[Federal Register Volume 72, Number 50 (Thursday, March 15, 2007)]
[Notices]
[Pages 12209-12212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4749]


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NUCLEAR REGULATORY COMMISSION

 [EA-07-051]


In the Matter of All Licensees Identified in Attachment 1 to 
Order EA-07-050 and All Other Persons Who Seek or Obtain Access to 
Safeguards Information Described Herein; Order Imposing Fingerprinting 
and Criminal History Records Check Requirements for Access to 
Safeguards Information (Effective Immediately)

I

    The Licensees identified in Attachment 1 \1\ to Order EA-07-050 are 
applicants for, or hold licenses issued in accordance with the Atomic 
Energy Act (AEA) of 1954, as amended, by the U.S. Nuclear Regulatory 
Commission (NRC or Commission) or Agreement States, authorizing them to 
engage in an activity subject to regulation by the Commission or 
Agreement States. 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).\2\ The NRC's implementation of this requirement cannot await the 
completion of the SGI rulemaking,

[[Page 12210]]

which is underway, because the EPAct fingerprinting and criminal 
history records check requirements for access to SGI were immediately 
effective upon enactment of the EPAct. Although the EPAct permits the 
Commission by rule to except certain categories of individuals from the 
fingerprinting requirement, which the Commission has done [see 10 CFR 
part 73.59, 71 FR 33,989 (June 13, 2006))], it is unlikely that 
licensee employees or others are excepted from the fingerprinting 
requirement by the ``fingerprinting relief'' rule. Individuals relieved 
from fingerprinting and criminal history records 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 (IAEA) or 
certain foreign government organizations. In addition, individuals who 
have a favorably-decided U.S. Government criminal history records check 
within the last five (5) years, or 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, from any person,\3\ whether or not a Licensee, 
Applicant, or Certificate Holder of the Commission or Agreement States.
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    \1\ Attachment 1 to Order EA-07-050 contains sensitive 
information and will not be released to the public.
    \2\ 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.
    \3\ 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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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, no 
person may have access to SGI unless the person has an established 
need-to-know the information and satisfies the trustworthy and 
reliability requirements described in Attachment 3 to Order EA-07-050.
    In order to provide assurance that the Licensees identified in 
Attachment 1 to Order EA-07-050 are implementing appropriate measures 
to comply with the fingerprinting and criminal history records check 
requirements for access to SGI, all Licensees identified in Attachment 
1 to Order EA-07-050 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 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 Parts 30 and 73, it is 
hereby ordered, effective immediately, that all licensees identified in 
attachment 1 to order EA-07-050 and all other persons who seek or 
obtain access to safeguards information, as described above, 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 who 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 33,989 (June 13, 2006))], or 
who has a favorably-decided U.S. Government criminal history records 
check within the last five (5) years, or who has an active Federal 
security clearance, provided in the latter two cases that the 
appropriate documentation is made available to the Licensee's NRC-
approved reviewing official.
    2. No person may have access to any SGI if the NRC has determined, 
based on fingerprinting and an FBI identification and criminal history 
records check, that the person may not have access to 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. All Licensees identified in Attachment 1 to Order EA-07-050 
shall comply with the following requirements:
    1. The Licensee shall, within twenty (20) days of the date of this 
Order, establish and maintain a fingerprinting program that meets the 
requirements of Attachment 1 to this Order.
    2. The Licensee shall, within twenty (20) days of the date of this 
Order, submit the fingerprints of one (1) individual who (a) the 
Licensee nominates as the ``reviewing official'' for determining access 
to SGI by other individuals, and (b) has an established need-to-know 
the information and has been determined to be trustworthy and reliable 
in accordance with the requirements described in Attachment 3 to Order 
EA-07-050. 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 the Licensee's reviewing official.\4\ The 
Licensee may, at the same time or later, submit the fingerprints of 
other individuals to whom the Licensee seeks to grant access to SGI. 
Fingerprints shall be submitted and reviewed in accordance with the 
procedures described in Attachment 1 of this Order.
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    \4\ The NRC's determination of this individual's access to SGI 
in accordance with the process described in Enclosure 5 to the 
transmittal letter of this Order is an administrative determination 
that is outside the scope of this Order.
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    3. The Licensee shall, in writing, within twenty (20) days of the 
date of this Order, notify the Commission, (1) if it is unable to 
comply with any of the requirements described in this Order, including 
Attachment 1 to this Order, or (2) if compliance with any of the 
requirements is unnecessary in its specific circumstances. The 
notification shall provide the Licensee's justification for seeking 
relief from or variation of any specific requirement.
    Licensee responses to C.1., C.2., and C.3. above shall be submitted 
to the Director, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555. In addition, Licensee responses shall be marked 
as ``Security-

[[Page 12211]]

Related Information--Withhold Under 10 CFR 2.390.''
    The Director, Office of Federal and State Materials and 
Environmental Management Programs, may, in writing, relax or rescind 
any of the above conditions upon demonstration of good cause by the 
Licensee.

IV

    In accordance with 10 CFR 2.202, the Licensee must, and any other 
person adversely affected by this Order may, submit an answer to this 
Order, and may request a hearing on this Order, within twenty (20) days 
of the date of this Order. Where good cause is shown, consideration 
will be given to extending the time to request a hearing. A request for 
extension of time in which to submit an answer or request a hearing 
must be made in writing to the Director, Office of Federal and State 
Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, and include a statement of 
good cause for the extension. The answer may consent to this Order. 
Unless the answer consents to this Order, the answer shall, in writing 
and under oath or affirmation, specifically set forth the matters of 
fact and law on which the Licensee or other person adversely affected 
relies and the reasons as to why the Order should not have been issued. 
Any answer or request for a hearing shall be submitted to the 
Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission, 
ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies 
also shall be sent to the Director, Office of Federal and State 
Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, and to the Assistant 
General Counsel for Materials Litigation and Enforcement at the same 
address, and to the Licensee if the answer or hearing request is by a 
person other than the Licensee. Because of possible delays in delivery 
of mail to United States Government offices, it is requested that 
answers and requests for hearing be transmitted to the Secretary of the 
Commission either by means of facsimile transmission to 301-415-1101 or 
by e-mail to [email protected] and also to the Office of the 
General Counsel either by means of facsimile transmission to 301-415-
3725 or by e-mail to [email protected]. If a person other than the 
Licensee requests a hearing, that person shall set forth with 
particularity the manner in which his/her interest is adversely 
affected by this Order and shall address the criteria set forth in 10 
CFR 2.309.
    If a hearing is requested by the Licensee or a person whose 
interest is adversely affected, the Commission will issue an Order 
designating the time and place of any hearing. If a hearing is held, 
the issue to be considered at such hearing shall be whether this Order 
should be sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to 
demanding a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the ground 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 8th day of March 2007.

    For The Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials and Environmental 
Management Programs.

    Attachment 1: Requirements for Fingerprinting and Criminal History 
Records Checks of Individuals When Licensee's Reviewing Official is 
Determining Access to Safeguards Information.
    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 Part 73.59, has 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

[[Page 12212]]

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 part 73.4, submit to the 
NRC's Division of Facilities and Security, Mail Stop T-6E46, one 
completed, legible standard fingerprint card (Form FD-258, 
ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each 
individual seeking access to Safeguards Information, to the Director of 
the Division of Facilities and Security, marked for the attention of 
the Division's Criminal History Check Section. Copies of these forms 
may be obtained by writing the Office of Information Services, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling 
(301) 415-5877, or by e-mail to [email protected]. Practicable alternative 
formats are set forth in 10 CFR part 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 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 3 years after termination of employment or 
determination of access to SGI (whether access was approved or denied).
    After the required 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. E7-4749 Filed 3-14-07; 8:45 am]
BILLING CODE 7590-01-P