In the Matter of All Licensees Identified in Attachment 1 to Order EA-06-289 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), 71593-71596 [E6-20967]
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Federal Register / Vol. 71, No. 237 / Monday, December 11, 2006 / Notices
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 1, 475 Allendale Road,
King of Prussia, Pennsylvania, this 4th day of
December 2006.
For the Nuclear Regulatory Commission.
James P. Dwyer,
Chief, Commercial and R&D Branch, Division
of Nuclear Materials Safety, Region 1.
[FR Doc. E6–20955 Filed 12–8–06; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[EA–06–290]
In the Matter of All Licensees Identified
in Attachment 1 to Order EA–06–289
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
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The Licensees identified in
Attachment 1 1 to Order EA–06–289
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
records check requirements for access to
1 Attachment 1 to Order EA–06–289 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.
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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 33,989
(June 13, 2006)], 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
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
person, from any person 3, whether or
not a Licensee, Applicant, or Certificate
Holder of the Commission or Agreement
States.
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
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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71593
amended Section 149 of the AEA to
require fingerprinting and an FBI
identification and criminal history
records check of each individual who
seeks access to SGI. In addition, no
person may have access to SGI unless
the person has an established need-toknow the information and satisfies the
trustworthy and reliability requirements
described in Attachment 3 to Order EA–
06–289.
In order to provide assurance that the
Licensees identified in Attachment 1 to
Order EA–06–289 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 Order EA–06–289 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 order ea06–289 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 and its attachment.
A. 1. No person may have access to
SGI unless that person has a need-toknow 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 33,989 (June 13, 2006)], 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.
2. No person may have access to any
SGI if the NRC has determined, based
on fingerprinting and an FBI
identification and criminal history
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Federal Register / Vol. 71, No. 237 / Monday, December 11, 2006 / Notices
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 Order EA–06–289 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 1 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–06–289. 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 1
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 1 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 ‘‘SecurityRelated Information—Withhold Under
10 CFR 2.390.’’
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.
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15:15 Dec 08, 2006
Jkt 211001
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, 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 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. 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 Federal and State Materials and
Environmental Management Programs,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555, and 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
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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 1st day of December 2006.
For The Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials
and Environmental Management Programs.
Attachment 1: 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
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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 this Order,
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 previouslyobtained or new criminal history check
and, therefore, will be permitted to
serve as the Licensee’s reviewing
official.
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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.
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15:15 Dec 08, 2006
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Procedures for Processing Fingerprint
Checks
For the purpose of complying with
this Order, Licensees shall, using an
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–
7404]. 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
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71595
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.
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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. E6–20967 Filed 12–8–06; 8:45 am]
BILLING CODE 7590–01–P
POSTAL RATE COMMISSION
Sunshine Act Meetings Notice
Postal Rate Commission.
Thursday, December 14,
2006, at 10 a.m.
PLACE: Commission conference room
901 New York Avenue, NW., Suite 200,
Washington, DC 20268–0001.
STATUS: Closed.
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AGENCY:
TIME AND DATE:
VerDate Aug<31>2005
15:15 Dec 08, 2006
Decision in
Docket No. N2006–1, Evolutionary
Network Realignment.
MATTERS TO BE CONSIDERED:
Jkt 211001
CONTACT PERSON FOR MORE INFORMATION:
Stephen L. Sharfman, General Counsel,
Postal Rate Commission, 202–789–6820
or ssharfman@prc.gov.
Dated: December 7, 2006.
Steven W. Williams,
Secretary.
[FR Doc. 06–9640 Filed 12–7–06; 12:38 pm]
BILLING CODE 7710–FW–M
RAILROAD RETIREMENT BOARD
Agency Forms Submitted for OMB
Review, Request for Comments
Summary: In accordance with the
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35), the Railroad
Retirement Board (RRB) will be sending
an Information Collection Request (ICR)
to the Office of Information and
Regulatory Affairs (OIRA), Office of
Management and Budget (OMB) to
propose an extension to the following
collection of information: 3220–0192,
Voluntary Customer Surveys in
Accordance with E.O. 12862, consisting
of RRB Form(s) G–201, Customer
Assessment Survey.
In accordance with Executive Order
12862, the Railroad Retirement Board
(RRB) conducts a number of customer
surveys designed to determine the kinds
and quality of services our beneficiaries,
claimants, employers and members of
the public want and expect, as well as
their satisfaction with existing RRB
services. The information collected is
used by RRB management to monitor
customer satisfaction by determining to
what extent services are satisfactory and
where and to what extent services can
be improved. The surveys are limited to
data collections that solicit strictly
voluntary opinions, and do not collect
information which is required or
regulated. The information collection,
which was first approved by the Office
of Management and Budget (OMB) in
1997, provides the RRB with a generic
clearance authority. This generic
authority allows the RRB to submit a
variety of new or revised customer
survey instruments (needed to timely
implement customer monitoring
activities) to the Office of Management
and Budget (OMB) for expedited review
and approval. Our ICR describes the
information we seek to collect from the
public.
The RRB invites comments on the
proposed collection of information to
determine (1) The practical utility of the
collection; (2) the accuracy of the
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estimated burden of the collection; (3)
ways to enhance the quality, utility and
clarity of the information that is the
subject of collection; and (4) ways to
minimize the burden of collections on
respondents, including the use of
automated collection techniques or
other forms of information technology.
Comments to RRB or OIRA must contain
the OMB control number of the ICR. For
proper consideration of your comments,
it is best if RRB and OIRA receive them
within 30 days of publication date.
Previous Requests for Comments: The
RRB has already published the initial
60-day notice (71 FR 51236 on August
29, 2006) required by 44 U.S.C.
3506(c)(2).That request elicited no
comments.
Information Collection Request (ICR)
Title: Voluntary Customer Surveys in
Accordance with E.O. 12862.
OMB Control Number: 3220–0192.
Form(s) submitted: G–201, Customer
Assessment Survey.
Type of request: Extension of a
currently approved collection.
Affected public: Individuals or
households, Business-or-other-for profit.
Obligation to Respond: Voluntary.
Abstract: The Railroad Retirement
Board (RRB) utilizes voluntary customer
surveys to ascertain customer
satisfaction with the RRB in terms of
timeliness, appropriateness, access, and
other measures of quality service.
Surveys involve individuals that are
direct or indirect beneficiaries of RRB
services as well as railroad employers
who must report earnings.
Changes Proposed: The RRB proposes
no changes to the information
collection.
The burden estimate for this ICR is
unchanged as follows:
Estimated annual number of
respondents: 1,750.
Total annual responses: 1,750.
Total annual reporting hours: 735
For Further Information Contact:
Copies of the form and supporting
documents can be obtained from
Charles Mierzwa, the agency clearance
officer at (312–751–3363) or
Charles.Mierzwa@rrb.gov.
Comments: Comments regarding the
information collection should be
addressed to Ronald J. Hodapp, Railroad
Retirement Board, 844 North Rush
Street, Chicago, Illinois 60611–2092 or
Ronald.Hodapp@rrb.gov and to the
OMB Desk Officer for the RRB, Karen
Matsuoka at kmatsuoka@omb.eop.gov,
FAX (202) 395–6974.
Charles Mierzwa,
RRB Clearance Officer.
[FR Doc. E6–20937 Filed 12–8–06; 8:45 am]
BILLING CODE 7905–01–P
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]]>Agencies
[Federal Register Volume 71, Number 237 (Monday, December 11, 2006)]
[Notices]
[Pages 71593-71596]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-20967]
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NUCLEAR REGULATORY COMMISSION
[EA-06-290]
In the Matter of All Licensees Identified in Attachment 1 to
Order EA-06-289 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 Licensees identified in Attachment 1 \1\ to Order EA-06-289
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 records 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 33,989 (June 13, 2006)], 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 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 person, from any person \3\,
whether or not a Licensee, Applicant, or Certificate Holder of the
Commission or Agreement States.
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\1\ Attachment 1 to Order EA-06-289 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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II
The Commission has broad statutory authority to protect and
prohibit the unauthorized disclosure of SGI. Section 147 of the AEA
grants the Commission explicit authority to issue such Orders as
necessary to prohibit the unauthorized disclosure of SGI. Furthermore,
Section 652 of the EPAct amended Section 149 of the AEA to require
fingerprinting and an FBI identification and criminal history records
check of each individual who seeks access to SGI. In addition, 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-06-289.
In order to provide assurance that the Licensees identified in
Attachment 1 to Order EA-06-289 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 Order EA-06-289 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 order ea-06-289 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 and its
attachment.
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 [71 FR 33,989 (June 13, 2006)], 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.
2. No person may have access to any SGI if the NRC has determined,
based on fingerprinting and an FBI identification and criminal history
[[Page 71594]]
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 Order EA-06-289
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 1 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-06-289. 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 1 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 5 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 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 1 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, 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 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.
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 Federal and State
Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, and 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 1st day of December 2006.
For The Nuclear Regulatory Commission.
Charles L. Miller,
Director, Office of Federal and State Materials and Environmental
Management Programs.
Attachment 1: 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
[[Page 71595]]
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 this Order, 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 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) 415-7404].
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 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.
[[Page 71596]]
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. E6-20967 Filed 12-8-06; 8:45 am]
BILLING CODE 7590-01-P
