[Federal Register Volume 71, Number 204 (Monday, October 23, 2006)]
[Notices]
[Pages 62130-62136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17726]


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NUCLEAR REGULATORY COMMISSION

[EA-06-224]


In the Matter of USEC Inc. (American Centrifuge Plant) and All 
Other Persons Who Seek or Obtain Access to Safeguards Information 
Described Herein; Order Imposing Requirements for the Protection of and 
Access to Safeguards Information (Effective Immediately)

I

    USEC Inc. (USEC or the Applicant) applied for a license, to be 
issued in accordance with the Atomic Energy Act (AEA) of 1954, by the 
U.S. Nuclear Regulatory Commission (NRC or Commission) authorizing it 
to construct and operate a uranium enrichment facility, known as the 
American Centrifuge Plant, in Piketon, Ohio. NRC plans to provide USEC, 
for its information, copies of Orders issued to Category III facilities 
on interim measures to enhance physical security at those facilities. 
Those Orders will contain Safeguards Information.\1\ In addition, in 
the future, the Commission may issue the Applicant additional Orders 
that require compliance with specific additional security measures to 
enhance security at the facility. These Orders are also expected to 
contain Safeguards Information, which cannot be released to the public 
and must be protected from unauthorized disclosure. Therefore, the 
Commission is imposing the requirements, as set forth in Attachments A, 
B, and C of this Order, so that the Applicant can receive these 
documents. This Order also imposes requirements for the protection of 
Safeguards Information in the hands of any person,\2\ whether or not a 
Applicant of the Commission, who produces, receives, or acquires 
Safeguards Information.
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    \1\ 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.
    \2\ 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 
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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    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. The NRC's 
implementation of this requirement cannot await the completion of the 
Safeguards Information rulemaking, which is underway, because the EPAct 
fingerprinting and criminal history check requirements for access to 
Safeguards Information 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 many Applicant employees are excepted from 
the fingerprinting requirement by the ``fingerprinting relief'' rule. 
Individuals relieved from the fingerprinting and criminal history 
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; representatives of the International Atomic Energy Agency 
or certain foreign government organizations. In addition, individuals 
who have a favorably-decided U.S. Government criminal history check 
within the last five (5) years, and 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, as set forth by this 
Order, for access to Safeguards Information so that affected Applicant 
can obtain and grant access to Safeguards Information. This Order also 
imposes requirements for access to Safeguards Information by any 
person, from any person, whether or not a Licensee, Applicant, or 
Certificate Holder of the Commission or Agreement States.
    Subsequent to the terrorist events of September 11, 2001, the NRC 
issued Orders requiring certain entities to implement Additional 
Security Measures (ASM) or Compensatory Measures (CM) for certain 
radioactive materials. The requirements imposed by these Orders, and 
certain measures

[[Page 62131]]

licensees have developed to comply with the Orders, were designated by 
the NRC as Safeguards Information. For some materials licensees, the 
storage and handling requirements for the Safeguards Information have 
been modified from the existing 10 CFR Part 73 Safeguards Information 
requirements for reactors and fuel cycle facilities that require a 
higher level of protection; such Safeguards Information is designated 
as Safeguards Information--Modified Handling (SGI-M). However, the 
information subject to the SGI-M handling and protection requirements 
is Safeguards Information, and licensees, applicants, and other persons 
who seek or obtain access to such Safeguards Information are subject to 
this Order.

II

    The Commission has broad statutory authority to protect Safeguards 
Information and prohibit its unauthorized disclosure. Section 147 of 
the AEA, as amended, grants the Commission explicit authority to ``* * 
* issue such orders, as necessary to prohibit the unauthorized 
disclosure of safeguards information. * * *'' 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 Safeguards Information. In addition, no 
person may have access to Safeguards Information unless the person has 
an established need-to-know and satisfies the trustworthy and 
reliability requirements of those Orders.
    Licensees, applicants, and all persons who produce, receive, or 
acquire Safeguards Information must ensure proper handling and 
protection of Safeguards Information, to avoid unauthorized disclosure, 
in accordance with the specific requirements for the protection of 
Safeguards Information contained in Attachments A, B, and C. The 
Commission hereby provides notice that it intends to treat violations 
of the requirements contained in Attachments A, B, and C, applicable to 
the handling and unauthorized disclosure of Safeguards Information, as 
serious breaches of adequate protection of the public health and safety 
and the common defense and security of the United States. Access to 
Safeguards Information is limited to those persons who have established 
a need-to-know the information, and are considered to be trustworthy 
and reliable, and who satisfy the fingerprinting and criminal history 
records check required by the EPAct and this Order. A ``need-to-know'' 
means a determination by a person having responsibility for protecting 
Safeguards Information that a proposed recipient's access to Safeguards 
Information is necessary in the performance of official, contractual, 
or Applicant duties of employment. The Applicant and all other persons 
who obtain Safeguards Information must ensure that they develop, 
maintain, and implement strict policies and procedures for the proper 
handling of Safeguards Information, to prevent unauthorized disclosure, 
in accordance with the requirements in Attachments A, B, and C. The 
Applicant must ensure that all contractors whose employees may have 
access to Safeguards Information either adhere to the Applicant's 
policies and procedures on Safeguards Information or develop, maintain, 
and implement their own acceptable policies and procedures. The 
Applicant remains responsible for the conduct of its contractors. The 
policies and procedures necessary to ensure compliance with applicable 
requirements contained in Attachments A, B, and C must address, at a 
minimum, the following: (1) The general performance requirement that 
each person who produces, receives, or acquires Safeguards Information 
shall ensure that Safeguards Information is protected against 
unauthorized disclosure; (2) protection of Safeguards Information at 
fixed sites, in use and in storage, and while in transit; (3) 
correspondence containing Safeguards Information; (4) access to 
Safeguards Information; (5) preparation, marking, reproduction, and 
destruction of documents; (6) external transmission of documents; (7) 
use of automatic data processing systems; and (8) removal of the 
Safeguards Information category.
    To provide assurance that the Applicant is implementing appropriate 
measures to achieve a consistent level of protection to prohibit the 
unauthorized disclosure of Safeguards Information, the Applicant shall 
implement the requirements for access to Safeguards Information in this 
Order, including the requirements in Attachments A, B, and C 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 53, 62, 63, 81, 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 Part 30, 10 
CFR Part 40, and 10 CFR Part 70, It is hereby ordered, Effective 
Immediately, that the applicant and all other persons who produce, 
receive, or acquire the additional security measures identified above 
(whether draft or final), or who seek or obtain access to Safeguards 
Information, shall comply with the requirements set forth in this 
order, including the requirements in Attachments A, B, and C.
    A. 1. No person may have access to Safeguards Information unless 
that person has a need-to-know the Safeguards Information, 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 Safeguards Information. 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 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 
Applicant's NRC-approved reviewing official.
    2. No person may have access to any Safeguards Information 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 Safeguards Information.
    B. No person may provide Safeguards Information to any other person 
except in accordance with condition III.A above. Prior to providing 
Safeguards Information to any person, a copy of this Order shall be 
provided to that person.
    C. The Applicant shall comply with the following requirements:
    1. The Applicant shall, within twenty (20) days of the date of this 
Order, establish and maintain a fingerprinting program that meets the 
requirements of Attachment C to this Order.
    2. The Applicant shall, within twenty (20) days of the date of this 
Order, submit the fingerprints of one (1) individual who needs access 
to Safeguards Information and who the Applicant nominates as the 
``reviewing official'' for determining access to Safeguards Information 
by other individuals. The NRC will determine whether this individual 
(or any subsequent reviewing official) may have access to Safeguards 
Information and, therefore, will be permitted to serve as

[[Page 62132]]

the Applicant's reviewing official.\3\ The Applicant may, at the same 
time or later, submit the fingerprints of other individuals to whom the 
Applicant seeks to grant access to Safeguards Information. Fingerprints 
shall be submitted and reviewed in accordance with the procedures 
described in Attachment C of this Order.
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    \3\ The NRC's determination of this individual's access to 
Safeguards Information 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 Applicant 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 the Order, including 
Attachments A, B, and C, or (2) if compliance with any of the 
requirements is unnecessary in its specific circumstances. The 
notification shall provide the Applicant's justification for seeking 
relief from or variation of any specific requirement.
    Applicant responses to C.1., C.2., and C.3. above shall be 
submitted to the Director, Office of Nuclear Material Safety and 
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555. 
In addition, Applicant responses shall be marked as ``Security-Related 
Information--Withhold Under 10 CFR 2.390.'' The Director, Office of 
Nuclear Material Safety and Safeguards, may, in writing, relax or 
rescind any of the above conditions, on demonstration of good cause by 
the Applicant.

IV

    In accordance with 10 CFR 2.202, the Applicant 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 Material 
Safety and Safeguards, 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 
Applicant 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 Material Safety and Safeguards, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555; to the Assistant General 
Counsel for Materials Litigation and Enforcement, at the same address; 
and to the Applicant, if the answer or hearing request is by a person 
other than the Applicant. 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 Applicant requests a hearing, that person shall set forth with 
particularity the manner in which their 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 Applicant 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 Applicant 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 grounds 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 specified in Section III 
above 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 specified 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 4th day of October 2006.
    For The Nuclear Regulatory Commission.

Jack R. Strosnider,
Director, Office of Nuclear Material Safety and Safeguards.

Attachment A--Modified Handling Requirements for the Protection of 
Certain Safeguards Information (SGI-M)

General Requirement

    Information and material that the U.S. Nuclear Regulatory 
Commission (NRC) determines are safeguards information must be 
protected from unauthorized disclosure. In order to distinguish 
information needing modified protection requirements from the 
safeguards information for reactors and fuel cycle facilities that 
require a higher level of protection, the term ``Safeguards 
Information--Modified Handling'' (SGI-M) is being used as the 
distinguishing marking for certain materials licensees. Each person who 
produces, receives, or acquires SGI-M shall ensure that it is protected 
against unauthorized disclosure. To meet this requirement, applicants, 
licensees, and persons shall establish and maintain an information 
protection system that includes the measures specified below. 
Information protection procedures employed by State and local police 
forces are deemed to meet these requirements.

Persons Subject to These Requirements

    Any person, whether or not an applicant or licensee of the NRC, who 
produces, receives, or acquires SGI-M is subject to the requirements 
(and sanctions) of this document. Firms and their employees that supply 
services or equipment to materials licensees fall under this 
requirement if they possess SGI-M. An applicant or licensee must inform 
contractors and suppliers of the existence of these requirements and 
the need for proper protection. (See more under Conditions for Access) 
State or local police units who have access to SGI-M are also subject 
to these requirements. However, these organizations are deemed to have 
adequate information protection systems. The conditions for transfer of 
information to a third party, i.e., need-to-know, would still apply to 
the police organization as would sanctions for unlawful disclosure. 
Again, it would be prudent for applicants and licensees who have 
arrangements with local police to advise them of the existence of SGI-M 
requirements.

Criminal and Civil Sanctions

    The Atomic Energy Act of 1954, as amended, explicitly provides that 
any person, ``whether or not a licensee of the

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Commission, who violates any regulations adopted under this section 
shall be subject to the civil monetary penalties of section 234 of this 
Act.'' Furthermore, willful violation of any regulation or order 
governing safeguards information is a felony subject to criminal 
penalties in the form of fines or imprisonment, or both. See sections 
147b. and 223 of the Act.

Conditions for Access

    Access to SGI-M beyond the initial recipients of the order will be 
governed by the background check requirements imposed by the order. 
Access to SGI-M by applicant or licensee employees, agents, or 
contractors must include both an appropriate need-to-know determination 
by the applicant or licensee, as well as a determination concerning the 
trustworthiness of individuals having access to the information. 
Employees of an organization affiliated with the applicant's or 
licensee's company, e.g., a parent company, may be considered as 
employees of the applicant or licensee for access purposes.

Need-To-Know

    Need-to-know is defined as a determination by a person having 
responsibility for protecting SGI-M that a proposed recipient's access 
to SGI-M is necessary in the performance of official, contractual, or 
applicant or licensee duties of employment. The recipient must be made 
aware that the information is SGI-M and those having access to it are 
subject to these requirements as well as criminal and civil sanctions 
for mishandling the information.

Occupational Groups

    Dissemination of SGI-M is limited to individuals who have an 
established need-to-know and who are members of certain occupational 
groups. These occupational groups are:
    1. An employee, agent, or contractor of an applicant, a licensee, 
the Commission, or the United States Government;
    2. A member of a duly authorized committee of the Congress;
    3. The Governor of a State or his designated representative;
    4. A representative of the International Atomic Energy Agency 
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards 
Agreement who has been certified by the NRC;
    5. A member of a state or local law enforcement authority that is 
responsible for responding to requests for assistance during safeguards 
emergencies;
    6. A person to whom disclosure is ordered pursuant to Section 
2.744(e) of Part 2 of part 10 of the Code of Federal Regulations; or
    7. State Radiation Control Program Directors (and State Homeland 
Security Directors) or their designees.
    In a generic sense, the individuals described above in (A) through 
(G) are considered to be trustworthy by virtue of their employment 
status. For non-governmental individuals in group (A) above, a 
determination of reliability and trustworthiness is required. 
Discretion must be exercised in granting access to the individuals in 
group (A). If there is any indication that the recipient would be 
unwilling or unable to provide proper protection for the SGI-M, they 
are not authorized to receive SGI-M.

Information Considered for Safeguards Information Designation

    Information deemed SGI-M is information the disclosure of which 
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 theft, diversion, or 
sabotage of materials or facilities subject to NRC jurisdiction.
    SGI-M identifies safeguards information which is subject to these 
requirements. These requirements are necessary in order to protect 
quantities of nuclear material significant to the health and safety of 
the public or common defense and security.
    The overall measure for consideration of SGI-M is the usefulness of 
the information (security or otherwise) to an adversary in planning or 
attempting a malevolent act. The specificity of the information 
increases the likelihood that it will be useful to an adversary.

Protection While in Use

    While in use, SGI-M shall be under the control of an authorized 
individual. This requirement is satisfied if the SGI-M is attended by 
an authorized individual even though the information is in fact not 
constantly being used. SGI-M, therefore, within alarm stations, 
continuously manned guard posts or ready rooms need not be locked in 
file drawers or storage containers.
    Under certain conditions the general control exercised over 
security zones or areas would be considered to meet this requirement. 
The primary consideration is limiting access to those who have a need-
to-know. Some examples would be:
    Alarm stations, guard posts and guard ready rooms;
    Engineering or drafting areas if visitors are escorted and 
information is not clearly visible;
    Plant maintenance areas if access is restricted and information is 
not clearly visible;
    Administrative offices (e.g., central records or purchasing) if 
visitors are escorted and information is not clearly visible.

Protection While in Storage

    While unattended, SGI-M shall be stored in a locked file drawer or 
container. Knowledge of lock combinations or access to keys protecting 
SGI-M shall be limited to a minimum number of personnel for operating 
purposes who have a ``need-to-know'' and are otherwise authorized 
access to SGI-M in accordance with these requirements. Access to lock 
combinations or keys shall be strictly controlled so as to prevent 
disclosure to an unauthorized individual.

Transportation of Documents and Other Matter

    Documents containing SGI-M when transmitted outside an authorized 
place of use or storage shall be enclosed in two sealed envelopes or 
wrappers. The inner envelope or wrapper shall contain the name and 
address of the intended recipient, and be marked both sides, top and 
bottom with the words ``Safeguards Information--Modified Handling.'' 
The outer envelope or wrapper must be addressed to the intended 
recipient, must contain the address of the sender, and must not bear 
any markings or indication that the document contains SGI-M.
    SGI-M may be transported by any commercial delivery company that 
provides nationwide overnight service with computer tracking features, 
U.S. first class, registered, express, or certified mail, or by any 
individual authorized access pursuant to these requirements.
    Within a facility, SGI-M may be transmitted using a single opaque 
envelope. It may also be transmitted within a facility without single 
or double wrapping, provided adequate measures are taken to protect the 
material against unauthorized disclosure. Individuals transporting SGI-
M should retain the documents in their personal possession at all times 
or ensure that the information is appropriately wrapped and also 
secured to preclude compromise by an unauthorized individual.

Preparation and Marking of Documents

    While the NRC is the sole authority for determining what specific

[[Page 62134]]

information may be designated as ``SGI-M,'' originators of documents 
are responsible for determining whether those documents contain such 
information. Each document or other matter that contains SGI-M shall be 
marked ``Safeguards Information--Modified Handling'' in a conspicuous 
manner on the top and bottom of the first page to indicate the presence 
of protected information. The first page of the document must also 
contain (i) The name, title, and organization of the individual 
authorized to make a SGI-M determination, and who has determined that 
the document contains SGI-M, (ii) the date the document was originated 
or the determination made, (iii) an indication that the document 
contains SGI-M, and (iv) an indication that unauthorized disclosure 
would be subject to civil and criminal sanctions. Each additional page 
shall be marked in a conspicuous fashion at the top and bottom with 
letters denoting ``Safeguards Information--Modified Handling.''
    In additional to the ``Safeguards Information--Modified Handling'' 
markings at the top and bottom of page, transmittal letters or 
memoranda which do not in themselves contain SGI-M shall be marked to 
indicate that attachments or enclosures contain SGI-M but that the 
transmittal does not (e.g., ``When separated from SGI-M enclosure(s), 
this document is decontrolled'').
    In addition to the information required on the face of the 
document, each item of correspondence that contains SGI-M shall, by 
marking or other means, clearly indicate which portions (e.g., 
paragraphs, pages, or appendices) contain SGI-M and which do not. 
Portion marking is not required for physical security and safeguards 
contingency plans.
    All documents or other matter containing SGI-M in use or storage 
shall be marked in accordance with these requirements. A specific 
exception is provided for documents in the possession of contractors 
and agents of applicants or licensees that were produced more than one 
year prior to the effective date of the order. Such documents need not 
be marked unless they are removed from file drawers or containers. The 
same exception applies to old documents stored away from the facility 
in central files or corporation headquarters.
    Since information protection procedures employed by State and local 
police forces are deemed to meet NRC requirements, documents in the 
possession of these agencies need not be marked as set forth in this 
document.

Removal from SGI-M Category

    Documents containing SGI-M shall be removed from the SGI-M category 
(decontrolled) only after the NRC determines that the information no 
longer meets the criteria of SGI-M. Applicants and licensees have the 
authority to make determinations that specific documents which they 
created no longer contain SGI-M information and may be decontrolled. 
Consideration must be exercised to ensure that any document 
decontrolled shall not disclose SGI-M in some other form or be combined 
with other unprotected information to disclose SGI-M.
    The authority to determine that a document may be decontrolled may 
be exercised only by, or with the permission of, the individual (or 
office) who made the original determination. The document shall 
indicate the name and organization of the individual removing the 
document from the SGI-M category and the date of the removal. Other 
persons who have the document in their possession should be notified of 
the decontrolling of the document.

Reproduction of Matter Containing SGI-M

    SGI-M may be reproduced to the minimum extent necessary consistent 
with need without permission of the originator. Newer digital copiers 
which scan and retain images of documents represent a potential 
security concern. If the copier is retaining any information in memory, 
the copier cannot be connected to a network. It should also be placed 
in a location that is cleared and controlled for the authorized 
processing of SGI-M information. Different copiers have different 
capabilities, including some which come with features that allow the 
memory to be erased. Each copier would have to be examined from a 
physical security perspective.

Use of Automatic Data Processing (ADP) Systems

    SGI-M may be processed or produced on an ADP system provided that 
the system is assigned to the applicant's, licensee's, or contractor's 
facility and requires the use of an entry code/password for access to 
stored information. Applicants or licensees must process this 
information in a computing environment that has adequate computer 
security controls in place to prevent unauthorized access to the 
information. An ADP system is defined here as a data processing system 
having the capability of long term storage of information. Word 
processors such as typewriters are not subject to the requirements as 
long as they do not transmit information off-site. (Note: if SGI-M is 
produced on a typewriter, the ribbon must be removed and stored in the 
same manner as other SGI-M information or media.) The basic objective 
of these restrictions is to prevent access and retrieval of stored SGI-
M by unauthorized individuals, particularly from remote terminals. 
Specific files containing SGI-M will be password protected to preclude 
access by an unauthorized individual. SGI-M files may be transmitted 
over a network if the file is encrypted. In such cases, the applicant 
or licensee will select a commercially available encryption system that 
National Institute of Standards and Technology (NIST) has validated as 
conforming to Federal Information Processing Standards (FIPS). SGI-M 
files shall be properly labeled as ``Safeguards Information--Modified 
Handling'' and saved to removable media and stored in a locked file 
drawer or cabinet. The NIST maintains a listing of all validated 
encryption systems at http://csrc.nist.gov/cryptval/140-1/1401val.htm.

Telecommunications

    SGI-M may not be transmitted by unprotected telecommunications 
circuits except under emergency or extraordinary conditions. For the 
purpose of this requirement, emergency or extraordinary conditions are 
defined as any circumstances that require immediate communications in 
order to report, summon assistance for, or respond to a security event 
(or an event that has potential security significance).
    This restriction applies to telephone, telegraph, teletype, 
facsimile circuits, and to radio. Routine telephone or radio 
transmission between site security personnel, or between the site and 
local police, should be limited to message formats or codes that do not 
disclose facility security features or response procedures. Similarly, 
call-ins during transport should not disclose information useful to a 
potential adversary. Infrequent or non-repetitive telephone 
conversations regarding a physical security plan or program are 
permitted provided that the discussion is general in nature.
    Individuals should use care when discussing SGI-M at meetings or in 
the presence of others to ensure that the conversation is not overheard 
by persons not authorized access. Transcripts, tapes or minutes of 
meetings or hearings that contain SGI-M shall be marked and protected 
in accordance with these requirements.

[[Page 62135]]

Destruction

    Documents containing SGI-M must be destroyed when no longer needed. 
They may be destroyed by tearing into small pieces, burning, shredding 
or any other method that precludes reconstruction by means available to 
the public at large. Piece sizes one half inch or smaller composed of 
several pages or documents and thoroughly mixed are considered 
completely destroyed.

Attachment B--Trustworthiness and Reliability Requirements for 
Individuals Handling Safeguards Information

    Applicants or licensees shall document the basis for concluding 
that there is reasonable assurance that individuals granted access to 
safeguards information are trustworthy and reliable, and do not 
constitute an unreasonable risk for malevolent use of the regulated 
material.
    The trustworthiness, reliability, and verification of an 
individual's true identity shall be determined based on a background 
investigation. The background investigation shall address at least the 
past three (3) years, and, as a minimum, include a Federal Bureau of 
Investigation fingerprinting and criminal history check, verification 
of employment history, education, employment eligibility, credit check, 
and personal references. If an individual's employment has been less 
than the required three (3) year period, educational references may be 
used in lieu of employment history.
    The applicant's or licensee's background investigation requirements 
may be satisfied for an individual that has an active Federal security 
clearance.

Attachment C--Requirements for Fingerprinting and Criminal History 
Checks of Individuals When Applicant's or Licensee's Reviewing Official 
is Determining Access to Safeguards Information

General Requirements

    Applicants and licensees shall comply with the requirements of this 
attachment.
    1. a. Each applicant or licensee subject to the provisions of this 
attachment shall fingerprint each individual who is seeking or 
permitted access to Safeguards Information (SGI). The Applicant or 
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.
    b. The Applicant or 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.
    c. Fingerprints need not be taken if an employed individual (e.g., 
an applicant or 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 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 check 
must be provided. The Applicant or 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 
Applicant's or Licensee's activities.
    d. All fingerprints obtained by the Applicant or Licensee pursuant 
to this Order must be submitted to the Commission for transmission to 
the FBI.
    e. The Applicant or Licensee shall review the information received 
from the FBI and consider it, in conjunction with the trustworthy and 
reliability requirements, in making a determination whether to grant 
access to Safeguards Information to individuals who have a need-to-know 
the SGI.
    f. The Applicant or 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 Safeguards 
Information.
    g. The Applicant or Licensee shall document the basis for its 
determination whether to grant access to SGI.
    2. The Applicant or 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 
Safeguards Information based on a previously-obtained or new criminal 
history check and, therefore, will be permitted to serve as the 
Applicant's or Licensee's reviewing official.

Prohibitions

    The Applicant or Licensee shall not base a final determination to 
deny an individual access to Safeguards Information 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.
    The Applicant or Licensee shall not use information received from a 
criminal history 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 
Applicant or Licensee use the information in any way which would 
discriminate among individuals on the basis of race, religion, national 
origin, sex, or age.

Procedures for Processing Fingerprint Checks

    For the purpose of complying with this Order, the Applicant or 
Licensee 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 Applicant or 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 Applicant 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. 
Applicants or 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

[[Page 62136]]

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 the 
Applicant or Licensee, and an NRC processing fee, which covers 
administrative costs associated with NRC handling of Applicant or 
Licensee fingerprint submissions. The Commission will directly notify 
applicants or licensees who are subject to this regulation of any fee 
changes.
    The Commission will forward to the submitting Applicant or Licensee 
all data received from the FBI as a result of the Applicant's or 
Licensee's application(s) for criminal history checks, including the 
FBI fingerprint record.

Right To Correct and Complete Information

    Prior to any final adverse determination, the Applicant or 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 Applicant or 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 Applicant or 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 Applicant or 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 Applicant or 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 Applicant or 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 Applicant or 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 Applicant 
or Licensee if the Applicant or Licensee holding the criminal history 
check record receives the individuals' written request to re-
disseminate the information contained in his/her file, and the gaining 
Applicant or 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 Applicant or 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 Applicant or 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 denial of access to SGI. 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. E6-17726 Filed 10-20-06; 8:45 am]
BILLING CODE 7590-01-P