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), 51861-51864 [06-7283]
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Federal Register / Vol. 71, No. 169 / Thursday, August 31, 2006 / Notices
specified in 10 CFR 20.1402. Because
the proposed action will not
significantly impact the quality of the
human environment, the NRC staff
concludes that the proposed action is
the preferred alternative.
Agencies and Persons Consulted
NRC provided a draft of this
Environmental Assessment to the State
of New Jersey’s Department of
Environmental Protection for review on
June 13, 2006. On June 29, 2006, the
State of New Jersey’s Department of
Environmental Protection responded by
letter. The State agreed with the
conclusions of the EA, and otherwise
had no comments.
The NRC staff has determined that the
proposed action is of a procedural
nature, and will not affect listed species
or critical habitat. Therefore, no further
consultation is required under Section 7
of the Endangered Species Act. The
NRC staff has also determined that the
proposed action is not the type of
activity that has the potential to cause
effects on historic properties. Therefore,
no further consultation is required
under Section 106 of the National
Historic Preservation Act.
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III. Finding of No Significant Impact
The NRC staff has prepared this EA in
support of the proposed action. On the
basis of this EA, the NRC finds that
there are no significant environmental
impacts from the proposed action, and
that preparation of an environmental
impact statement is not warranted.
Accordingly, the NRC has determined
that a Finding of No Significant Impact
is appropriate.
IV. Further Information
Documents related to this action,
including the application for license
amendment and supporting
documentation, are available
electronically at the NRC’s Electronic
Reading Room at https://www.nrc.gov/
reading-rm/adams.html. From this site,
you can access the NRC’s Agencywide
Document Access and Management
System (ADAMS), which provides text
and image files of NRC’s public
documents. The documents related to
this action are listed below, along with
their ADAMS accession numbers.
1. NRC License No. 29–30390–01
inspection and licensing records
[ADAMS Accession Nos. ML031130227,
ML031250277, ML042980018,
ML060890371, ML060960381,
ML060960391, and ML060960509];
2. Request for unrestricted release of
the facility at 107 College Road East,
Princeton, New Jersey with survey
results for SFBC Taylor Technologies,
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Inc., dated May 1, 2006 [ADAMS
Accession No. ML061280123];
3. Request for Additional Information
(RAI) issued May 18, 2006, by the U.S.
NRC [ADAMS Accession No.
ML061390010];
4. SFBC Taylor Technology, Inc.’’s
response dated May 26, 2006, to U.S.
NRC’s RAI [ML061510154];
5. NUREG–1757, ‘‘Consolidated
NMSS Decommissioning Guidance’’;
6. Title 10 Code of Federal
Regulations, Part 20, Subpart E,
‘‘Radiological Criteria for License
Termination’’;
7. Title 10, Code of Federal
Regulations, Part 51, ‘‘Environmental
Protection Regulations for Domestic
Licensing and Related Regulatory
Functions’’;
8. NUREG–1496, ‘‘Generic
Environmental Impact Statement in
Support of Rulemaking on Radiological
Criteria for License Termination of NRCLicensed Nuclear Facilities.’’
If you do not have access to ADAMS,
or if there are problems in accessing the
documents located in ADAMS, contact
the NRC Public Document Room (PDR)
Reference staff at 1–800–397–4209, 301–
415–4737, or by e-mail to pdr@nrc.gov.
These documents may also be viewed
electronically on the public computers
located at the NRC’s PDR, O 1 F21, One
White Flint North, 11555 Rockville
Pike, Rockville, MD 20852. The PDR
reproduction contractor will copy
documents for a fee.
Dated at Region I, 475 Allendale Road,
King of Prussia this 23rd day of August 2006.
For the Nuclear Regulatory Commission.
James P. Dwyer,
Chief, Commercial and R&D Branch, Division
of Nuclear Materials Safety, Region I.
[FR Doc. 06–7285 Filed 8–30–06; 8:45 am]
BILLING CODE 7590–01–P
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 11 to this Order hold
1 Attachment 1 contains sensitive information
and will not be released to the public.
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51861
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
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.
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Federal Register / Vol. 71, No. 169 / Thursday, August 31, 2006 / Notices
person 3, from any person, whether or
not a Licensee, Applicant, or Certificate
Holder of the Commission or Agreement
States.
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
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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
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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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 NRCapproved 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 previouslyissued NRC Orders, who continues to
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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.
3. The Licensee may allow any
individual who currently has access to
SGI in accordance with the previouslyissued 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 ‘‘SecurityRelated 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.
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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Federal Register / Vol. 71, No. 169 / Thursday, August 31, 2006 / Notices
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 hearingdocket@nrc.gov
and also to the Office of the General
Counsel either by means of facsimile
transmission to 301–415–3725 or by email to OGCMailCenter@nrc.gov. 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
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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
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51863
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
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51864
Federal Register / Vol. 71, No. 169 / Thursday, August 31, 2006 / Notices
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 forms@nrc.gov.
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 resubmission 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
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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
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Sfmt 4703
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
OFFICE OF PERSONNEL
MANAGEMENT
Excepted Service
Office of Personnel
Management (OPM).
ACTION: Notice.
AGENCY:
SUMMARY: This gives notice of OPM
decisions granting authority to make
appointments under Schedules A, B,
and C in the excepted service as
required by 5 CFR 6.6 and 213.103.
FOR FURTHER INFORMATION CONTACT:
David Guilford, Center for Leadership
and Executive Resources Policy,
Division for Strategic Human Resources
Policy, 202–606–1391.
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]]>Agencies
[Federal Register Volume 71, Number 169 (Thursday, August 31, 2006)]
[Notices]
[Pages 51861-51864]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-7283]
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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 hearingdocket@nrc.gov and also to the Office of the General Counsel
either by means of facsimile transmission to 301-415-3725 or by e-mail
to OGCMailCenter@nrc.gov. 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 forms@nrc.gov. 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
