[Federal Register Volume 72, Number 45 (Thursday, March 8, 2007)]
[Notices]
[Pages 10567-10570]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4159]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[EA-06-231; Docket No. 70-1201; License No. SNM-1168]


In the Matter of Areva NP, Inc., Lynchburg, Va, 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., Lynchburg, (AREVA NP--Lynchburg) is the holder of 
Special Nuclear Material License No. SNM-1168, issued by the U.S. 
Nuclear Regulatory (NRC) pursuant to 10 CFR Part 70. AREVA NP--
Lynchburg 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

[[Page 10568]]

requirement, which the Commission has done [see 10 CFR 73.59, 71 FR 
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 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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--Lynchburg is implementing 
appropriate measures to comply with the fingerprinting and criminal 
history check requirements for access to SGI, AREVA NP--Lynchburg 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--Lynchburg 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 FR 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--Lynchburg's NRC-approved reviewing official.
    2. No person may have access to SGI if the NRC, when making a 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. AREVA NP--Lynchburg shall comply with the following 
requirements:
    1. AREVA NP--Lynchburg 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--Lynchburg 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--
Lynchburg 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--
Lynchburg's reviewing official.\3\ AREVA NP--Lynchburg may, at the same 
time, or later, submit the fingerprints of other individuals to whom 
AREVA NP--Lynchburg seeks to grant access to SGI. Fingerprints shall be 
submitted and reviewed in accordance with the procedures described in 
the Attachment to this Order.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    3. AREVA NP--Lynchburg 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

[[Page 10569]]

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--Lynchburg 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--Lynchburg 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 AREVA NP--Lynchburg's justification for 
seeking relief from, or variation of, any specific requirement.
    AREVA NP--Lynchburg 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--Lynchburg.

IV

    In accordance with 10 CFR 2.202, AREVA NP--Lynchburg 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--Lynchburg, 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--Lynchburg if the 
answer or hearing request is by a person other than AREVA NP--
Lynchburg. 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--
Lynchburg 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--Lynchburg 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--Lynchburg 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.

[[Page 10570]]

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 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. E7-4159 Filed 3-7-07; 8:45 am]
BILLING CODE 7590-01-P