[Federal Register Volume 72, Number 66 (Friday, April 6, 2007)]
[Notices]
[Pages 17202-17205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1697]


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NUCLEAR REGULATORY COMMISSION

[EA-06-235, Docket No.: 70-1151, License No.: SNM-1107]


In the Matter of Westinghouse Electric Company LLC 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

    Westinghouse Electric Company, LLC (WEC), Columbia, SC holds a 
license issued in accordance with the Atomic Energy Act (AEA) of 1954, 
as amended, by the U.S. Nuclear Regulatory Commission (NRC), 
authorizing it to engage in an activity subject to regulation by the 
Commission.
    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 will be 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.
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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.

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, and satisfies the trustworthiness and reliability 
requirements described in Attachment 2 to this Order.
    To provide assurance that WEC is implementing appropriate measures 
to a consistent level of protection to prohibit unauthorized disclosure 
of SGI, and to

[[Page 17203]]

comply with the fingerprinting and criminal history check requirements 
for access to SGI, WEC shall implement the requirements of 10 CFR 73.21 
and 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 AEA of 1954 as amended, and the 
Commission's regulations in 10 CFR 2.202, 10 CFR Part 70, and 10 CFR 
Part 73, It is hereby ordered, EFFECTIVE IMMEDIATELY, that WEC and all 
other persons who seek or obtain access to safeguards information as 
described herein shall comply with the requirements set forth in 10 CFR 
73.21 and this Order.
    A. 1. No person may have access to SGI unless that person has a 
need-to-know the SGI, has been fingerprinted, 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 the 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 the latter two (2) cases that the appropriate documentation 
is made available to WEC'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. WEC shall comply with the following requirements:
    1. WEC 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. WEC 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 2 to this 
Order. 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 WEC's reviewing official.\3\ WEC may, at 
the same time or later, submit the fingerprints of other individuals to 
whom WEC seeks to grant access to SGI. Fingerprints shall be submitted 
and reviewed in accordance with the procedures described in Attachment 
1 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 [available 
through NRC's Agencywide Documents Access and Management System 
(ADAMS)] to the transmittal letter of this Order is an 
administrative determination that is outside the scope of this 
Order.
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    3. WEC 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. WEC 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. WEC 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 Attachment 1; 
or (2) if compliance with any of the requirements is unnecessary in its 
specific circumstances. The notification shall provide WEC's 
justification for seeking relief from, or variation of, any specific 
requirement.
    WEC's 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, WEC 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 upon 
demonstration of good cause by WEC.

IV

    In accordance with 10 CFR 2.202, WEC must, and any other person 
adversely affected by this Order may, submit an answer to this Order 
and may request a hearing with regard to 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 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 WEC 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 WEC, if the answer or hearing request is by an entity other than 
WEC. 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 WEC 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 WEC, 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

[[Page 17204]]

shall be whether this Order should be sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), WEC 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 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 29th day of March, 2007.

    For the Nuclear Regulatory Commission.
Michael F. Weber,
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 trustworthiness and 
reliability requirements in Attachment 2 to this Order 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 
to grant access to SGI.
    B. The licensee shall notify the Nuclear Regulatory Commission 
(NRC) of any desired change in reviewing officials, in compliance 
with C.2 of the subject Order. 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, 
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 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 necessary changes in accordance with the 
information supplied by that agency. The licensee must allow at 
least

[[Page 17205]]

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 SGI. 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.

Attachment 2--Trustworthiness and Reliability Requirements for 
Individuals Handling Safeguards Information

    In order to ensure the safe handling, use, and control of 
information designated as Safeguards Information, each licensee 
shall control and limit access to the information to only those 
individuals who have established the need-to-know the information, 
and are considered to be trustworthy and reliable. Licensees shall 
document the basis for concluding that there is reasonable assurance 
that individuals granted access to Safeguards Information are 
trustworthy and reliable, and do not constitute an unreasonable risk 
for malevolent use of the information.
    The Licensee shall comply with the requirements of this 
attachment:
    1. The trustworthiness and reliability of an individual shall be 
determined based on a background investigation:
    (a) The background investigation shall address at least the past 
three (3) years, and, at a minimum, include verification of 
employment, education, and personal references. The licensee shall 
also, to the extent possible, obtain independent information to 
corroborate that provided by the employee (i.e., seeking references 
not supplied by the individual).
    (b) If an individual's employment has been less than the 
required three (3) year period, educational references may be used 
in lieu of employment history.
    The licensee's background investigation requirements may be 
satisfied for an individual that has an active Federal security 
clearance.
    2. The licensee shall retain documentation regarding the 
trustworthiness and reliability of individual employees for three 
years after the individual's employment ends.

[FR Doc. 07-1697 Filed 4-5-07; 8:45 am]
BILLING CODE 7590-01-P