In the Matter of Westinghouse Electric Company LLC and All Other Persons Who Seek or Obtain Access to Safeguards Information Described Herein; Order Imposing Safeguards Information Protection Requirements and Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information (Effective Immediately), 33255-33260 [E7-11574]

Download as PDF Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices jlentini on PROD1PC65 with NOTICES ML051080284, ML051080286, ML051080287, ML051080290, ML051080293, ML051080296, ML051080297, ML051080299, ML051080300, ML051080301, ML051080303, ML051080305, ML051080306, ML051080309, ML051080319, ML051080321, ML051080323, ML051080325, ML051080327, ML051080332, ML051080335, ML051080337, ML051080338, ML051080342, ML051080343, ML051080345, ML051080346, ML051080350, ML051080352, ML051080355, ML051080356, ML051080358, ML051080359, ML051080360, ML051080361, ML051080363, ML051080365, ML051080367, ML051080369, ML051080370, ML051080372, ML051080374, ML051080394, ML051080403, ML051080404, ML051080405, and ML051080408]; 10. Letter dated October 5, 2005 [ML070300192]; 11. Letter dated November 29, 2005 [ML053470250] with Addendum A, Data Evaluation Using the Scenario A Null Hypothesis, dated November 30, 2005 [ML053470337]; 12. Oak Ridge Institute for Science and Education (ORISE), Proposed Confirmatory Survey Plan for the Seneca Army Depot Activity (SEDA), Romulus, New York, dated October 27, 2006 [ML070300233]; and 13. ORISE letter dated March 13, 2007 [ML070790088] with ORISE Confirmatory Survey Results for the Seneca Army Depot Activity (SEDA), Romulus, New York, Final Report, February 2007 [ML070790054]; 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 King of Prussia, PA, this day of June 8th, 2007. For the Nuclear Regulatory Commission. James P. Dwyer, Chief, Commercial and R&D Branch, Division of Nuclear Materials Safety, Region 1. [FR Doc. E7–11570 Filed 6–14–07; 8:45 am] BILLING CODE 7590–01–P VerDate Aug<31>2005 19:26 Jun 14, 2007 Jkt 211001 NUCLEAR REGULATORY COMMISSION [EA–07–154; Docket No.: 52–006] In the Matter of Westinghouse Electric Company LLC and All Other Persons Who Seek or Obtain Access to Safeguards Information Described Herein; Order Imposing Safeguards Information Protection Requirements and Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information (Effective Immediately) I Westinghouse Electric Company, LLC (WEC), holds certificates for the AP600 and AP1000 reactor designs issued by the U.S. Nuclear Regulatory Commission (NRC) in accordance with the Atomic Energy Act (AEA) of 1954, as amended. The Commission has decided to require, through rulemaking, that nuclear power plant designers perform a rigorous assessment of design features that could provide additional inherent protection to avoid or mitigate the effects of an aircraft impact, while reducing or eliminating the need for operator actions, where practicable. In anticipation of this requirement, and to assist designers in completing this assessment, the Commission has decided to provide the beyond design basis, large commercial aircraft characteristics specified by the Commission to plant designers who have the need to know and who meet the NRC’s requirements for the disclosure of such information. The specified aircraft characteristics that are the subject of this order are hereby designated as Safeguards Information (SGI),1 in accordance with Section 147 of the AEA. In addition, in a letter dated May 17, 2007, WEC requested authorization to have independent control of SGI. To implement the Commission’s decision to provide this SGI to WEC, and in response to WEC’s May 17 letter, the NRC is issuing this order to WEC to impose requirements for the protection of SGI, as well as for the fingerprinting of all persons who have or seek access to this SGI. 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 1 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. PO 00000 Frm 00065 Fmt 4703 Sfmt 4703 33255 person who is to be permitted to have access to SGI. 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. 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 Westinghouse can obtain and grant access to SGI. This Order also requires compliance with the safeguards protection measures set forth in 10 CFR 73.21 and imposes requirements for access to and protection of SGI by any person,2 whether or not they are a licensee, applicant, or certificate holder of the Commission or an Agreement State. In order to implement this Order, WEC must nominate an individual who will review the results of the FBI criminal history records check to make SGI access determinations. This individual, referred to as the ‘‘reviewing official,’’ must be someone who seeks access to SGI. Based on the results of the FBI criminal history records check, the NRC staff will determine whether this individual may have access to SGI. If the NRC determines that the individual may not be granted access to SGI, the enclosed Order prohibits that individual from obtaining access to any SGI. Once the NRC approves a reviewing official, that reviewing official, and only that reviewing official, can make SGI access determinations for other individuals who have been identified by WEC as having a need-to-know SGI, and who have been fingerprinted and have had a criminal history records check in accordance with this Order. The reviewing official can only make SGI access determinations for other individuals, but cannot approve other individuals to act as reviewing officials. Only the NRC can approve a reviewing official. Therefore, if a WEC wishes to have a new or additional reviewing official, the NRC must approve that 2 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. E:\FR\FM\15JNN1.SGM 15JNN1 33256 Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices individual before they can act in the capacity of a reviewing official. Certain categories of individuals are relieved by rule from the fingerprinting requirements pursuant to 10 CFR 73.59. Those individuals include: Federal, State, and local law enforcement personnel; Agreement State inspectors who conduct security inspections on behalf of the NRC; members of Congress; certain employees of members of Congress or Congressional Committees who have undergone fingerprinting for a prior U.S. government criminal history check; and representatives of the International Atomic Energy Agency or certain foreign government organizations. In addition, individuals who have had a favorably-decided U.S. Government criminal history 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 already been subjected to fingerprinting and criminal history checks, thus, have satisfied the EPAct fingerprinting requirement. II jlentini on PROD1PC65 with NOTICES 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, as discussed above, 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, no person may have access to SGI unless the person has an established need-to-know. To provide assurance that WEC is implementing appropriate measures to a consistent level of protection to prohibit unauthorized disclosure of SGI, and to comply with the fingerprinting and criminal history check requirements for access to SGI, WEC shall implement the requirements for the protection of SGI as set forth in 10 CFR 73.21 and 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 147, 149, 161b, 161i, 161o, 182 and 186 of the AEA of 1954 as amended, and the Commission’s regulations in 10 CFR VerDate Aug<31>2005 19:26 Jun 14, 2007 Jkt 211001 2.202 and 10 CFR part 73, it is hereby ordered, effective immediately, that WEC and all other persons who seek or obtain access to safeguards information as described herein shall comply with the requirements set forth in 10 CFR 73.21 and this order. A. 1. No person may have access to SGI unless that person has a need-toknow the SGI, has been fingerprinted and undergone an 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 the requirement by 10 CFR 73.59 or who has had 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 the latter two (2) cases that the appropriate documentation is made available to WEC’s NRC-approved reviewing official. 2. No person may have access to any SGI if the NRC, when making an SGI access determination for a nominated reviewing official, has determined, based on fingerprinting and an FBI identification and criminal history records check, that the person nominated 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. WEC shall comply with the following requirements: 1. WEC shall, within twenty (20) days of the date of this Order, establish and maintain a fingerprinting program that meets the requirements of 10 CFR 73.21 and the Attachment to this Order. 2. WEC shall, within twenty (20) days of the date of this Order, submit the fingerprints of one (1) individual who: (a) WEC nominates as the ‘‘reviewing official’’ for determining access to SGI by other individuals; and (b) has an established need-to-know the information. 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 WEC’s reviewing official.3 WEC may, at the same time or later, submit the fingerprints of other 3 The NRC’s determination of this individual’s access to SGI in accordance with the process described in Enclosure 3 [available through NRC’s Agencywide Documents Access and Management System (ADAMS)] to the transmittal letter of this Order is an administrative determination that is outside the scope of this Order. PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 individuals to whom WEC seeks to grant access to SGI. Fingerprints shall be submitted and reviewed in accordance with the procedures described in the Attachment to this Order. 3. WEC may allow any individual who currently has access to SGI to continue to have access to previouslydesignated SGI without being fingerprinted, pending a decision by the NRC-approved reviewing official (based on fingerprinting and an FBI criminal history records check) that the individual may continue to have access to SGI. WEC shall make determinations on continued access to SGI within ninety (90) days of the date of this Order, in part on the results of the fingerprinting and criminal history check, for those individuals who were previously granted access to SGI before the issuance of this Order. 4. WEC 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 the Attachment; or (2) if compliance with any of the requirements is unnecessary in its specific circumstances. The notification shall provide WEC’s justification for seeking relief from, or variation of, any specific requirement. WEC’s responses to C.1., C.2., C.3, and C.4, above shall be submitted to the Director, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555. In addition, WEC responses shall be marked as ‘‘Security-Related Information— Withhold Under 10 CFR 2.390.’’ The Director, Office of New Reactors, may, in writing, relax or rescind any of the above conditions upon demonstration of good cause by WEC. IV In accordance with 10 CFR 2.202, WEC must, and any other person adversely affected by this Order may, submit an answer to this Order and may request a hearing with regard to 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 New Reactors, 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 by E:\FR\FM\15JNN1.SGM 15JNN1 jlentini on PROD1PC65 with NOTICES Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices which WEC or other entities adversely affected rely, 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 shall also be sent to the Director, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to the Assistant General Counsel for Materials Litigation and Enforcement at the same address, and to WEC, if the answer or hearing request is by an entity other than WEC. 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 via 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 via e-mail to OGCMailCenter@nrc.gov. If an entity other than WEC requests a hearing, that entity shall set forth, with particularity, the manner in which their 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 WEC, 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), WEC 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 grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error. In the absence of any request for 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. VerDate Aug<31>2005 19:26 Jun 14, 2007 Jkt 211001 Dated this 8th day of June 2007. For the Nuclear Regulatory Commission. R.W. Borchardt, Director, Office of New Reactors. Attachment—Requirements for Fingerprinting and Criminal History Records Checks of Individuals When a Reviewing Official Is Determining Access to Safeguards Information General Requirements Licensees and other persons who are required to conduct fingerprinting shall comply with the requirements of this attachment.4 A. 1. Each licensee subject to the provisions of this attachment shall fingerprint each individual who is seeking or permitted access to Safeguards Information (SGI). The licensee shall review and use the information received from the Federal Bureau of Investigation (FBI) and ensure that the provisions contained in the subject Order and this attachment are satisfied. 2. The licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/ her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the ‘‘Right to Correct and Complete Information’’ section of this attachment. 3. Fingerprints need not be taken if an employed individual (e.g., a licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.59, has a favorably-decided U.S. Government criminal history records check within the last five (5) years, or has an active federal security clearance. Written confirmation from the Agency/ employer which granted the federal security clearance or reviewed the criminal history records check must be provided. The licensee must retain this documentation for a period of three (3) years from the date the individual no longer requires access to SGI associated with the licensee’s activities. 4. All fingerprints obtained by the licensee pursuant to this Order must be submitted to the Commission for transmission to the FBI. 5. The licensee shall review the information received from the FBI and consider it, in conjunction with the trustworthiness and reliability requirements included in Attachment 2 to this Order, in making a determination whether to grant access to SGI to 4 As used herein, ‘‘licensee’’ means any licensee or other person who is required to conduct fingerprinting in accordance with these requirements. PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 33257 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, in compliance with C.2 of the subject Order. 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. 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 SGI, 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 E:\FR\FM\15JNN1.SGM 15JNN1 33258 Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices jlentini on PROD1PC65 with NOTICES 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 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 VerDate Aug<31>2005 19:26 Jun 14, 2007 Jkt 211001 challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (i.e., law enforcement agency) that contributed the questioned information, or direct challenge as to the accuracy or completeness of any entry on the criminal history record to the Assistant Director, Federal Bureau of Investigation, Identification Division, Washington, DC 20537–9700 (as set forth in 28 CFR 16.30 through 16.34). In the latter case, the FBI forwards the challenge to the agency that submitted the data and requests that agency to verify or correct the challenged entry. Upon receipt of an official communication directly from the agency that contributed the original information, the FBI Identification Division makes any changes necessary in accordance with the information supplied by that agency. The licensee must provide at least ten (10) days for an individual to initiate an action challenging the results of an FBI criminal history records check after the record is made available for his/her review. The licensee may make a final SGI access determination based upon the criminal history record only upon receipt of the FBI’s ultimate confirmation or correction of the record. Upon a final adverse determination on access to SGI, the licensee shall provide the individual its documented basis for denial. Access to SGI shall not be granted to an individual during the review process. Protection of Information 1. Each licensee who obtains a criminal history record on an individual pursuant to this Order shall establish and maintain a system of files and procedures for protecting the record and the personal information from unauthorized disclosure. 2. The licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining access to Safeguards Information. No individual authorized to have access to the information may re-disseminate the information to any other individual who does not have a need-to-know. 3. The personal information obtained on an individual from a criminal history record check may be transferred to another licensee if the licensee holding the criminal history record check receives the individual’s written request to re-disseminate the information contained in his/her file, and the PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 current 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. Guidance for Evaluation of Access to Safeguards Information With the Inclusion of Criminal History Records (Fingerprint) Checks When a licensee or other person 5 submits fingerprints to the Nuclear Regulatory Commission (NRC) pursuant to an NRC Order, it will receive a criminal history summary of information, provided in federal records, since the individual’s eighteenth birthday. Individuals retain the right to correct and complete information and to initiate challenge procedures described in Enclosure 3. The licensee will receive the information from the criminal history records check for those individuals requiring access to Safeguards Information (SGI), and the reviewing official will evaluate that information using the guidance below. Furthermore, the requirements of all Orders, which apply to the information and material to which access is being granted, must be met. The licensee’s reviewing official is required to evaluate all pertinent and available information in making a determination of access to SGI, including the criminal history information pertaining to the individual as required by the NRC Order. The criminal history records check is used when determining whether an individual has a record of criminal activity that indicates that the individual should not have access to SGI. Each determination of access to SGI, which includes a review of criminal history information, must be 5 As used herein, ‘‘licensee’’ means any licensee or other person who is required to conduct fingerprinting. E:\FR\FM\15JNN1.SGM 15JNN1 Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices documented to include the basis for the decision that is made. (i) If negative information is discovered that was not provided by the individual, or which is different in any material respect from the information provided by the individual, this information should be considered, and decisions made based on these findings, must be documented. (ii) Any record containing a pattern of behaviors which indicates that the behaviors could be expected to recur or continue, or recent behaviors which cast questions on whether an individual should have access to SGI, should be carefully evaluated prior to any authorization of access to SGI. It is necessary for a licensee to resubmit fingerprints only under two conditions: (1) The FBI has determined that the fingerprints cannot be classified due to poor quality in the mechanics of taking the initial impressions; or (2) The initial submission has been lost. If the FBI advises that six sets of fingerprints are unclassifiable based on conditions other than poor quality, the licensee may submit a request to the NRC for alternatives. When those search results are received from the FBI, no further search is necessary. Process To Challenge NRC Denials or Revocations of Access to Safeguards Information 1. Policy This policy establishes a process for individuals whom the Nuclear Regulatory Commission (NRC) licensees or other persons 6 nominate as reviewing officials to challenge and appeal NRC denials or revocations of access to Safeguards Information (SGI). Any individual nominated as a licensee reviewing official whom the NRC has determined may not have access to SGI shall, to the extent provided below, be afforded an opportunity to challenge and appeal the NRC’s determination. This policy shall not be construed to require the disclosure of SGI to any person, nor shall it be construed to create a liberty or property interest of any kind in the access of any individual to SGI. jlentini on PROD1PC65 with NOTICES 2. Applicability This policy applies solely to those employees of licensees who are nominated as a reviewing official, and who are thus considered, by the NRC, 6 As used herein, ‘‘licensee’’ means any licensee or other person who is required to conduct fingerprinting. VerDate Aug<31>2005 19:26 Jun 14, 2007 Jkt 211001 for initial or continued access to SGI in that position. 3. SGI Access Determination Criteria Determinations for granting a nominated reviewing official access to SGI will be made by the NRC staff. Access to SGI shall be denied or revoked whenever it is determined that an individual does not meet the applicable standards. Any doubt about an individual’s eligibility for initial or continued access to SGI shall be resolved in favor of the national security and access will be denied or revoked. 4. Procedures To Challenge the Contents of Records Obtained From the FBI a. Prior to a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall: (i) Be provided the contents of records obtained from the FBI for the purpose of assuring correct and complete information. 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 will forward the challenge to the agency that submitted the data and request 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 necessary changes in accordance with the information supplied by that agency. (ii) Be afforded ten (10) days to initiate an action challenging the results of an FBI criminal history records check (described in (I), above) after the record is made available for the individual’s review. If such a challenge is initiated, the NRC Facilities Security Branch Chief may make a determination based upon the criminal history record only upon receipt of the FBI’s ultimate confirmation or correction of the record. PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 33259 5. Procedures To Provide Additional Information a. Prior to a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall: (i) Be afforded an opportunity to submit information relevant to the individual’s trustworthiness and reliability. The NRC Facilities Security Branch Chief shall, in writing, notify the individual of this opportunity, and any deadlines for submitting this information. The NRC Facilities Security Branch Chief may make a determination of access to SGI only upon receipt of the additional information submitted by the individual, or, if no such information is submitted, when the deadline to submit such information has passed. 6. Procedures To Notify an Individual of the NRC Facilities Security Branch Chief Determination To Deny or Revoke Access to SGI a. Upon a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall be provided a written explanation of the basis for this determination. 7. Procedures To Appeal an NRC Determination To Deny or Revoke Access to SGI. a. Upon a determination by the NRC Facilities Security Branch Chief that an individual nominated as a reviewing official is denied or revoked access to SGI, the individual shall be afforded an opportunity to appeal this determination to the Director, Division of Facilities and Security. The determination must be appealed within twenty (20) days of receipt of the written notice of the determination by the Facilities Security Branch Chief, and may either be in writing or in person. Any appeal made in person shall take place at the NRC’s headquarters, and shall be at the individual’s own expense. The determination by the Director, Division of Facilities and Security, shall be rendered within sixty (60) days after receipt of the appeal. 8. Procedures To Notify an Individual of the Determination by the Director, Division of Facilities and Security, Upon an Appeal a. A determination by the Director, Division of Facilities and Security, shall be provided to the individual in writing, and include an explanation of the basis for this determination. A determination by the Director, Division of Facilities E:\FR\FM\15JNN1.SGM 15JNN1 33260 Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / Notices and Security, to affirm the Facilities Branch Chief’s determination to deny or revoke an individual’s access to SGI is final and not subject to further administrative appeals. [FR Doc. E7–11574 Filed 6–14–07; 8:45 am] BILLING CODE 7590–01–P PENSION BENEFIT GUARANTY CORPORATION Submission of Information Collection for OMB Review; Comment Request; Procedures for Implementing Multiemployer Plan Elections Pension Benefit Guaranty Corporation. ACTION: Notice of request for OMB approval. jlentini on PROD1PC65 with NOTICES AGENCY: SUMMARY: The Pension Benefit Guaranty Corporation (PBGC) is requesting that the Office of Management and Budget (OMB) approve, under the Paperwork Reduction Act, a collection of information under its procedures on multiemployer plan elections. This notice informs the public of the PBGC’s request and solicits public comment on the collection of information. DATES: Comments should be submitted by July 16, 2007. ADDRESSES: Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at OIRA_DOCKET@omb.eop.gov or by fax to (202) 395–6974. Copies of the request for approval (including the procedures) may be obtained without charge by writing to the Disclosure Division of the Office of the General Counsel of PBGC at the above address, visiting the Disclosure Division, faxing a request to 202–326– 4042, or calling 202–326–4040 during normal business hours. (TTY and TDD users may call the Federal relay service toll-free at 1–800–877–8339 and ask to be connected to 202–326–4040.) The Disclosure Division will e-mail, fax, or mail the request to you, as you request. FOR FURTHER INFORMATION CONTACT: Constance Markakis, Attorney, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005–4026, 202–326–4000, ext. 6779. (For TTY and TDD, call 800–877–8339 and request connection to 202–326– 4000, ext. 6779.) SUPPLEMENTARY INFORMATION: Section 1106 of the Pension Protection Act of 2006 (Pub. L. 109–280) (‘‘PPA 2006’’), as VerDate Aug<31>2005 19:26 Jun 14, 2007 Jkt 211001 modified by Public Law 110–028, amends the definition of a ‘‘multiemployer plan’’ in Title I of ERISA and the Internal Revenue Code of 1986 to allow certain plans to elect to be multiemployer plans pursuant to procedures prescribed by PBGC. A plan is eligible for the election if it is (1) a plan revoking a previous election to remain a single-employer plan under section 3(37)(E) of ERISA, or (2) a plan with respect to which substantially all employer contributions were made by tax-exempt employers. In either case, for three prior plan years, the plan must have been a plan to which more than one employer was required to contribute that was maintained pursuant to one or more collective bargaining agreements. PPA 2006 also imposes other requirements for an election, and provides certain exemptions from the requirements. All elections must be made by August 17, 2007. PBGC procedures for implementing these multiemployer plan elections require a plan to submit specified information to PBGC to demonstrate that it meets the statutory eligibility requirements. On April 13, 2007 (72 FR 18692), PBGC published a notice informing the public that it intended to request OMB approval of the procedures and soliciting public comment. PBGC received four comments on the procedures (posted on PBGC’s Web site at http://www.pbgc.gov/docs/ ppa1106.pdf). PBGC has revised the procedures, taking into account these comments and the statutory changes in Public Law 110–028. The PBGC is requesting that OMB approve this collection of information for three years. (Although plans must make an election by August 17, 2007, PBGC may request additional information, after that date, that is needed to review the election.) An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The PBGC estimates that approximately 35 plans will respond to this collection of information. The PBGC further estimates that the average burden of this collection of information will be 2.5 hours and $1,875 per plan, with an average total burden of 87.5 hours and $65,625. PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 Issued in Washington, DC, this 13th day of June, 2007. John H. Hanley, Director, Legislative and Regulatory Department Pension Benefit Guaranty Corporation. [FR Doc. E7–11691 Filed 6–14–07; 8:45 am] BILLING CODE 7709–01–P PENSION BENEFIT GUARANTY CORPORATION Required Interest Rate Assumption for Determining Variable-Rate Premium for Single-Employer Plans; Interest Assumptions for Multiemployer Plan Valuations Following Mass Withdrawal Pension Benefit Guaranty Corporation. ACTION: Notice of interest rates and assumptions. AGENCY: SUMMARY: This notice informs the public of the interest rates and assumptions to be used under certain Pension Benefit Guaranty Corporation regulations. These rates and assumptions are published elsewhere (or can be derived from rates published elsewhere), but are collected and published in this notice for the convenience of the public. Interest rates are also published on the PBGC’s Web site (http://www.pbgc.gov). DATES: The required interest rate for determining the variable-rate premium under part 4006 applies to premium payment years beginning in June 2007. The interest assumptions for performing multiemployer plan valuations following mass withdrawal under part 4281 apply to valuation dates occurring in July 2007. FOR FURTHER INFORMATION CONTACT: Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington, DC 20005, 202–326– 4024. (TTY/TDD users may call the Federal relay service toll-free at 1–800– 877–8339 and ask to be connected to 202–326–4024.) SUPPLEMENTARY INFORMATION: Variable-Rate Premiums Section 4006(a)(3)(E)(iii)(II) of the Employee Retirement Income Security Act of 1974 (ERISA) and § 4006.4(b)(1) of the PBGC’s regulation on Premium Rates (29 CFR part 4006) prescribe use of an assumed interest rate (the ‘‘required interest rate’’) in determining a single-employer plan’s variable-rate premium. Pursuant to the Pension Protection Act of 2006, for premium payment years beginning in 2006 or 2007, the required interest rate is the E:\FR\FM\15JNN1.SGM 15JNN1

Agencies

[Federal Register Volume 72, Number 115 (Friday, June 15, 2007)]
[Notices]
[Pages 33255-33260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11574]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[EA-07-154; Docket No.: 52-006]


In the Matter of Westinghouse Electric Company LLC and All Other 
Persons Who Seek or Obtain Access to Safeguards Information Described 
Herein; Order Imposing Safeguards Information Protection Requirements 
and Fingerprinting and Criminal History Records Check Requirements for 
Access to Safeguards Information (Effective Immediately)

I

    Westinghouse Electric Company, LLC (WEC), holds certificates for 
the AP600 and AP1000 reactor designs issued by the U.S. Nuclear 
Regulatory Commission (NRC) in accordance with the Atomic Energy Act 
(AEA) of 1954, as amended.
    The Commission has decided to require, through rulemaking, that 
nuclear power plant designers perform a rigorous assessment of design 
features that could provide additional inherent protection to avoid or 
mitigate the effects of an aircraft impact, while reducing or 
eliminating the need for operator actions, where practicable. In 
anticipation of this requirement, and to assist designers in completing 
this assessment, the Commission has decided to provide the beyond 
design basis, large commercial aircraft characteristics specified by 
the Commission to plant designers who have the need to know and who 
meet the NRC's requirements for the disclosure of such information. The 
specified aircraft characteristics that are the subject of this order 
are hereby designated as Safeguards Information (SGI),\1\ in accordance 
with Section 147 of the AEA. In addition, in a letter dated May 17, 
2007, WEC requested authorization to have independent control of SGI. 
To implement the Commission's decision to provide this SGI to WEC, and 
in response to WEC's May 17 letter, the NRC is issuing this order to 
WEC to impose requirements for the protection of SGI, as well as for 
the fingerprinting of all persons who have or seek access to this SGI.
---------------------------------------------------------------------------

    \1\ 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.
---------------------------------------------------------------------------

    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 SGI. 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. 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 
Westinghouse can obtain and grant access to SGI. This Order also 
requires compliance with the safeguards protection measures set forth 
in 10 CFR 73.21 and imposes requirements for access to and protection 
of SGI by any person,\2\ whether or not they are a licensee, applicant, 
or certificate holder of the Commission or an Agreement State.
---------------------------------------------------------------------------

    \2\ 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.
---------------------------------------------------------------------------

    In order to implement this Order, WEC must nominate an individual 
who will review the results of the FBI criminal history records check 
to make SGI access determinations. This individual, referred to as the 
``reviewing official,'' must be someone who seeks access to SGI. Based 
on the results of the FBI criminal history records check, the NRC staff 
will determine whether this individual may have access to SGI. If the 
NRC determines that the individual may not be granted access to SGI, 
the enclosed Order prohibits that individual from obtaining access to 
any SGI. Once the NRC approves a reviewing official, that reviewing 
official, and only that reviewing official, can make SGI access 
determinations for other individuals who have been identified by WEC as 
having a need-to-know SGI, and who have been fingerprinted and have had 
a criminal history records check in accordance with this Order. The 
reviewing official can only make SGI access determinations for other 
individuals, but cannot approve other individuals to act as reviewing 
officials. Only the NRC can approve a reviewing official. Therefore, if 
a WEC wishes to have a new or additional reviewing official, the NRC 
must approve that

[[Page 33256]]

individual before they can act in the capacity of a reviewing official.
    Certain categories of individuals are relieved by rule from the 
fingerprinting requirements pursuant to 10 CFR 73.59. Those individuals 
include: Federal, State, and local law enforcement personnel; Agreement 
State inspectors who conduct security inspections on behalf of the NRC; 
members of Congress; certain employees of members of Congress or 
Congressional Committees who have undergone fingerprinting for a prior 
U.S. government criminal history check; and representatives of the 
International Atomic Energy Agency or certain foreign government 
organizations. In addition, individuals who have had a favorably-
decided U.S. Government criminal history 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 already been subjected to fingerprinting and 
criminal history checks, thus, have satisfied the EPAct fingerprinting 
requirement.

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, 
as discussed above, 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, no person may have access to SGI unless the person has an 
established need-to-know.
    To provide assurance that WEC is implementing appropriate measures 
to a consistent level of protection to prohibit unauthorized disclosure 
of SGI, and to comply with the fingerprinting and criminal history 
check requirements for access to SGI, WEC shall implement the 
requirements for the protection of SGI as set forth in 10 CFR 73.21 and 
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 147, 149, 161b, 161i, 161o, 182 
and 186 of the AEA of 1954 as amended, and the Commission's regulations 
in 10 CFR 2.202 and 10 CFR part 73, it is hereby ordered, effective 
immediately, that WEC and all other persons who seek or obtain access 
to safeguards information as described herein shall comply with the 
requirements set forth in 10 CFR 73.21 and this order.
    A. 1. No person may have access to SGI unless that person has a 
need-to-know the SGI, has been fingerprinted and undergone an 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 the requirement by 10 CFR 
73.59 or who has had 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 the latter two (2) cases that 
the appropriate documentation is made available to WEC's NRC-approved 
reviewing official.
    2. No person may have access to any SGI if the NRC, when making an 
SGI access determination for a nominated reviewing official, has 
determined, based on fingerprinting and an FBI identification and 
criminal history records check, that the person nominated 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. WEC shall comply with the following requirements:
    1. WEC shall, within twenty (20) days of the date of this Order, 
establish and maintain a fingerprinting program that meets the 
requirements of 10 CFR 73.21 and the Attachment to this Order.
    2. WEC shall, within twenty (20) days of the date of this Order, 
submit the fingerprints of one (1) individual who: (a) WEC nominates as 
the ``reviewing official'' for determining access to SGI by other 
individuals; and (b) has an established need-to-know the information. 
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 WEC's reviewing official.\3\ WEC may, at the same 
time or later, submit the fingerprints of other individuals to whom WEC 
seeks to grant access to SGI. Fingerprints shall be submitted and 
reviewed in accordance with the procedures described in the Attachment 
to this Order.
---------------------------------------------------------------------------

    \3\ The NRC's determination of this individual's access to SGI 
in accordance with the process described in Enclosure 3 [available 
through NRC's Agencywide Documents Access and Management System 
(ADAMS)] to the transmittal letter of this Order is an 
administrative determination that is outside the scope of this 
Order.
---------------------------------------------------------------------------

    3. WEC may allow any individual who currently has access to SGI to 
continue to have access to previously-designated SGI without being 
fingerprinted, pending a decision by the NRC-approved reviewing 
official (based on fingerprinting and an FBI criminal history records 
check) that the individual may continue to have access to SGI. WEC 
shall make determinations on continued access to SGI within ninety (90) 
days of the date of this Order, in part on the results of the 
fingerprinting and criminal history check, for those individuals who 
were previously granted access to SGI before the issuance of this 
Order.
    4. WEC 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 the 
Attachment; or (2) if compliance with any of the requirements is 
unnecessary in its specific circumstances. The notification shall 
provide WEC's justification for seeking relief from, or variation of, 
any specific requirement.
    WEC's responses to C.1., C.2., C.3, and C.4, above shall be 
submitted to the Director, Office of New Reactors, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555. In addition, WEC responses 
shall be marked as ``Security-Related Information--Withhold Under 10 
CFR 2.390.''
    The Director, Office of New Reactors, may, in writing, relax or 
rescind any of the above conditions upon demonstration of good cause by 
WEC.

IV

    In accordance with 10 CFR 2.202, WEC must, and any other person 
adversely affected by this Order may, submit an answer to this Order 
and may request a hearing with regard to 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 New 
Reactors, 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 by

[[Page 33257]]

which WEC or other entities adversely affected rely, 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 shall also be sent to the Director, 
Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555, to the Assistant General Counsel for Materials Litigation and 
Enforcement at the same address, and to WEC, if the answer or hearing 
request is by an entity other than WEC. 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 via 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 via e-mail to OGCMailCenter@nrc.gov. If an entity 
other than WEC requests a hearing, that entity shall set forth, with 
particularity, the manner in which their 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 WEC, 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), WEC 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 grounds that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence, but on mere 
suspicion, unfounded allegations, or error. In the absence of any 
request for 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 8th day of June 2007.

    For the Nuclear Regulatory Commission.
R.W. Borchardt,
 Director, Office of New Reactors.

Attachment--Requirements for Fingerprinting and Criminal History 
Records Checks of Individuals When a Reviewing Official Is Determining 
Access to Safeguards Information

General Requirements

    Licensees and other persons who are required to conduct 
fingerprinting shall comply with the requirements of this 
attachment.\4\
---------------------------------------------------------------------------

    \4\ As used herein, ``licensee'' means any licensee or other 
person who is required to conduct fingerprinting in accordance with 
these requirements.
---------------------------------------------------------------------------

    A. 1. Each licensee subject to the provisions of this attachment 
shall fingerprint each individual who is seeking or permitted access to 
Safeguards Information (SGI). The licensee shall review and use the 
information received from the Federal Bureau of Investigation (FBI) and 
ensure that the provisions contained in the subject Order and this 
attachment are satisfied.
    2. The licensee shall notify each affected individual that the 
fingerprints will be used to secure a review of his/her criminal 
history record and inform the individual of the procedures for revising 
the record or including an explanation in the record, as specified in 
the ``Right to Correct and Complete Information'' section of this 
attachment.
    3. Fingerprints need not be taken if an employed individual (e.g., 
a licensee employee, contractor, manufacturer, or supplier) is relieved 
from the fingerprinting requirement by 10 CFR 73.59, has a favorably-
decided U.S. Government criminal history records check within the last 
five (5) years, or has an active federal security clearance. Written 
confirmation from the Agency/employer which granted the federal 
security clearance or reviewed the criminal history records check must 
be provided. The licensee must retain this documentation for a period 
of three (3) years from the date the individual no longer requires 
access to SGI associated with the licensee's activities.
    4. All fingerprints obtained by the licensee pursuant to this Order 
must be submitted to the Commission for transmission to the FBI.
    5. The licensee shall review the information received from the FBI 
and consider it, in conjunction with the trustworthiness and 
reliability requirements included in Attachment 2 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, in compliance with C.2 of the subject Order. 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 SGI, 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

[[Page 33258]]

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.

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 current 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.

Guidance for Evaluation of Access to Safeguards Information With the 
Inclusion of Criminal History Records (Fingerprint) Checks

    When a licensee or other person \5\ submits fingerprints to the 
Nuclear Regulatory Commission (NRC) pursuant to an NRC Order, it will 
receive a criminal history summary of information, provided in federal 
records, since the individual's eighteenth birthday. Individuals retain 
the right to correct and complete information and to initiate challenge 
procedures described in Enclosure 3. The licensee will receive the 
information from the criminal history records check for those 
individuals requiring access to Safeguards Information (SGI), and the 
reviewing official will evaluate that information using the guidance 
below. Furthermore, the requirements of all Orders, which apply to the 
information and material to which access is being granted, must be met.
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    \5\ As used herein, ``licensee'' means any licensee or other 
person who is required to conduct fingerprinting.
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    The licensee's reviewing official is required to evaluate all 
pertinent and available information in making a determination of access 
to SGI, including the criminal history information pertaining to the 
individual as required by the NRC Order. The criminal history records 
check is used when determining whether an individual has a record of 
criminal activity that indicates that the individual should not have 
access to SGI. Each determination of access to SGI, which includes a 
review of criminal history information, must be

[[Page 33259]]

documented to include the basis for the decision that is made.
    (i) If negative information is discovered that was not provided by 
the individual, or which is different in any material respect from the 
information provided by the individual, this information should be 
considered, and decisions made based on these findings, must be 
documented.
    (ii) Any record containing a pattern of behaviors which indicates 
that the behaviors could be expected to recur or continue, or recent 
behaviors which cast questions on whether an individual should have 
access to SGI, should be carefully evaluated prior to any authorization 
of access to SGI.
    It is necessary for a licensee to resubmit fingerprints only under 
two conditions:
    (1) The FBI has determined that the fingerprints cannot be 
classified due to poor quality in the mechanics of taking the initial 
impressions; or
    (2) The initial submission has been lost.
    If the FBI advises that six sets of fingerprints are unclassifiable 
based on conditions other than poor quality, the licensee may submit a 
request to the NRC for alternatives. When those search results are 
received from the FBI, no further search is necessary.

Process To Challenge NRC Denials or Revocations of Access to Safeguards 
Information

1. Policy

    This policy establishes a process for individuals whom the Nuclear 
Regulatory Commission (NRC) licensees or other persons \6\ nominate as 
reviewing officials to challenge and appeal NRC denials or revocations 
of access to Safeguards Information (SGI). Any individual nominated as 
a licensee reviewing official whom the NRC has determined may not have 
access to SGI shall, to the extent provided below, be afforded an 
opportunity to challenge and appeal the NRC's determination. This 
policy shall not be construed to require the disclosure of SGI to any 
person, nor shall it be construed to create a liberty or property 
interest of any kind in the access of any individual to SGI.
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    \6\ As used herein, ``licensee'' means any licensee or other 
person who is required to conduct fingerprinting.
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2. Applicability

    This policy applies solely to those employees of licensees who are 
nominated as a reviewing official, and who are thus considered, by the 
NRC, for initial or continued access to SGI in that position.

3. SGI Access Determination Criteria

    Determinations for granting a nominated reviewing official access 
to SGI will be made by the NRC staff. Access to SGI shall be denied or 
revoked whenever it is determined that an individual does not meet the 
applicable standards. Any doubt about an individual's eligibility for 
initial or continued access to SGI shall be resolved in favor of the 
national security and access will be denied or revoked.

4. Procedures To Challenge the Contents of Records Obtained From the 
FBI

    a. Prior to a determination by the NRC Facilities Security Branch 
Chief that an individual nominated as a reviewing official is denied or 
revoked access to SGI, the individual shall:
    (i) Be provided the contents of records obtained from the FBI for 
the purpose of assuring correct and complete information. 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 will forward the challenge 
to the agency that submitted the data and request 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 necessary 
changes in accordance with the information supplied by that agency.
    (ii) Be afforded ten (10) days to initiate an action challenging 
the results of an FBI criminal history records check (described in (I), 
above) after the record is made available for the individual's review. 
If such a challenge is initiated, the NRC Facilities Security Branch 
Chief may make a determination based upon the criminal history record 
only upon receipt of the FBI's ultimate confirmation or correction of 
the record.

5. Procedures To Provide Additional Information

    a. Prior to a determination by the NRC Facilities Security Branch 
Chief that an individual nominated as a reviewing official is denied or 
revoked access to SGI, the individual shall:
    (i) Be afforded an opportunity to submit information relevant to 
the individual's trustworthiness and reliability. The NRC Facilities 
Security Branch Chief shall, in writing, notify the individual of this 
opportunity, and any deadlines for submitting this information. The NRC 
Facilities Security Branch Chief may make a determination of access to 
SGI only upon receipt of the additional information submitted by the 
individual, or, if no such information is submitted, when the deadline 
to submit such information has passed.

6. Procedures To Notify an Individual of the NRC Facilities Security 
Branch Chief Determination To Deny or Revoke Access to SGI

    a. Upon a determination by the NRC Facilities Security Branch Chief 
that an individual nominated as a reviewing official is denied or 
revoked access to SGI, the individual shall be provided a written 
explanation of the basis for this determination.

7. Procedures To Appeal an NRC Determination To Deny or Revoke Access 
to SGI.

    a. Upon a determination by the NRC Facilities Security Branch Chief 
that an individual nominated as a reviewing official is denied or 
revoked access to SGI, the individual shall be afforded an opportunity 
to appeal this determination to the Director, Division of Facilities 
and Security. The determination must be appealed within twenty (20) 
days of receipt of the written notice of the determination by the 
Facilities Security Branch Chief, and may either be in writing or in 
person. Any appeal made in person shall take place at the NRC's 
headquarters, and shall be at the individual's own expense. The 
determination by the Director, Division of Facilities and Security, 
shall be rendered within sixty (60) days after receipt of the appeal.

8. Procedures To Notify an Individual of the Determination by the 
Director, Division of Facilities and Security, Upon an Appeal

    a. A determination by the Director, Division of Facilities and 
Security, shall be provided to the individual in writing, and include 
an explanation of the basis for this determination. A determination by 
the Director, Division of Facilities

[[Page 33260]]

and Security, to affirm the Facilities Branch Chief's determination to 
deny or revoke an individual's access to SGI is final and not subject 
to further administrative appeals.

 [FR Doc. E7-11574 Filed 6-14-07; 8:45 am]
BILLING CODE 7590-01-P