[Federal Register Volume 72, Number 45 (Thursday, March 8, 2007)]
[Notices]
[Pages 10564-10567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4158]
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NUCLEAR REGULATORY COMMISSION
[Docket No.: 70-1257; License No. SNM-1227; EA-06-231]
In the Matter of Areva Np, Inc. Richland, WA and All Others 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
AREVA NP, Inc., Richland, (AREVA NP--Richland) is the holder of
Special Nuclear Material License No. SNM-1227 issued by the U.S.
Nuclear Regulatory (NRC) pursuant to 10 CFR Part 70. AREVA NP--Richland
is authorized, by its license, to receive, possess, and transfer
byproduct, source material, and special nuclear material in accordance
with the Atomic Energy Act (AEA) of 1954, as amended, and 10 CFR Part
70.
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. 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 Federal Register 33989 (June 13, 2006)],
it is unlikely that licensee employees are excepted from the
fingerprinting requirement by the ``fingerprinting relief'' rule.
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
[[Page 10565]]
Atomic Energy Agency or certain foreign government organizations. In
addition, individuals who have had 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 State.
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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 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 or Interim Compensatory Measures 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 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.
To provide assurance that AREVA NP--Richland is implementing
appropriate measures to comply with the fingerprinting and criminal
history check requirements for access to SGI, AREVA NP--Richland 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, AREVA NP--Richland 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, 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
had 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 AREVA NP--Richland's NRC-approved reviewing official.
2. No person may have access to any SGI if the NRC, when making an
SGI 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. AREVA NP--Richland shall comply with the following requirements:
1. AREVA NP--Richland 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. AREVA NP--Richland 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 whom AREVA NP--Richland
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 AREVEA NP--Richland's
reviewing official.\3\ AREVA NP--Richland may, at the same time, or
later, submit the fingerprints of other individuals to whom AREVA NP--
Richland 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. AREVA NP--Richland 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. AREVA NP--Richland 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. AREVA NP--Richland shall, in writing, within twenty (20) days of
the
[[Page 10566]]
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 AREVA NP--Richland's justification for seeking relief from, or
variation of, any specific requirement. AREVA NP--Richland 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 AREVA NP--Richland.
IV
In accordance with 10 CFR 2.202, AREVA NP--Richland 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 AREVA NP--Richland, 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 AREVA NP--Richland if the
answer or hearing request is by an entity other than AREVA NP--
Richland. 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 AREVA NP--
Richland requests a hearing, that entity shall set forth with
particularity the manner in which its 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 AREVA NP--Richland 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), AREVA NP--Richland 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 at Rockville, Maryland, this 1st day of March 2007.
For The Nuclear Regulatory Commission.
Jack R. Strosnider,
Director Office of Nuclear Material Safety and Safeguards.
Attachment 1--Requirements for Fingerprinting and Criminal History
Records Checks of Individuals When Licensee's Reviewing Official is
Determining Access to Safeguards Information
General Requirements
Licensees shall comply with the requirements of this attachment.
A. 1. Each licensee subject to the provisions of this attachment
shall fingerprint each individual who is seeking or permitted access
to Safeguards Information (SGI). The licensee shall review and use
the information received from the Federal Bureau of Investigation
(FBI) and ensure that the provisions contained in the subject Order
and this attachment are satisfied.
2. The licensee shall notify each affected individual that the
fingerprints will be used to secure a review of his/her criminal
history record and inform the individual of the procedures for
revising the record or including an explanation in the record, as
specified in the ``Right to Correct and Complete Information''
section of this attachment.
3. Fingerprints need not be taken if an employed individual
(e.g., a licensee employee, contractor, manufacturer, or supplier)
is relieved from the fingerprinting requirement by 10 CFR 73.59, has
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 established by the previous SGI Protection Order, dated
November 5, 2004, when making a determination to grant access to SGI
to individuals who have a need-to-know.
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
[[Page 10567]]
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 to 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 records
submitted by the NRC on behalf of a licensee, and an NRC processing
fee, which covers administrative costs associated with the NRC
handling of licensee fingerprint submissions. The Commission will
directly notify licensees who are subject to this regulation of any
fee changes.
The Commission will forward, to the submitting licensee, all
data received from the FBI as a result of the licensee's
application(s) for criminal history records checks, including the
FBI fingerprint record.
Right to Correct and Complete Information
Prior to any final adverse determination, the licensee shall
make available, to the individual the contents of any criminal
records obtained from the FBI for the purpose of assuring correct
and complete information. Written confirmation by the individual of
receipt of this notification must be maintained by the licensee for
a period of one (1) year from the date of the notification.
If, after reviewing the record, an individual believes that it
is incorrect or incomplete in any respect and wishes to change,
correct, or update the alleged deficiency, or to explain any matter
in the record, the individual may initiate challenge procedures.
These procedures include either direct application by the individual
challenging the record to the agency (i.e., law enforcement agency)
that contributed the questioned information, or direct challenge as
to the accuracy or completeness of any entry on the criminal history
record to the Assistant Director, Federal Bureau of Investigation,
Identification Division, Washington, DC 20537-9700 (as set forth in
28 CFR 16.30 through 16.34). In the latter case, the FBI forwards
the challenge to the agency that submitted the data and requests
that agency to verify or correct the challenged entry. Upon receipt
of an official communication directly from the agency that
contributed the original information, the FBI Identification
Division makes any changes necessary in accordance with the
information supplied by that agency. The licensee must provide at
least ten (10) days for an individual to initiate an action
challenging the results of an FBI criminal history records check
after the record is made available for his/her review. The licensee
may make a final SGI access determination based upon the criminal
history record only upon receipt of the FBI's ultimate confirmation
or correction of the record. Upon a final adverse determination on
access to SGI, the licensee shall provide the individual its
documented basis for denial. Access to SGI shall not be granted to
an individual during the review process.
Protection of Information
1. Each licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a
system of files and procedures for protecting the record and the
personal information from unauthorized disclosure.
2. The licensee may not disclose the record or personal
information collected and maintained to persons other than the
subject individual, his/her representative, or to those who have a
need to access the information in performing assigned duties in the
process of determining access to Safeguards Information. No
individual authorized to have access to the information may re-
disseminate the information to any other individual who does not
have a need-to-know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another licensee
if the licensee holding the criminal history record check receives
the individual's written request to re-disseminate the information
contained in his/her file, and the gaining licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics
for identification purposes.
4. The licensee shall make criminal history records, obtained
under this section, available for examination by an authorized
representative of the NRC to determine compliance with the
regulations and laws.
5. The licensee shall retain all fingerprint and criminal
history records received from the FBI, or a copy if the individual's
file has been transferred, for three (3) years after termination of
employment or determination of access to SGI (whether access was
approved or denied). After the required three (3) year period, these
documents shall be destroyed by a method that will prevent
reconstruction of the information in whole or in part.
[FR Doc. E7-4158 Filed 3-7-07; 8:45 am]
BILLING CODE 7590-01-P