[Federal Register: August 31, 2006 (Volume 71, Number 169)]
[Notices]               
[Page 51861-51864]         

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NUCLEAR REGULATORY COMMISSION

[EA-06-155]

 
In the Matter of: All Licensees Identified in Attachment 1 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

    The Licensees identified in Attachment 1\1\ to this Order hold 
licenses issued in accordance with the Atomic Energy Act (AEA) of 1954, 
as amended, by the U.S. Nuclear Regulatory Commission (NRC or 
Commission) or Agreement States, authorizing them to engage in an 
activity subject to regulation by the Commission or Agreement States. 
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) \2\. 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 upon 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 FR 33989 (June 13, 2006)), it is 
unlikely that licensee employees are 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 (IAEA) or certain foreign 
government organizations. In addition, individuals who have 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

[[Page 51862]]

person \3\, from any person, whether or not a Licensee, Applicant, or 
Certificate Holder of the Commission or Agreement States.
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    \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.
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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 (ASM) or Compensatory Measures (CM) for certain 
radioactive materials. The requirements imposed by these Orders, and 
certain measures licensees have developed to comply with the Orders, 
were designated by the NRC as SGI. For some materials licensees, the 
storage and handling requirements for the SGI have been modified from 
the existing 10 CFR part 73 SGI requirements for reactors and fuel 
cycle facilities that require a higher level of protection; such SGI is 
designated as Safeguards Information--Modified Handling (SGI-M). 
However, the information subject to the SGI-M handling and protection 
requirements is SGI, and licensees and other persons who seek or obtain 
access to such SGI are subject to this Order.

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, as 
required by existing Orders, which remain in effect, no person may have 
access to SGI unless the person has an established need-to-know and 
satisfies the trustworthy and reliability requirements of those Orders.
    In order to provide assurance that the Licensees identified in 
Attachment 1 are implementing appropriate measures to comply with the 
fingerprinting and criminal history check requirements for access to 
SGI, all Licensees identified in Attachment 1 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 Safeguards Information 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 33989 (June 13, 2006)), or 
who has 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 either case that the appropriate documentation 
is made available to the Licensee's NRC-approved reviewing official.
    2. No person may have access to any Safeguards Information 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 currently has 
access to SGI in accordance with the previously-issued NRC Orders, who 
continues to need access to Safeguards Information, and who the 
Licensee nominates as the ``reviewing official'' for determining access 
to SGI by other individuals. 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. Fingerprints shall be submitted and reviewed in 
accordance with the procedures described in Attachment 2 of this Order.
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    \4\ 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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    3. The Licensee 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 trustworthy and reliability determination) that the 
individual may continue to have access to SGI. The Licensee shall make 
determinations on continued access to SGI by November 20, 2006, in part 
on the results of the fingerprinting and criminal history check, for 
those individuals that were previously granted access to SGI before the 
issuance of this Order.
    4. 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 the Order, including 
Attachment 2, 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., 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, Licensee 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 the Licensee.

[[Page 51863]]

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, and may request a hearing on 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 on which the 
Licensee or other person adversely affected relies 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 also shall 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 the Licensee if the answer or hearing request is by a person 
other than the Licensee. 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 by 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 by e-mail 
to [email protected] If a person other than the Licensee requests 
a hearing, that person shall set forth with particularity the manner in 
which his/her 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 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 
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 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 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 21st day of August 2006.

    For the Nuclear Regulatory Commission.
Jack R. Strosnider,
Director, Office of Nuclear Material Safety and Safeguards.

Attachment 1: List of Applicable Licensees--Redacted

Attachment 2: Requirements for Fingerprinting and Criminal History 
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 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 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 of the previously-issued NRC Orders, in making a 
determination whether to grant access to Safeguards Information 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 Safeguards Information.
    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 Safeguards 
Information 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 Safeguards Information 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 51864]]

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 20555-0001, 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) 415-7739]. 
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 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 gaining Licensee 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. 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. 06-7283 Filed 8-30-06; 8:45 am]

BILLING CODE 7590-01-P