Order Imposing Fingerprinting and Criminal History Record Check Requirements for Access to Safeguards Information

Federal Register: July 2, 2008 (Volume 73, Number 128)

Notices

Page 37990-37993

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr02jy08-112

NUCLEAR REGULATORY COMMISSION

EA-08-162

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

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 NRC's implementation of this requirement cannot await the completion of the SGI rulemaking, which is underway. Although 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 Part 73.59, 71 FR 33,989

(June 13, 2006)), it is unlikely that licensee employees or others are excepted from the fingerprinting requirement by the ``fingerprinting relief'' rule. Individuals relieved from fingerprinting and criminal history records checks under the relief rule include Federal, State, and local officials and law enforcement personnel; Agreement State inspectors who conduct security inspections on behalf of the NRC; members of Congress and certain employees of members of Congress or

Congressional Committees, and representatives of the International

Atomic Energy Agency (IAEA) or certain foreign government organizations. In addition, individuals who have a favorably-decided

U.S. Government criminal history records check within the last five (5) years, or individuals who have active federal security clearances

(provided in either case that they make available the appropriate documentation), have satisfied the 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-08-161.

In order to provide assurance that the Licensees identified in

Attachment 1 to this Order are implementing appropriate measures to comply with the fingerprinting and criminal history records check requirements for access to SGI, all Licensees identified in Attachment 1 to 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 all licensees identified in attachment 1 to this order and all other persons who seek or obtain access to safeguards information, as described above, shall comply with the requirements set forth in this order.

1. 1. No person may have access to SGI unless that person has a need-to-know the SGI, has been fingerprinted or who has a favorably- decided FBI identification and criminal history records check, and satisfies all other applicable requirements for access to SGI.

   Fingerprinting and the FBI identification and criminal history records check are not required, however, for any person who is relieved from that requirement by 10 CFR 73.59 (71 FR 33,989 (June 13, 2006)), or who has a favorably-decided U.S. Government criminal history records check within the last five (5) years, or who has an active federal security clearance, provided in the latter two cases that the appropriate

   Page 37991

   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.

2. 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.

3. All Licensees identified in Attachment 1 to this Order shall comply with the following requirements: 1. The Licensee shall, within twenty (20) days of the date of this

   Order, establish and maintain a fingerprinting program that meets the requirements of Attachment 2 to this Order. 2. The Licensee shall, within twenty (20) days of the date of this

   Order, submit the fingerprints of one (1) individual who (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-08-161. 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 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, 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 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 E-Filing rule, which the NRC promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in pertinent part at 10 CFR Part 2, Subpart B. 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 a waiver in accordance with the procedures described below.

   To comply with the procedural requirements associated with E-

   Filing, at least ten (10) days prior to the filing deadline the requestor must contact the Office of the Secretary by e-mail at

   HEARINGDOCKET@NRC.GOV, or by calling (301) 415-1677, to request (1) a digital ID certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any NRC proceeding in which it is participating; and/or (2) creation of an electronic docket for the proceeding (even in instances when the requestor (or its counsel or representative) already holds an

   NRC-issued digital ID certificate). Each requestor will need to download the Workplace Forms ViewerTMto access the

   Electronic Information Exchange (EIE), a component of the E-Filing system. The Workplace Forms ViewerTMis free and is available at http://www.nrc.gov/site-help/e-submittals/install- viewer.html. Information about applying for a digital ID certificate also is available on NRC's public Web site at http://www.nrc.gov/site- help/e-submittals/apply-certificates.html.

   Once a requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for a hearing through EIE. Submissions should be in Portable

   Document Format (PDF) in accordance with NRC guidance available on the

   NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html.

   A filing is considered complete at the time the filer submits its document through EIE. To be timely, electronic filings must be submitted to the EIE 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 e-mail notice confirming receipt of the document. The EIE system also distributes an e-mail notice that provides access to the document to the NRC 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 document on those participants separately.

   Therefore, any others who wish to participate in the proceeding (or their counsel or representative) must apply for and receive a digital

   ID certificate before a hearing request is filed so that they may obtain access to the document via the E-Filing system.

   Page 37992

   A person filing electronically may seek assistance through the

   ``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/ site-help/e-submittals.html or by calling the NRC technical help line, which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,

   Monday through Friday. The help line number is (800) 397-4209 or locally, (301) 415-4737.

   Participants who believe that they have good cause for not submitting documents electronically must file a motion, 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.

   Documents submitted in adjudicatory proceedings will appear in

   NRC's electronic hearing docket which is available to the public at http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant to an order of the Commission, an Atomic Safety and Licensing Board, or a 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. 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 works.

   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 this 18th day of June 2008.

   For the Nuclear Regulatory Commission.

   George Pangburn,

   Acting Director, Office of Federal and State Materials and

   Environmental Management Programs.

   Attachment 1: List of 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

   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.

1. 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 Part 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.

2. 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, by calling (301) 415-7232, or by e-mail 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.

   Page 37993

   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 resubmission 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 Part 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.

   FR Doc. E8-14958 Filed 7-1-08; 8:45 am

   BILLING CODE 7590-01-P