In the Matter of Licensee Identified in Attachment 1 and all Other Persons Who Seek or Obtain Access to Safeguards Information Described Herein; Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information (Effective Immediately), 65210-65215 [2012-26292]

Download as PDF erowe on DSK2VPTVN1PROD with 65210 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices plug-in, is available on the NRC’s public Web site at https://www.nrc.gov/sitehelp/e-submittals.html. Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at https://www.nrc.gov/site-help/esubmittals.html. A filing is considered complete at the time the documents are submitted through the NRC’s E-Filing system. To be timely, an electronic filing must be submitted to the E-Filing system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an email notice confirming receipt of the document. The E-Filing system also distributes an email notice that provides access to the document to the NRC’s Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/ petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically using the agency’s adjudicatory E-Filing system may seek assistance by contacting the NRC’s Meta System Help Desk through the ‘‘Contact Us’’ link located on the NRC’s public Web site at https://www.nrc.gov/site-help/esubmittals.html, by email at MSHD.Resource@nrc.gov, or by a tollfree call at 1–866–672–7640. The NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays. Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, VerDate Mar<15>2010 12:06 Oct 24, 2012 Jkt 229001 Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by firstclass mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists. Documents submitted in adjudicatory proceedings will appear in NRC’s electronic hearing docket which is available to the public at https:// ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the Commission, or the presiding officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings, unless an NRC regulation or other law requires submission of such information. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission. IV. Opportunity To Provide Written Comments Within 30 days from the date of publication of this notice, persons may submit written comments regarding the CA transfer application, as provided for in 10 CFR 2.1305. The NRC will consider and, if appropriate, respond to these comments, but such comments will not otherwise constitute part of the decisional record. Comments should be submitted to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, and should cite the publication date and page number of this Federal Register notice. Comments received after 30 days will be considered if practicable to do so, but only those comments received on or before the due date can be assured consideration. For further details with respect to this CA transfer application, see the application dated August 30, 2012. Publicly-available records will be accessible electronically from the PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 Agency Wide Documents Access and Management System’s (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site https://www.nrc.gov/ reading-rm/adams.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR Reference staff by telephone at 1–800–397–4209, or 301– 415–4737 or by email to pdr.resource@nrc.gov. Dated at Rockville, Maryland, this 17th day of October, 2012. For the Nuclear Regulatory Commission. David H. Tiktinsky, Senior Project Manager, Mixed Oxide and Deconversion Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards. [FR Doc. 2012–26300 Filed 10–24–12; 8:45 am] BILLING CODE 7590–01–P NUCLEAR REGULATORY COMMISSION [NRC–2012–0255; EA–12–148] In the Matter of Licensee Identified in Attachment 1 and all Other Persons Who Seek or Obtain Access to Safeguards Information Described Herein; Order Imposing Fingerprinting and Criminal History Records Check Requirements for Access to Safeguards Information (Effective Immediately) I The Licensee identified in Attachment 11 to this Order, holds a license issued in accordance with the Atomic Energy Act (AEA) of 1954, as amended, by the U.S. Nuclear Regulatory Commission (NRC or the Commission), authorizing them to engage in an activity subject to regulation by the Commission or Agreement States. In accordance with Section 149 of the AEA, fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check are required of any person who is to be permitted to have access to Safeguards Information (SGI).2 The AEA permits the Commission by rule to except certain categories of individuals from the fingerprinting requirement, which the Commission has done (see 10 CFR 73.59, 71 FR 33989; June 13, 2006). Individuals relieved from fingerprinting and criminal history records checks 1 Attachment 1 contains sensitive information and will not be released to the public. 2 Safeguards Information is a form of sensitive, unclassified, security-related information that the Commission has the authority to designate and protect under section 147 of the AEA. E:\FR\FM\25OCN1.SGM 25OCN1 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices under the relief rule include Federal, State, and local officials and law enforcement personnel; Agreement State inspectors who conduct security inspections on behalf of the NRC; members of Congress and certain employees of members of Congress or Congressional Committees, and representatives of the International Atomic Energy Agency (IAEA) or certain foreign government organizations. In addition, individuals who have a favorably-decided U.S. Government criminal history records check within the last five (5) years, or individuals who have active Federal security clearances (provided in either case that they make available the appropriate documentation), have satisfied the AEA fingerprinting requirement and need not be fingerprinted again. Therefore, in accordance with Section 149 of the AEA the Commission is imposing additional requirements for access to SGI, as set forth by this Order, so that affected licensees can obtain and grant access to SGI. This Order also imposes requirements for access to SGI by any person, from any person,3 whether or not a Licensee, Applicant, or Certificate Holder of the Commission or Agreement States. II erowe on DSK2VPTVN1PROD with The Commission has broad statutory authority to protect and prohibit the unauthorized disclosure of SGI. Section 147 of the AEA grants the Commission explicit authority to issue such Orders as necessary to prohibit the unauthorized disclosure of SGI. Furthermore, Section 149 of the AEA requires fingerprinting and an FBI identification and a criminal history records check of each individual who seeks access to SGI. In addition, no person may have access to SGI unless the person has an established need-toknow the information and satisfies the trustworthy and reliability requirements described in Attachment 3 to Order EA– 12–147. In order to provide assurance that the Licensee identified in Attachment 1 to this Order is implementing appropriate measures to comply with the 3 Person means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the Department of Energy, except that the Department of Energy shall be considered a person with respect to those facilities of the Department of Energy specified in section 202 of the Energy Reorganization Act of 1974 (88 Stat. 1244), any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing. VerDate Mar<15>2010 12:06 Oct 24, 2012 Jkt 229001 fingerprinting and criminal history records check requirements for access to SGI, the Licensee identified in Attachment 1 to this Order shall implement the requirements of this Order. In addition, pursuant to 10 CFR 2.202, I find that in light of the common defense and security matters identified above, which warrant the issuance of this Order, the public health, safety and interest require that this Order be effective immediately. III Accordingly, pursuant to Sections 81, 147, 149, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission’s regulations in 10 CFR 2.202, 10 CFR Parts 30 and 73, it is hereby ordered, effective immediately, that the licensee identified in attachment 1 to this order and all other persons who seek or obtain access to safeguards information, as described above, shall comply with the requirements set forth in this order. A. 1. No person may have access to SGI unless that person has a need-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 Fed. Reg. 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 described in paragraph III.C.2 of this Order. 2. No person may have access to any SGI if the NRC has determined, based on fingerprinting and an FBI identification and criminal history records check, that the person may not have access to SGI. B. No person may provide SGI to any other person except in accordance with Condition III.A. above. Prior to providing SGI to any person, a copy of this Order shall be provided to that person. C. The Licensee identified in Attachment 1 to this Order shall comply with the following requirements: 1. The Licensee shall, within twenty (20) days of the date of this Order, establish and maintain a fingerprinting program that meets the requirements of Attachment 2 to this Order. PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 65211 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–12–147. 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 or designate an additional reviewing official(s). Fingerprints shall be submitted and reviewed in accordance with the procedures described in Attachment 2 of this Order. 3. The Licensee shall, in writing, within twenty (20) days of the date of this Order, notify the Commission, (1) if it is unable to comply with any of the requirements described in this Order, including Attachment 2 to this Order, or (2) if compliance with any of the requirements is unnecessary in its specific circumstances. The notification shall provide the Licensee’s justification for seeking relief from or variation of any specific requirement. Licensee responses to C.1., C.2., and C.3. above shall be submitted to the Director, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555. In addition, Licensee responses shall be marked as ‘‘SecurityRelated Information—Withhold Under 10 CFR 2.390.’’ The Director, Office of Federal and State Materials and Environmental Management Programs, may, in writing, relax or rescind any of the above conditions upon demonstration of good cause by the Licensee. IV In accordance with 10 CFR 2.202, the Licensee must, and any other person adversely affected by this Order may, submit an answer to this Order within twenty (20) days of the date of this Order. In addition, the Licensee and any other person adversely affected by this Order may request a hearing of this Order within twenty (20) days of the 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. E:\FR\FM\25OCN1.SGM 25OCN1 erowe on DSK2VPTVN1PROD with 65212 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices date of the Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be made, in writing, to the Director, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, and include a statement of good cause for the extension. The answer may consent to this Order. If the answer includes a request for a hearing, it shall, under oath or affirmation, specifically set forth the matters of fact and law on which the Licensee relies and the reasons as to why the Order should not have been issued. If a person other than the Licensee requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d). All documents filed in the NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC’s E-Filing rule (72 FR 49139; August 28, 2007). The EFiling process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below. To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at hearing.docket@nrc.gov, or by telephone at 301–415–1677, to request (1) a digital identification (ID) certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and (2) advise the Secretary that the participant will be submitting a request or petition for hearing (even in instances in which the participant, or its counsel or representative, already holds an NRCissued digital ID certificate). Based upon this information, the Secretary will establish an electronic docket for the hearing in this proceeding if the VerDate Mar<15>2010 12:06 Oct 24, 2012 Jkt 229001 Secretary has not already established an electronic docket. Information about applying for a digital ID certificate is available on the NRC’s public Web site at https:// www.nrc.gov/site-help/e-submittals/ apply-certificates.html. System requirements for accessing the ESubmittal server are detailed in the NRC’s ‘‘Guidance for Electronic Submission,’’ which is available on the NRC’s public Web site at https:// www.nrc.gov/site-help/esubmittals.html. Participants may attempt to use other software not listed on the Web site, but should note that the NRC’s E-Filing system does not support unlisted software, and the NRC Meta System Help Desk will not be able to offer assistance in using unlisted software. If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC’s online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC’s Web site. Further information on the Webbased submission form, including the installation of the Web browser plug-in, is available on the NRC’s public Web site at https://www.nrc.gov/site-help/esubmittals.html. Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with the NRC guidance available on the NRC’s Web site at https://www.nrc.gov/site-help/esubmittals.html. A filing is considered complete at the time the documents are submitted through the NRC’s E-Filing system. To be timely, an electronic filing must be submitted to the E-Filing system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an email notice confirming receipt of the document. The E-Filing system also distributes an email notice that provides access to the document to the NRC’s Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 certificate before a hearing request/ petition to intervene is filed so that they can obtain access to the document via the E-Filing system. A person filing electronically using the agency’s adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the ‘‘Contact Us’’ link located on the NRC’s Web site at http: //www.nrc.gov/site-help/esubmittals.html, by email at MSHD.Resource@nrc.gov, or by a tollfree call at 1–866–672–7640. The NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays. Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555– 0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists. Documents submitted in adjudicatory proceedings will appear in the NRC’s electronic hearing docket which is available to the public at https:// ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the Commission, or the presiding officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings, unless an NRC regulation or other law requires submission of such information. With respect to copyrighted works, except for limited excerpts that serve the purpose of the E:\FR\FM\25OCN1.SGM 25OCN1 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission. If a hearing is requested by the Licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held the issue to be considered at such hearing shall be whether this Order should be sustained. Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to requesting a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the ground that the Order, including the need for immediate effectiveness, is not based on adequate evidence but on mere suspicion, unfounded allegations, or error. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section III above shall be final twenty (20) days from the date of this Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section III shall be final when the extension expires if a hearing request has not been received. AN ANSWER OR A REQUEST FOR HEARING SHALL NOT STAY THE IMMMEDIATE EFFECTIVENESS OF THIS ORDER. Dated at Rockville, Maryland, this 16th day of October, 2012. For the Nuclear Regulatory Commission. Mark A. Satorius, Director, Office of Federal and State Materials and Environmental Management Programs. Attachment 1: Applicable Materials Licensees Redacted erowe on DSK2VPTVN1PROD with Attachment 2: Requirements for Fingerprinting and Criminal History Records Checks of Individuals When Licensee’s Reviewing Official is Determining Access to Safeguards Information General Requirements Licensees shall comply with the requirements of this attachment. A. 1. Each Licensee subject to the provisions of this attachment shall fingerprint each individual who is seeking or permitted access to Safeguards Information (SGI). The Licensee shall review and use the information received from the Federal Bureau of Investigation (FBI) and ensure that the provisions contained in the subject Order and this attachment are satisfied. 2. The Licensee shall notify each affected individual that the fingerprints will be used to secure a review of his/her criminal history record and inform the individual of the VerDate Mar<15>2010 12:06 Oct 24, 2012 Jkt 229001 procedures for revising the record or including an explanation in the record, as specified in the ‘‘Right to Correct and Complete Information’’ section of this attachment. 3. Fingerprints need not be taken if an employed individual (e.g., a Licensee employee, contractor, manufacturer, or supplier) is relieved from the fingerprinting requirement by 10 CFR 73.59, has a favorably-decided U.S. Government criminal history records check within the last five (5) years, or has an active Federal security clearance. Written confirmation from the Agency/employer which granted the Federal security clearance or reviewed the criminal history records check must be provided. The Licensee must retain this documentation for a period of three (3) years from the date the individual no longer requires access to SGI associated with the Licensee’s activities. 4. All fingerprints obtained by the Licensee pursuant to this Order must be submitted to the Commission for transmission to the FBI. 5. The Licensee shall review the information received from the FBI and consider it, in conjunction with the trustworthy and reliability requirements included in Attachment 3 to NRC Order EA– 08–161, 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. 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, PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 65213 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– 415–7232, or by email to forms.resource@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, or money order, made payable to ‘‘U.S. NRC.’’ [For guidance on making electronic payments, contact the Facilities Security Branch, Division of Facilities and Security, at 301–415–7404.] Combined payment for multiple applications is acceptable. The application fee (currently $36) 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 E:\FR\FM\25OCN1.SGM 25OCN1 65214 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices erowe on DSK2VPTVN1PROD with 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 redisseminate the information to any other individual who does not have a need-toknow. 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 VerDate Mar<15>2010 12:06 Oct 24, 2012 Jkt 229001 destroyed by a method that will prevent reconstruction of the information in whole or in part. Guidance for Licensee’s Evaluation of Access to Safeguards Information With the Inclusion of Criminal History Records (Fingerprint) Checks When a Licensee submits fingerprints to the 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 Attachment 2 of Enclosure 1. The Licensee will receive the information from the criminal history records check of those individuals requiring access to Safeguards Information, and the reviewing official should 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 in the determination of whether the 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 documented to include the basis for the decision 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 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 NRC licensees nominate as reviewing officials to challenge and appeal PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 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. 2. Applicability. This policy applies solely to those employees of licensees who are nominated as a reviewing official, and who are thus to be 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 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. (ii) Be afforded 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. E:\FR\FM\25OCN1.SGM 25OCN1 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Notices 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 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 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 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. 2012–26292 Filed 10–24–12; 8:45 am] erowe on DSK2VPTVN1PROD with BILLING CODE 7590–01–P VerDate Mar<15>2010 12:06 Oct 24, 2012 Jkt 229001 NUCLEAR REGULATORY COMMISSION [NRC–2012–0254; EA–12–147] In the Matter of Licensee Identified in Attachment 1 and all Other Persons Who Obtain Safeguards Information Described Herein; Order Imposing Requirements for the Protection of Certain Safeguards Information (Effective Immediately) I The Licensee, identified in Attachment 1 1 to this Order, holds a license issued in accordance with the Atomic Energy Act of 1954, as amended, (AEA) by the U.S. Nuclear Regulatory Commission (NRC or the Commission), authorizing it to possess, use, and transfer items containing radioactive material quantities of concern. The NRC intends to issue a security Order to this Licensee in the near future. The Order will require compliance with specific Additional Security Measures to enhance the security for certain radioactive material quantities of concern. The Commission has determined that these documents will contain Safeguards Information, will not be released to the public, and must be protected from unauthorized disclosure. Therefore, the Commission is imposing the requirements, as set forth in Attachments 2 and 3 to this Order and in Order EA–12–148, so that the Licensee can receive these documents. This Order also imposes requirements for the protection of Safeguards Information in the hands of any person,2 whether or not a licensee of the Commission, who produces, receives, or acquires Safeguards Information. II The Commission has broad statutory authority to protect and prohibit the unauthorized disclosure of Safeguards Information. Section 147 of the AEA grants the Commission explicit authority to ‘‘* * * issue such orders, as necessary to prohibit the unauthorized disclosure of safeguards 1 Attachment 1 contains sensitive information and will not be released to the public. 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. PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 65215 information * * *.’’ This authority extends to information concerning the security measures for the physical protection of special nuclear material, source material, and byproduct material. Licensees and all persons who produce, receive, or acquire Safeguards Information must ensure proper handling and protection of Safeguards Information to avoid unauthorized disclosure in accordance with the specific requirements for the protection of Safeguards Information contained in Attachments 2 and 3 to this Order. The Commission hereby provides notice that it intends to treat violations of the requirements contained in Attachments 2 and 3 to this Order, applicable to the handling and unauthorized disclosure of Safeguards Information, as serious breaches of adequate protection of the public health and safety and the common defense and security of the United States. Access to Safeguards Information is limited to those persons who have established the need-to-know the information and are considered to be trustworthy and reliable, and meet the requirements of Order EA–12–148. A need-to-know means a determination by a person having responsibility for protecting Safeguards Information that a proposed recipient’s access to Safeguards Information is necessary in the performance of official, contractual, or licensee duties of employment. The Licensee and all other persons who obtain Safeguards Information must ensure that they develop, maintain and implement strict policies and procedures for the proper handling of Safeguards Information to prevent unauthorized disclosure, in accordance with the requirements in Attachments 2 and 3 to this Order. The Licensee must ensure that all contractors whose employees may have access to Safeguards Information either adhere to the Licensee’s policies and procedures on Safeguards Information or develop, or maintain and implement their own acceptable policies and procedures. The Licensee remains responsible for the conduct of their contractors. The policies and procedures necessary to ensure compliance with applicable requirements contained in Attachments 2 and 3 to this Order must address, at a minimum, the following: the general performance requirement that each person who produces, receives, or acquires Safeguards Information shall ensure that Safeguards Information is protected against unauthorized disclosure; protection of Safeguards Information at fixed sites, in use and in storage, and while in transit; correspondence containing Safeguards E:\FR\FM\25OCN1.SGM 25OCN1

Agencies

[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Notices]
[Pages 65210-65215]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26292]


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NUCLEAR REGULATORY COMMISSION

[NRC-2012-0255; EA-12-148]


In the Matter of Licensee Identified in Attachment 1 and all 
Other Persons Who Seek or Obtain Access to Safeguards Information 
Described Herein; Order Imposing Fingerprinting and Criminal History 
Records Check Requirements for Access to Safeguards Information 
(Effective Immediately)

I

    The Licensee identified in Attachment 1\1\ to this Order, holds a 
license issued in accordance with the Atomic Energy Act (AEA) of 1954, 
as amended, by the U.S. Nuclear Regulatory Commission (NRC or the 
Commission), authorizing them to engage in an activity subject to 
regulation by the Commission or Agreement States. In accordance with 
Section 149 of the AEA, fingerprinting and a Federal Bureau of 
Investigation (FBI) identification and criminal history records check 
are required of any person who is to be permitted to have access to 
Safeguards Information (SGI).\2\ The AEA permits the Commission by rule 
to except certain categories of individuals from the fingerprinting 
requirement, which the Commission has done (see 10 CFR 73.59, 71 FR 
33989; June 13, 2006). Individuals relieved from fingerprinting and 
criminal history records checks

[[Page 65211]]

under the relief rule include Federal, State, and local officials and 
law enforcement personnel; Agreement State inspectors who conduct 
security inspections on behalf of the NRC; members of Congress and 
certain employees of members of Congress or Congressional Committees, 
and representatives of the International Atomic Energy Agency (IAEA) or 
certain foreign government organizations. In addition, individuals who 
have a favorably-decided U.S. Government criminal history records check 
within the last five (5) years, or individuals who have active Federal 
security clearances (provided in either case that they make available 
the appropriate documentation), have satisfied the AEA fingerprinting 
requirement and need not be fingerprinted again. Therefore, in 
accordance with Section 149 of the AEA the Commission is imposing 
additional requirements for access to SGI, as set forth by this Order, 
so that affected licensees can obtain and grant access to SGI. This 
Order also imposes requirements for access to SGI by any person, from 
any person,\3\ whether or not a Licensee, Applicant, or Certificate 
Holder of the Commission or Agreement States.
---------------------------------------------------------------------------

    \1\ Attachment 1 contains sensitive information and will not be 
released to the public.
    \2\ Safeguards Information is a form of sensitive, unclassified, 
security-related information that the Commission has the authority 
to designate and protect under section 147 of the AEA.
    \3\ Person means (1) any individual, corporation, partnership, 
firm, association, trust, estate, public or private institution, 
group, government agency other than the Commission or the 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.
---------------------------------------------------------------------------

II

    The Commission has broad statutory authority to protect and 
prohibit the unauthorized disclosure of SGI. Section 147 of the AEA 
grants the Commission explicit authority to issue such Orders as 
necessary to prohibit the unauthorized disclosure of SGI. Furthermore, 
Section 149 of the AEA requires fingerprinting and an FBI 
identification and a criminal history records check of each individual 
who seeks access to SGI. In addition, no person may have access to SGI 
unless the person has an established need-to-know the information and 
satisfies the trustworthy and reliability requirements described in 
Attachment 3 to Order EA-12-147.
    In order to provide assurance that the Licensee identified in 
Attachment 1 to this Order is implementing appropriate measures to 
comply with the fingerprinting and criminal history records check 
requirements for access to SGI, the Licensee identified in Attachment 1 
to this Order shall implement the requirements of this Order. In 
addition, pursuant to 10 CFR 2.202, I find that in light of the common 
defense and security matters identified above, which warrant the 
issuance of this Order, the public health, safety and interest require 
that this Order be effective immediately.

III

    Accordingly, pursuant to Sections 81, 147, 149, 161b, 161i, 161o, 
182 and 186 of the Atomic Energy Act of 1954, as amended, and the 
Commission's regulations in 10 CFR 2.202, 10 CFR Parts 30 and 73, it is 
hereby ordered, effective immediately, that the licensee identified in 
attachment 1 to this order and all other persons who seek or obtain 
access to safeguards information, as described above, shall comply with 
the requirements set forth in this order.
    A. 1. No person may have access to SGI unless that person has a 
need-to-know the SGI, has been fingerprinted or who has a favorably-
decided FBI identification and criminal history records check, and 
satisfies all other applicable requirements for access to SGI. 
Fingerprinting and the FBI identification and criminal history records 
check are not required, however, for any person who is relieved from 
that requirement by 10 CFR 73.59 (71 Fed. Reg. 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 described in paragraph III.C.2 of this 
Order.
    2. No person may have access to any SGI if the NRC has determined, 
based on fingerprinting and an FBI identification and criminal history 
records check, that the person may not have access to SGI.
    B. No person may provide SGI to any other person except in 
accordance with Condition III.A. above. Prior to providing SGI to any 
person, a copy of this Order shall be provided to that person.
    C. The Licensee identified in Attachment 1 to this Order shall 
comply with the following requirements:
    1. The Licensee shall, within twenty (20) days of the date of this 
Order, establish and maintain a fingerprinting program that meets the 
requirements of Attachment 2 to this Order.
    2. The Licensee shall, within twenty (20) days of the date of this 
Order, submit the fingerprints of one (1) individual who a) the 
Licensee nominates as the ``reviewing official'' for determining access 
to SGI by other individuals, and b) has an established need-to-know the 
information and has been determined to be trustworthy and reliable in 
accordance with the requirements described in Attachment 3 to Order EA-
12-147. 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 or 
designate an additional reviewing official(s). Fingerprints shall be 
submitted and reviewed in accordance with the procedures described in 
Attachment 2 of this Order.
---------------------------------------------------------------------------

    \4\ The NRC's determination of this individual's access to SGI 
in accordance with the process described in Enclosure 5 to the 
transmittal letter of this Order is an administrative determination 
that is outside the scope of this Order.
---------------------------------------------------------------------------

    3. The Licensee shall, in writing, within twenty (20) days of the 
date of this Order, notify the Commission, (1) if it is unable to 
comply with any of the requirements described in this Order, including 
Attachment 2 to this Order, or (2) if compliance with any of the 
requirements is unnecessary in its specific circumstances. The 
notification shall provide the Licensee's justification for seeking 
relief from or variation of any specific requirement.
    Licensee responses to C.1., C.2., and C.3. above shall be submitted 
to the Director, Office of Federal and State Materials and 
Environmental Management Programs, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555. In addition, Licensee responses shall be marked 
as ``Security-Related Information--Withhold Under 10 CFR 2.390.''
    The Director, Office of Federal and State Materials and 
Environmental Management Programs, may, in writing, relax or rescind 
any of the above conditions upon demonstration of good cause by the 
Licensee.

IV

    In accordance with 10 CFR 2.202, the Licensee must, and any other 
person adversely affected by this Order may, submit an answer to this 
Order within twenty (20) days of the date of this Order. In addition, 
the Licensee and any other person adversely affected by this Order may 
request a hearing of this Order within twenty (20) days of the

[[Page 65212]]

date of the Order. Where good cause is shown, consideration will be 
given to extending the time to request a hearing. A request for 
extension of time must be made, in writing, to the Director, Office of 
Federal and State Materials and Environmental Management Programs, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, and include a 
statement of good cause for the extension.
    The answer may consent to this Order. If the answer includes a 
request for a hearing, it shall, under oath or affirmation, 
specifically set forth the matters of fact and law on which the 
Licensee relies and the reasons as to why the Order should not have 
been issued. If a person other than the Licensee requests a hearing, 
that person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d).
    All documents filed in the NRC adjudicatory proceedings, including 
a request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 10 
days prior to the filing deadline, the participant should contact the 
Office of the Secretary by email at hearing.docket@nrc.gov, or by 
telephone at 301-415-1677, to request (1) a digital identification (ID) 
certificate, which allows the participant (or its counsel or 
representative) to digitally sign documents and access the E-Submittal 
server for any proceeding in which it is participating; and (2) advise 
the Secretary that the participant will be submitting a request or 
petition for hearing (even in instances in which the participant, or 
its counsel or representative, already holds an NRC-issued digital ID 
certificate). Based upon this information, the Secretary will establish 
an electronic docket for the hearing in this proceeding if the 
Secretary has not already established an electronic docket.
    Information about applying for a digital ID certificate is 
available on the NRC's public Web site at https://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in the NRC's ``Guidance for 
Electronic Submission,'' which is available on the NRC's public Web 
site at https://www.nrc.gov/site-help/e-submittals.html. Participants 
may attempt to use other software not listed on the Web site, but 
should note that the NRC's E-Filing system does not support unlisted 
software, and the NRC Meta System Help Desk will not be able to offer 
assistance in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through the Electronic Information Exchange System, 
users will be required to install a Web browser plug-in from the NRC's 
Web site. Further information on the Web-based submission form, 
including the installation of the Web browser plug-in, is available on 
the NRC's public Web site at https://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with the NRC guidance 
available on the NRC's Web site at https://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an email notice confirming receipt of the document. The 
E-Filing system also distributes an email notice that provides access 
to the document to the NRC's Office of the General Counsel and any 
others who have advised the Office of the Secretary that they wish to 
participate in the proceeding, so that the filer need not serve the 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC's Web site 
at https://www.nrc.gov/site-help/e-submittals.html, by email at 
MSHD.Resource@nrc.gov, or by a toll-free call at 1-866-672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 
20852, Attention: Rulemaking and Adjudications Staff. Participants 
filing a document in this manner are responsible for serving the 
document on all other participants. Filing is considered complete by 
first-class mail as of the time of deposit in the mail, or by courier, 
express mail, or expedited delivery service upon depositing the 
document with the provider of the service. A presiding officer, having 
granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in the 
NRC's electronic hearing docket which is available to the public at 
https://ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the 
Commission, or the presiding officer. Participants are requested not to 
include personal privacy information, such as social security numbers, 
home addresses, or home phone numbers in their filings, unless an NRC 
regulation or other law requires submission of such information. With 
respect to copyrighted works, except for limited excerpts that serve 
the purpose of the

[[Page 65213]]

adjudicatory filings and would constitute a Fair Use application, 
participants are requested not to include copyrighted materials in 
their submission.
    If a hearing is requested by the Licensee or a person whose 
interest is adversely affected, the Commission will issue an Order 
designating the time and place of any hearing. If a hearing is held the 
issue to be considered at such hearing shall be whether this Order 
should be sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to 
requesting a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the ground that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence but on mere suspicion, 
unfounded allegations, or error.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, the provisions 
specified in Section III above shall be final twenty (20) days from the 
date of this Order without further order or proceedings. If an 
extension of time for requesting a hearing has been approved, the 
provisions specified in Section III shall be final when the extension 
expires if a hearing request has not been received. AN ANSWER OR A 
REQUEST FOR HEARING SHALL NOT STAY THE IMMMEDIATE EFFECTIVENESS OF THIS 
ORDER.

    Dated at Rockville, Maryland, this 16th day of October, 2012.

    For the Nuclear Regulatory Commission.
Mark A. Satorius,
Director, Office of Federal and State Materials and Environmental 
Management Programs.

Attachment 1: Applicable Materials Licensees Redacted

Attachment 2: Requirements for Fingerprinting and Criminal History 
Records Checks of Individuals When Licensee's Reviewing Official is 
Determining Access to Safeguards Information

General Requirements

    Licensees shall comply with the requirements of this attachment.
    A. 1. Each Licensee subject to the provisions of this attachment 
shall fingerprint each individual who is seeking or permitted access 
to Safeguards Information (SGI). The Licensee shall review and use 
the information received from the Federal Bureau of Investigation 
(FBI) and ensure that the provisions contained in the subject Order 
and this attachment are satisfied.
    2. The Licensee shall notify each affected individual that the 
fingerprints will be used to secure a review of his/her criminal 
history record and inform the individual of the procedures for 
revising the record or including an explanation in the record, as 
specified in the ``Right to Correct and Complete Information'' 
section of this attachment.
    3. Fingerprints need not be taken if an employed individual 
(e.g., a Licensee employee, contractor, manufacturer, or supplier) 
is relieved from the fingerprinting requirement by 10 CFR 73.59, has 
a favorably-decided U.S. Government criminal history records check 
within the last five (5) years, or has an active Federal security 
clearance. Written confirmation from the Agency/employer which 
granted the Federal security clearance or reviewed the criminal 
history records check must be provided. The Licensee must retain 
this documentation for a period of three (3) years from the date the 
individual no longer requires access to SGI associated with the 
Licensee's activities.
    4. All fingerprints obtained by the Licensee pursuant to this 
Order must be submitted to the Commission for transmission to the 
FBI.
    5. The Licensee shall review the information received from the 
FBI and consider it, in conjunction with the trustworthy and 
reliability requirements included in Attachment 3 to NRC Order EA-
08-161, 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 301-415-7232, or by email to 
forms.resource@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, 
or money order, made payable to ``U.S. NRC.'' [For guidance on 
making electronic payments, contact the Facilities Security Branch, 
Division of Facilities and Security, at 301-415-7404.] Combined 
payment for multiple applications is acceptable. The application fee 
(currently $36) 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

[[Page 65214]]

the agency (i.e., law enforcement agency) that contributed the 
questioned information, or direct challenge as to the accuracy or 
completeness of any entry on the criminal history record to the 
Assistant Director, Federal Bureau of Investigation Identification 
Division, Washington, DC 20537-9700 (as set forth in 28 CFR 16.30 
through 16.34). In the latter case, the FBI forwards the challenge 
to the agency that submitted the data and requests that agency to 
verify or correct the challenged entry. Upon receipt of an official 
communication directly from the agency that contributed the original 
information, the FBI Identification Division makes any changes 
necessary in accordance with the information supplied by that 
agency. The Licensee must provide at least ten (10) days for an 
individual to initiate an action challenging the results of an FBI 
criminal history records check after the record is made available 
for his/her review. The Licensee may make a final SGI access 
determination based upon the criminal history record only upon 
receipt of the FBI's ultimate confirmation or correction of the 
record. Upon a final adverse determination on access to SGI, the 
Licensee shall provide the individual its documented basis for 
denial. Access to SGI shall not be granted to an individual during 
the review process.

Protection of Information

    1. Each Licensee who obtains a criminal history record on an 
individual pursuant to this Order shall establish and maintain a 
system of files and procedures for protecting the record and the 
personal information from unauthorized disclosure.
    2. The Licensee may not disclose the record or personal 
information collected and maintained to persons other than the 
subject individual, his/her representative, or to those who have a 
need to access the information in performing assigned duties in the 
process of determining access to Safeguards Information. No 
individual authorized to have access to the information may re-
disseminate the information to any other individual who does not 
have a need-to-know.
    3. The personal information obtained on an individual from a 
criminal history record check may be transferred to another Licensee 
if the Licensee holding the criminal history record check receives 
the individual's written request to re-disseminate the information 
contained in his/her file, and the gaining Licensee verifies 
information such as the individual's name, date of birth, social 
security number, sex, and other applicable physical characteristics 
for identification purposes.
    4. The Licensee shall make criminal history records, obtained 
under this section, available for examination by an authorized 
representative of the NRC to determine compliance with the 
regulations and laws.
    5. The Licensee shall retain all fingerprint and criminal 
history records received from the FBI, or a copy if the individual's 
file has been transferred, for three (3) years after termination of 
employment or determination of access to SGI (whether access was 
approved or denied). After the required three (3) year period, these 
documents shall be destroyed by a method that will prevent 
reconstruction of the information in whole or in part.

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

    When a Licensee submits fingerprints to the 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 Attachment 2 of Enclosure 1. The Licensee will receive the 
information from the criminal history records check of those 
individuals requiring access to Safeguards Information, and the 
reviewing official should 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 in the determination of whether the 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 
documented to include the basis for the decision 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 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 NRC 
licensees 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.
    2. Applicability.
    This policy applies solely to those employees of licensees who 
are nominated as a reviewing official, and who are thus to be 
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 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.
    (ii) Be afforded 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.

[[Page 65215]]

    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 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 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 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. 2012-26292 Filed 10-24-12; 8:45 am]
BILLING CODE 7590-01-P
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