[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Notices]
[Pages 40770-40773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16288]



[[Page 40770]]

=======================================================================
-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[EA-13-041; NRC-2013-0145]


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 an 
Agreement State, 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 73.59, 77 FR 34206 (June 11, 
2012), 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 U.S. 
Department of Energy (DOE), except that the DOE shall be considered 
a person with respect to those facilities of the DOE 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-13-040 (NRC-2013-0144).
    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 (77 FR 34206 (June 11, 2012)), 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 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-13-040. 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

[[Page 40771]]

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 (72 FR 49139, 
August, 28, 2007). 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 an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 
ten (10) days prior to the filing deadline the participant should 
contact the Office of the Secretary by email at [email protected], 
or by telephone at 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 proceeding in which it is participating; and (2) advise 
the Secretary that the participant will be submitting a request or 
petition for hearing (even in instances in which the participant or its 
counsel or representative, already holds an NRC-issued digital ID 
certificate). Based upon this information, the Secretary will establish 
an electronic docket for the hearing in this proceeding if the 
Secretary has not already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
http://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through EIE, users will be required to install a Web 
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
a hearing or petition for leave to intervene. 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 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing 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 email notice confirming receipt of the document. The 
E-Filing system also distributes an email 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, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at http://www.nrc.gov/site-help/e-submittals.html, by email at 
[email protected], or by a toll-free call at 866-672-7640. The NRC 
Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern 
Time, Monday through Friday, excluding government holidays.

[[Page 40772]]

    Participants who believe that they have good cause for not 
submitting documents electronically must file an exemption request, 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. A presiding officer, 
having granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd1.nrc.gov/ehd, unless excluded pursuant to an order of the 
Commission, or the 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, unless an NRC 
regulation or other law requires submission of such information. 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 submission.
    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 immediate effectiveness of 
this order.

    Dated at Rockville, Maryland, this 27th day of June, 2013.

    For the Nuclear Regulatory Commission.
Brian J. McDermott,
Director, Division of Materials Safety and State Agreements, 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

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 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-13-040, 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

[[Page 40773]]

appropriate method listed in 10 CFR 73.4, submit to the NRC's Division 
of Facilities and Security, Mail Stop TWB-05B32M, one completed, 
legible standard fingerprint card (Form FD-258, ORIMDNRC000Z), 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 Program. Copies of these forms may be obtained by 
writing the Office of Information Services, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555, by calling 630-829-9565, or by email 
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, or 
money order, made payable to ``U.S. NRC.'' [For guidance on making 
electronic payments, contact the Facilities Security Branch, Division 
of Facilities and Security, at 301-492-3531]. Combined payment for 
multiple applications is acceptable. The application fee (currently 
$26) 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 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 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. 2013-16288 Filed 7-5-13; 8:45 am]
BILLING CODE 7590-01-P