[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