is acceptable. The
application fee (currently $27) is the sum of the user fee charged by
the FBI for each fingerprint card or other fingerprint record submitted
by the NRC on behalf of a Licensee, and an NRC processing fee, which
covers administrative costs associated with NRC handling of Licensee
fingerprint submissions. The Commission will directly notify Licensees
who are subject to this regulation of any fee changes.
The Commission will forward to the submitting Licensee all data
received from the FBI as a result of the Licensee's application(s) for
criminal history records checks, including the FBI fingerprint record.
Right to Correct and Complete Information
Prior to any final adverse determination, the Licensee shall make
available to the individual the contents of any criminal records
obtained from the FBI for the purpose of assuring correct and complete
information. Written confirmation by the individual of receipt of this
notification must be maintained by the Licensee for a period of one (1)
year from the date of the notification.
If, after reviewing the record, an individual believes that it is
incorrect or incomplete in any respect and wishes to change, correct,
or update the alleged deficiency, or to explain any matter in the
record, the individual may initiate challenge procedures. These
procedures include either direct application by the individual
challenging the record to the agency (i.e., law enforcement agency)
that contributed the questioned information, or direct challenge as to
the accuracy or completeness of any entry on the criminal history
record to the Assistant Director, Federal Bureau of Investigation
Identification Division, Washington, DC 20537-9700 (as set forth in 28
CFR 16.30 through 16.34). 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.
The Licensee must provide at least ten (10) days for an individual to
initiate an action challenging the results of an FBI criminal history
records check after the record is made available for his/her review.
The Licensee may make a final SGI access determination based upon the
criminal history record only upon receipt of the FBI's ultimate
confirmation or correction of the record. Upon a final adverse
determination on access to SGI, the Licensee shall provide the
individual its documented basis for denial. Access to SGI shall not be
granted to an individual during the review process.
Protection of Information
1. Each Licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a system
of files and procedures for protecting the record and the personal
information from unauthorized disclosure.
2. The Licensee may not disclose the record or personal information
collected and maintained to persons other than the subject individual,
his/her representative, or to those who have a need to access the
information in performing assigned duties in the process of determining
access to Safeguards Information. No individual authorized to have
access to the information may re-disseminate the information to any
other individual who does not have a need-to-know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another Licensee if
the Licensee holding the criminal history check record receives the
individual's written request to re-disseminate the information
contained in his/her file, and the gaining Licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics for
identification purposes.
4. The Licensee shall make criminal history records, obtained under
this section, available for examination by an authorized representative
of the NRC to determine compliance with the regulations and laws.
5. The Licensee shall retain all fingerprint and criminal history
records received from the FBI, or a copy if the individual's file has
been transferred, for three (3) years after termination of employment
or determination of access to SGI (whether access was approved or
denied). After the required three (3) year period, these documents
shall be destroyed by a method that will prevent reconstruction of the
information in whole or in part.
[FR Doc. E6-16558 Filed 10-5-06; 8:45 am]
BILLING CODE 7590-01-P