[Federal Register Volume 71, Number 205 (Tuesday, October 24, 2006)]
[Notices]
[Pages 62318-62323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17752]
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NUCLEAR REGULATORY COMMISSION
[EA-06-223]
In the Matter of USEC Inc. (Lead Cascade Facility) 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 Licensee) holds a license, 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 test and demonstration
facility in Piketon, Ohio. On July 15, 2003, NRC provided USEC, for its
information, copies of Orders issued to Category III facilities on
interim measures to enhance physical security at those facilities.
Those Orders contained Safeguards Information.\1\ In addition, in the
future, the Commission may issue the Licensee 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 Licensee 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
Licensee 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 Licensee 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 licensees
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 licensees have developed to comply
[[Page 62319]]
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 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 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 Licensee duties of employment. The Licensee 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
Licensee must ensure that all contractors whose employees may have
access to Safeguards Information either adhere to the Licensee's
policies and procedures on Safeguards Information or develop, maintain,
and implement their own acceptable policies and procedures. The
Licensee 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 Licensee is implementing appropriate
measures to achieve a consistent level of protection to prohibit the
unauthorized disclosure of Safeguards Information, the Licensee 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 Sec. 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 LICENSEE 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
Licensee'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 Licensee 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 C 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 needs access
to Safeguards Information and who the Licensee 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 62320]]
the Licensee's reviewing official.\3\ The Licensee may, at the same
time or later, submit the fingerprints of other individuals to whom the
Licensee 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 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 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 Licensee's justification for seeking
relief from or variation of any specific requirement.
Licensee 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,
Licensee 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 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 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
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 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 Licensee, if the answer or hearing request is by a person
other than the Licensee. 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 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 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 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,
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 a 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. A 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
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 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
[[Page 62321]]
the background check requirements imposed by the order. Access to
SGI-M by licensee employees, agents, or contractors must include
both an appropriate need-to-know determination by the licensee, as
well as a determination concerning the trustworthiness of
individuals having access to the information. Employees of an
organization affiliated with the licensee's company, e.g., a parent
company, may be considered as employees of the 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 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 nation-wide 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
opague 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 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 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
[[Page 62322]]
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. 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 licensee's or contractor's
facility and requires the use of an entry code/password for access
to stored information. 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 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.
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
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 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 Licensee's Reviewing Official Is Determining
Access to Safeguards Information
General Requirements
Licensees shall comply with the requirements of this attachment.
1. a. 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.
b. 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.
c. 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 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 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.
d. All fingerprints obtained by the Licensee pursuant to this
Order must be submitted to the Commission for transmission to the
FBI.
e. The 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 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 Licensee shall document the basis for its determination
whether to grant access to SGI.
2. The Licensee shall notify the NRC of any desired change in
reviewing officials. The NRC will determine whether the individual
[[Page 62323]]
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 Licensee's reviewing official.
Prohibitions
A 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.
A 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 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, 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 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 individuals' 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 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. E6-17752 Filed 10-23-06; 8:45 am]
BILLING CODE 7590-01-P