[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]
[[Page 10525]]
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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.
[[Page 10526]]
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