[Federal Register Volume 73, Number 128 (Wednesday, July 2, 2008)]
[Notices]
[Pages 37990-37993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14958]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[EA-08-162]
In the Matter of Licensee Identified in Attachment 1 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 Licensee identified in Attachment 1 \1\ to this Order, holds a
license issued in accordance with the Atomic Energy Act (AEA) of 1954,
as amended, by the U.S. Nuclear Regulatory Commission (NRC or
Commission), authorizing them to engage in an activity subject to
regulation by the Commission or Agreement States. In accordance with
Section 149 of the AEA, fingerprinting and a Federal Bureau of
Investigation (FBI) identification and criminal history records check
are required 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, which is
underway. Although the AEA 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 AEA fingerprinting requirement and
need not be fingerprinted again. Therefore, in accordance with Section
149 of the AEA 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.
---------------------------------------------------------------------------
\1\ Attachment 1 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.
---------------------------------------------------------------------------
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 149 of the AEA requires 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-08-161.
In order to provide assurance that the Licensees identified in
Attachment 1 to this Order 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 this Order 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 this order 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
[[Page 37991]]
documentation is made available to the Licensee's NRC-approved
reviewing official described in paragraph III.C.2 of this Order.
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 this Order 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 2 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-08-161. 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 or
designate an additional reviewing official(s). Fingerprints shall be
submitted and reviewed in accordance with the procedures described in
Attachment 2 of this Order.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 2 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-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 within twenty (20) days of the date of this Order. In addition,
the Licensee and any other person adversely affected by this Order may
request a hearing of this Order within twenty (20) days of the date of
the Order. Where good cause is shown, consideration will be given to
extending the time to request a hearing. A request for extension of
time 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. If the answer includes a
request for a hearing, it shall, under oath or affirmation,
specifically set forth the matters of fact and law on which the
Licensee relies and the reasons as to why the Order should not have
been issued. If a person other than the Licensee requests a hearing,
that person shall set forth with particularity the manner in which his
interest is adversely affected by this Order and shall address the
criteria set forth in 10 CFR 2.309(d).
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule, which the NRC
promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in
pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process
requires participants to submit and serve all adjudicatory documents
over the internet, or in some cases to mail copies on electronic
storage media. Participants may not submit paper copies of their
filings unless they seek a waiver in accordance with the procedures
described below.
To comply with the procedural requirements associated with E-
Filing, at least ten (10) days prior to the filing deadline the
requestor must contact the Office of the Secretary by e-mail at
[email protected], or by calling (301) 415-1677, to request (1) a
digital ID certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any NRC proceeding in which it is participating; and/or (2)
creation of an electronic docket for the proceeding (even in instances
when the requestor (or its counsel or representative) already holds an
NRC-issued digital ID certificate). Each requestor will need to
download the Workplace Forms ViewerTM to access the
Electronic Information Exchange (EIE), a component of the E-Filing
system. The Workplace Forms ViewerTM is free and is
available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying for a digital ID certificate
also is available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
Once a requestor has obtained a digital ID certificate, had a
docket created, and downloaded the EIE viewer, it can then submit a
request for a hearing through EIE. Submissions should be in Portable
Document Format (PDF) in accordance with NRC guidance available on the
NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html.
A filing is considered complete at the time the filer submits its
document through EIE. To be timely, electronic filings must be
submitted to the EIE system no later than 11:59 p.m. Eastern Time on
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming
receipt of the document. The EIE system also distributes an e-mail
notice that provides access to the document to the NRC Office of the
General Counsel and any others who have advised the Office of the
Secretary that they wish to participate in the proceeding, so that the
filer need not serve the document on those participants separately.
Therefore, any others who wish to participate in the proceeding (or
their counsel or representative) must apply for and receive a digital
ID certificate before a hearing request is filed so that they may
obtain access to the document via the E-Filing system.
[[Page 37992]]
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line,
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,
Monday through Friday. The help line number is (800) 397-4209 or
locally, (301) 415-4737.
Participants who believe that they have good cause for not
submitting documents electronically must file a motion, in accordance
with 10 CFR 2.302(g), with their initial paper filing requesting
authorization to continue to submit documents in paper format. Such
filings must be submitted by (1) first class mail addressed to the
Office of the Secretary of the Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier, express mail, or expedited
delivery service to the Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville, Pike, Rockville, Maryland, 20852,
Attention: Rulemaking and Adjudications Staff. Participants filing a
document in this manner are responsible for serving the document on all
other participants. Filing is considered complete by first-class mail
as of the time of deposit in the mail, or by courier, express mail, or
expedited delivery service upon depositing the document with the
provider of the service.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant
to an order of the Commission, an Atomic Safety and Licensing Board, or
a Presiding Officer. Participants are requested not to include personal
privacy information, such as social security numbers, home addresses,
or home phone numbers in their filings. With respect to copyrighted
works, except for limited excerpts that serve the purpose of the
adjudicatory filings and would constitute a Fair Use application,
Participants are requested not to include copyrighted materials in
their works.
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
requesting 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
specified in Section III above 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 specified 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 immmediate effectiveness of this
order.
Dated this 18th day of June 2008.
For the Nuclear Regulatory Commission.
George Pangburn,
Acting Director, Office of Federal and State Materials and
Environmental Management Programs.
Attachment 1: List of Applicable Materials Licensees Redacted.
Attachment 2: 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 NRC Order EA-
08-161, in making a determination whether to grant access to SGI to
individuals who have a need-to-know the SGI.
6. The Licensee shall use any information obtained as part of a
criminal history records check solely for the purpose of determining
an individual's suitability for access to SGI.
7. The Licensee shall document the basis for its determination
whether to grant access to SGI.
B. The Licensee shall notify the NRC of any desired change in
reviewing officials. The NRC will determine whether the individual
nominated as the new reviewing official may have access to SGI based
on a previously-obtained or new criminal history check and,
therefore, will be permitted to serve as the Licensee's reviewing
official.
Prohibitions
A Licensee shall not base a final determination to deny an
individual access to SGI solely on the basis of information received
from the FBI involving: An arrest more than one (1) year old for
which there is no information of the disposition of the case, or an
arrest that resulted in dismissal of the charge or an acquittal.
A Licensee shall not use information received from a criminal
history check obtained pursuant to this Order in a manner that would
infringe upon the rights of any individual under the First Amendment
to the Constitution of the United States, nor shall the Licensee use
the information in any way which would discriminate among
individuals on the basis of race, religion, national origin, sex, or
age.
Procedures for Processing Fingerprint Checks
For the purpose of complying with this Order, Licensees shall,
using an appropriate method listed in 10 CFR 73.4, submit to the
NRC's Division of Facilities and Security, Mail Stop T-6E46, one
completed, legible standard fingerprint card (Form FD-258,
ORIMDNRCOOOZ) or, where practicable, other fingerprint records for
each individual seeking access to 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,
by calling (301) 415-7232, 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.
[[Page 37993]]
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 resubmission 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 Part 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. E8-14958 Filed 7-1-08; 8:45 am]
BILLING CODE 7590-01-P