[Federal Register Volume 72, Number 1 (Wednesday, January 3, 2007)]
[Notices]
[Pages 159-162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22453]
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NUCLEAR REGULATORY COMMISSION
[EA-06-264]
In the Matter of Louisiana Energy Services, L.P. National
Enrichment Facility and All Other persons Who Seek or Obtain Access to
Safeguards Information Described Herein; Order Imposing Fingerprinting
and Criminal History Check Requirements for Access to Safeguards
Information (Effective Immediately)
I
Louisiana Energy Services, L.P. (LES) holds a license, issued in
accordance with the Atomic Energy Act (AEA) of 1954, by the U.S.
Nuclear Regulatory Commission (NRC), authorizing it to construct and
operate a uranium enrichment facility in Lea County, New Mexico. On
August 8, 2005, the Energy Policy Act of 2005 (EPAct) was enacted.
Section 652 of the EPAct amended Section 149 of the AEA to require
fingerprinting and a Federal Bureau of Investigation (FBI)
identification and criminal history records check of any person who is
to be permitted to have access to Safeguards Information (SGI).\1\ The
NRC's implementation of this requirement cannot await the completion of
the SGI rulemaking, which is underway, because the EPAct fingerprinting
and criminal history check requirements for access to SGI were
immediately effective on enactment of the EPAct. 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 Federal Register 33989 (June 13, 2006)].
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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.
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Individuals relieved from 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; and 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 for access to
SGI, as set forth by this Order, so that affected licensees can obtain
and grant access to SGI. This Order also imposes requirements for
access to SGI by any person,\2\ from any person, whether or not they
are a licensee, applicant, or certificate holder of the Commission or
an Agreement States.
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\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 of
Energy specified in Section 202 of the Energy Reorganization Act of
1974 (88 Stat. 1244), any State or any political subdivision of, or
any political entity within a State, any foreign government or
nation or any political subdivision of any such government or
nation, or other entity; and (2) any legal successor,
representative, agent, or agency of the foregoing.
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Subsequent to the terrorist events of September 11, 2001, the NRC
issued Orders requiring certain entities to implement Additional
Security Measures (ASMs) or Interim Compensatory Measures (ICMs) for
certain radioactive materials. The requirements imposed by these
Orders, and certain measures that licensees have developed to comply
with the Orders, were designated by the NRC as SGI. For some materials
licensees, the storage and handling requirements for the SGI have been
modified from the existing 10 CFR Part 73 SGI requirements for reactors
and fuel cycle facilities that require a higher level of protection;
such SGI is designated as Safeguards Information-Modified Handling
(SGI-M). However, the information subject to the SGI-M handling and
protection requirements is SGI, and licensees and other persons who
seek or obtain access to such SGI are subject to this Order.
II
The Commission has broad statutory authority to protect and
prohibit the unauthorized disclosure of SGI. Section 147 of the AEA
grants the Commission explicit authority to issue such Orders, as
necessary, to prohibit the unauthorized disclosure of SGI. Furthermore,
Section 652 of the EPAct amended Section 149 of the AEA to require
fingerprinting and an FBI identification and a criminal history records
check of each individual who seeks access to SGI. In addition, as
required by existing Orders, which
[[Page 160]]
remain in effect, no person may have access to SGI unless the person
has an established need-to-know, and satisfies the trustworthiness and
reliability requirements of those Orders.
In order to provide assurance that LES is implementing appropriate
measures to comply with the fingerprinting and criminal history check
requirements for access to SGI, LES shall implement the requirements of
this Order. In addition, pursuant to 10 CFR 2.202, I find that in light
of the common defense and security matters identified above, which
warrant the issuance of this Order, the public health, safety and
interest require that this Order be effective immediately.
III
Accordingly, pursuant to Sections 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, 10 CFR Part 70, and 10 CFR Part 73, it is hereby ordered,
effective immediately, that LES and all other persons who seek or
obtain access to safeguards information described herein shall comply
with the requirements set forth in this order.
A. 1. No person may have access to SGI unless that person has a
need-to-know the SGI, has been fingerprinted or has a favorably-decided
FBI identification and criminal history records check, and satisfies
all other applicable requirements for access to SGI. 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 Federal Register 33989 (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 LES's NRC-approved reviewing official.
2. No person may have access to any SGI if the NRC, when making an
SGI access determination for a nominated reviewing official, has
determined, based on fingerprinting and an FBI identification and
criminal history records check, that the person may not have access to
SGI.
B. No person may provide SGI to any other person except in
accordance with Condition III.A. above. Prior to providing SGI to any
person, a copy of this Order shall be provided to that person.
C. LES shall comply with the following requirements:
1. LES shall, within twenty (20) days of the date of this Order,
establish and maintain a fingerprinting program that meets the
requirements of the Attachment to this Order.
2. LES shall, within twenty (20) days of the date of this Order,
submit the fingerprints of one (1) individual who currently has access
to SGI in accordance with the previously-issued NRC Orders, who
continues to need access to SGI, and who LES nominates as the
``reviewing official'' for determining access to SGI by other
individuals. The NRC will determine whether this individual (or any
subsequent reviewing official) may have access to SGI and, therefore,
will be permitted to serve as LES's reviewing official.\3\ LES may, at
the same time or later, submit the fingerprints of other individuals to
whom LES seeks to grant access to SGI. Fingerprints shall be submitted
and reviewed in accordance with the procedures described in the
Attachment to this Order.
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\3\ The NRC's determination of this individual's access to SGI
in accordance with the process described in Enclosure 3 to the
transmittal letter of this Order is an administrative determination
that is outside the scope of this Order.
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3. LES may allow any individual who currently has access to SGI in
accordance with the previously-issued NRC Orders to continue to have
access to previously-designated SGI without being fingerprinted,
pending a decision by the NRC-approved reviewing official (based on
fingerprinting, an FBI criminal history records check and a
trustworthiness and reliability determination) that the individual may
continue to have access to SGI. LES shall make determinations on
continued access to SGI within ninety (90) days of the date of this
Order, in part on the results of the fingerprinting and criminal
history check, for those individuals who were previously granted access
to SGI before the issuance of this Order.
4. LES 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 the
Attachment, or (2) if compliance with any of the requirements is
unnecessary in its specific circumstances. The notification shall
provide LES's justification for seeking relief from or variation of any
specific requirement.
Licensee responses to C.1., C.2., C.3., and C.4. above shall be
submitted to the Director, Office of Nuclear 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 LES.
IV
In accordance with 10 CFR 2.202, LES must, and any other person
adversely affected by this Order may, submit an answer to this Order,
and may request a hearing regarding 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
an 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 by which LES or
other entities adversely affected rely, 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 shall also 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 LES if the answer or hearing request is by a person other than
LES. 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 via 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 via e-
mail to [email protected]. If an entity other than LES requests a
hearing, that entity 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 LES or a person whose interest is
adversely affected, the Commission will issue an
[[Page 161]]
Order designating the time and place of any hearing. If a hearing is
held, the issue to be considered at a such hearing shall be whether
this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), LES may, in addition to
demanding a hearing, at the time the answer is filed, or sooner, move
that the presiding officer 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 as specified above in Section III,
shall be final twenty (20) days from the date of this Order without
further order or proceedings.
If an extension of time for requesting a hearing has been approved,
the provisions as specified above in Section III shall be final when
the extension expires if a hearing request has not been received. An
answer or a request for hearing shall not stay the immediate
effectiveness of this order.
Dated this 20th day of December 2006.
For the Nuclear Regulatory Commission.
Jack R. Strosnider,
Director, Office of Nuclear Material Safety and Safeguards.
Attachment: 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.
A. 1. Each licensee subject to the provisions of this attachment
shall fingerprint each individual who is seeking or permitted access to
Safeguards Information (SGI). The licensee shall review and use the
information received from the Federal Bureau of Investigation (FBI) and
ensure that the provisions contained in the subject Order and this
attachment are satisfied.
2. The licensee shall notify each affected individual that the
fingerprints will be used to secure a review of his/her criminal
history record and inform the individual of the procedures for revising
the record or including an explanation in the record, as specified in
the ``Right to Correct and Complete Information'' section of this
attachment.
3. Fingerprints need not be taken if an employed individual (e.g.,
a licensee employee, contractor, manufacturer, or supplier) is relieved
from the fingerprinting requirement by 10 CFR 73.59, has had a
favorably-decided U.S. Government criminal history records check within
the last five (5) years, or has an active federal security clearance.
Written confirmation from the Agency/employer which granted the federal
security clearance or reviewed the criminal history records check must
be provided. The licensee must retain this documentation for a period
of three (3) years from the date the individual no longer requires
access to SGI associated with the licensee's activities.
4. All fingerprints obtained by the licensee pursuant to this Order
must be submitted to the Commission for transmission to the FBI.
5. The licensee shall review the information received from the FBI
and consider it, in conjunction with the trustworthy and reliability
requirements included in Attachment 3 to this Order, in making a
determination whether to grant access to SGI to individuals who have a
need-to-know the SGI.
6. The licensee shall use any information obtained as part of a
criminal history records check solely for the purpose of determining an
individual's suitability for access to SGI.
7. The licensee shall document the basis for its determination
whether to grant access to SGI.
B. The licensee shall notify the NRC of any desired change in
reviewing officials. The NRC will determine whether the individual
nominated as the new reviewing official may have access to SGI based on
a previously-obtained or new criminal history check and, therefore,
will be permitted to serve as the licensee's reviewing official.
Prohibitions
A licensee shall not base a final determination to deny an
individual access to SGI solely on the basis of information received
from the FBI involving: an arrest more than one (1) year old for which
there is no information of the disposition of the case, or an arrest
that resulted in dismissal of the charge or an acquittal.
A licensee shall not use information received from a criminal
history 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 SGI, 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) 415-7404].
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
[[Page 162]]
directly notify licensees who are subject to this regulation of any fee
changes.
The Commission will forward to the submitting licensee all data
received from the FBI as a result of the licensee's application(s) for
criminal history records checks, including the FBI fingerprint record.
Right to Correct and Complete Information
Prior to any final adverse determination, the licensee shall make
available to the individual the contents of any criminal records
obtained from the FBI for the purpose of assuring correct and complete
information. Written confirmation by the individual of receipt of this
notification must be maintained by the licensee for a period of one (1)
year from the date of the notification.
If, after reviewing the record, an individual believes that it is
incorrect or incomplete in any respect and wishes to change, correct,
or update the alleged deficiency, or to explain any matter in the
record, the individual may initiate challenge procedures. These
procedures include either direct application by the individual
challenging the record to the agency (i.e., law enforcement agency)
that contributed the questioned information, or direct challenge as to
the accuracy or completeness of any entry on the criminal history
record to the Assistant Director, Federal Bureau of Investigation
Identification Division, Washington, DC 20537-9700 (as set forth in 28
CFR 16.30 through 16.34). In the latter case, the FBI forwards the
challenge to the agency that submitted the data and requests that
agency to verify or correct the challenged entry. Upon receipt of an
official communication directly from the agency that contributed the
original information, the FBI Identification Division makes any changes
necessary in accordance with the information supplied by that agency.
The licensee must provide at least ten (10) days for an individual to
initiate an action challenging the results of an FBI criminal history
records check after the record is made available for his/her review.
The licensee may make a final SGI access determination based upon the
criminal history record only upon receipt of the FBI's ultimate
confirmation or correction of the record. Upon a final adverse
determination on access to SGI, the licensee shall provide the
individual its documented basis for denial. Access to SGI shall not be
granted to an individual during the review process.
Protection of Information
1. Each licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a system
of files and procedures for protecting the record and the personal
information from unauthorized disclosure.
2. The licensee may not disclose the record or personal information
collected and maintained to persons other than the subject individual,
his/her representative, or to those who have a need to access the
information in performing assigned duties in the process of determining
access to Safeguards Information. No individual authorized to have
access to the information may re-disseminate the information to any
other individual who does not have a need-to-know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another licensee if
the licensee holding the criminal history record check receives the
individual's written request to re-disseminate the information
contained in his/her file, and the current licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics for
identification purposes.
4. The licensee shall make criminal history records, obtained under
this section, available for examination by an authorized representative
of the NRC to determine compliance with the regulations and laws.
5. The licensee shall retain all fingerprint and criminal history
records received from the FBI, or a copy if the individual's file has
been transferred, for three (3) years after termination of employment
or determination of access to SGI (whether access was approved or
denied). After the required three (3) year period, these documents
shall be destroyed by a method that will prevent reconstruction of the
information in whole or in part.
[FR Doc. E6-22453 Filed 12-29-06; 8:45 am]
BILLING CODE 7590-01-P