[Federal Register Volume 75, Number 44 (Monday, March 8, 2010)]
[Notices]
[Pages 10525-10526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4829]



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NUCLEAR REGULATORY COMMISSION

[Docket No.: 70-7015; EA-2009-291; NRC-2009-0187]


In the Matter of: AREVA Enrichment Services, LLC (Eagle Rock 
Enrichment Facility) and All Other Persons Who Seek or Obtain Access to 
Safeguards Information Described Herein; Order Imposing Requirements 
for a Reviewing Official for the Implementation of a Safeguards 
Information Program (Effective Immediately)

I

    AREVA Enrichment Services, LLC (AES), has applied to the U.S. 
Nuclear Regulatory Commission (NRC) for a license to authorize it to 
construct and operate a uranium enrichment facility in Bonneville 
County, Idaho. AES submitted a license application to the NRC on 
December 30, 2008 and a revised license application on April 23, 2009; 
this revised license application is currently under review. On October 
22, 2009, AES notified the NRC of its implementation of a Safeguards 
Information (SGI) program for the Eagle Rock Enrichment Facility in 
accordance with Title 10 of the Code of Federal Regulations (10 CFR) 
73.22, ``Protection of Safeguards Information: Specific Requirements.''
    On August 8, 2005, the Energy Policy Act of 2005 (EPAct) was 
enacted. Section 652 of the EPAct amended Section 149 of the Atomic 
Energy Act of 1954 (AEA), as amended, 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 SGI.\1\ Initially, after enactment of the EPAct, the 
Commission issued orders to certain licensees imposing fingerprinting 
and criminal history checks for individuals seeking access to SGI.
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    \1\ SGI 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.
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    Subsequently, the NRC amended the regulations at 10 CFR Part 73, 
``Physical Protection of Plants and Materials,'' to incorporate the 
fingerprinting and criminal history records check requirements for 
access to SGI, to conform with the EPAct, and to include the general 
requirements of the Commission's orders. The amendment to 10 CFR Part 
73 addressed and expanded the protection of SGI, including access to 
SGI, the types of security information to be protected, and handling 
and storage requirements. The requirements set forth in 10 CFR Part 73 
reflect the minimum restrictions that the Commission found necessary to 
protect SGI against inadvertent release or unauthorized disclosure that 
might compromise public health and safety or the common defense and 
security.
    Although the amendment to 10 CFR Part 73 generally incorporates the 
requirements of the orders, it did not codify the requirement for each 
licensee or applicant to nominate a reviewing official for NRC 
approval, including the notification to the NRC of any changes to the 
reviewing official. The orders required licensees to nominate an 
individual to review the results of an individual's criminal history 
records check report and other relevant trustworthiness and reliability 
information to determine whether that individual may be given access to 
SGI. In the October 22, 2009, notification of its implementation of an 
SGI program, AES nominated a reviewing official and submitted the 
individual's fingerprints to the NRC under separate cover. This order 
imposes the requirement for nominating an initial reviewing official 
and for notifying the NRC of any desired change to the reviewing 
official.

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 criminal history records 
check of each individual who seeks access to SGI. In addition, the 
regulations at 10 CFR Part 73 state that no person may have access to 
SGI unless the person has an established need to know and satisfies the 
trustworthiness and reliability requirements of the regulations.
    In order to provide assurance that AES is taking appropriate 
measures to comply with the fingerprinting and criminal history check 
requirements for access to SGI, AES shall implement the requirements of 
this order. In addition, pursuant to 10 CFR 2.202, ``Orders,'' the NRC 
finds that in light of the common defense and security matters 
identified above, which warrant the issuance of this order, public 
health and safety and the public interest require that this order be 
effective immediately.

III

    Accordingly, under Sections 53, 62, 63, 81, 147, 149, 161b, 161i, 
161o, 182, and 186 of the AEA and under the Commission's regulations at 
10 CFR 2.202; 10 CFR Part 30, ``Rules of General Applicability to 
Domestic Licensing of Byproduct Material''; 10 CFR Part 40, ``Domestic 
Licensing of Source Material''; 10 CFR Part 70, ``Domestic Licensing of 
Special Nuclear Material''; and 10 CFR Part 73, it is hereby ordered, 
effective immediately, that AES and all other persons who seek or 
obtain access to SGI described herein shall comply with the 
requirements set forth in this order.
    A. 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 applicable requirements and Condition III.A. above. 
Prior to providing SGI to any person, a copy of this Order shall be 
provided to that person.
    C. AES shall comply with the following three requirements:
    1. The NRC has determined that the individual whom AES nominated as 
its reviewing official meets the fingerprinting and FBI identification 
and criminal history records check requirements.\2\ AES shall, in a 
written response to the Commission, inform the NRC whether this 
individual is approved as AES's reviewing official, based upon the 
required background check according to 10 CFR 73.22(b), for determining 
access to SGI by this individual. AES may, at the same time or later, 
submit the fingerprints of other individuals for whom it seeks to grant 
access to SGI. Fingerprints shall be submitted and reviewed in 
accordance with the procedures described in 10 CFR Part 73.
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    \2\ The NRC's determination of this individual's access to SGI 
in accordance with the process described in Enclosure 3 to the 
transmittal letter of this order is an administrative determination 
that is outside the scope of this order.
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    2. AES shall notify the NRC of any desired change to the reviewing 
official. 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 AES reviewing official, subject to 
AES performing the required 10 CFR 73.22 background check. The NRC will 
base its determination on a previously obtained or new criminal history 
records check.

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    3. AES shall, in writing, within 20 days of the date of this order, 
notify the Commission (a) if it is unable to comply with any of the 
requirements described in the order or (b) if compliance with any of 
the requirements is unnecessary based on its specific circumstances. In 
the notification, AES shall provide justification for seeking relief 
from, or the variation of, any specific requirement.
    Licensees shall submit their responses to B.1, B.2, and B.3 above 
to the Director, Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555. In addition, 
licensees shall mark their responses 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 AES.

IV

    In accordance with 10 CFR 2.202, AES 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 20 days of the date of 
this order. Where good cause is shown, the NRC will consider extending 
the time to request a hearing. A request for an extension of time in 
which to submit an answer or to 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 must 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 AES or 
other entities adversely affected rely and the reasons as to why the 
NRC should not have issued the order. 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 AES if an entity other than AES submits the answer or hearing 
request. Because of possible delays in the delivery of mail to U.S. 
Government offices, the NRC requests that answers and requests for 
hearings be transmitted to the Secretary of the Commission either by 
facsimile transmission to 301-415-1101 or by e-mail to 
[email protected] and also to the Office of the General Counsel 
either by facsimile transmission to 301-415-3725 or by e-mail to 
[email protected]. If an entity other than AES 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, ``Public Inspections, Exemptions, 
Requests for Withholding.''
    If AES or a person whose interest is adversely affected by this 
order requests a hearing, 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 this hearing shall be whether this order 
should be sustained.
    Under 10 CFR 2.202(c)(2)(i), AES may, in addition to demanding a 
hearing, at the time the answer is filed, or soon thereafter, 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 a 
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 20 days from the date of this order without further issuance of 
an 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 a hearing shall not stay the immediate 
effectiveness of this order.

    Dated this 26th day of February 2010.

    For the Nuclear Regulatory Commission.
Michael F. Weber,
Director, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 2010-4829 Filed 3-5-10; 8:45 am]
BILLING CODE 7590-01-P