6. Has been convicted of a crime(s) which, in the Reviewing
Official's opinion, indicate poor judgment, unreliability, or
untrustworthiness.
These indicators are not meant to be all inclusive nor intended
to be disqualifying factors. Licensees can also consider how recent
such indicators occurred and other extenuating or mitigating factors
in their determinations. Section 149.c.(2)(B) of the AEA requires
that the information obtained as a result of fingerprinting be used
solely for the purposes of making a determination as to unescorted
access suitability. Unescorted access suitability is not a hiring
decision, and the NRC does not intend for licensees to use this
guidance as such. Because a particular individual may not be
suitable for unescorted access does not necessarily mean that he is
not suitable for escorted access or some other position that does
not involve NRC-regulated activities.
Process To Challenge NRC Denials or Revocations of Unescorted Access to
Certain Radioactive Material
1. Policy.
This policy establishes a process for individuals whom NRC
licensees nominate
[[Page 65231]]
as Reviewing Officials to challenge and appeal NRC denials or
revocations of access to certain radioactive material. Any
individual designated as a licensee Reviewing Official whom the NRC
has determined may not have unescorted access to certain radioactive
material 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 create a liberty or property
interest of any kind in the unescorted access of any individual to
certain radioactive material.
2. Applicability.
This policy applies solely to those employees of licensees who
are designated as a Reviewing Official, and who are thus to be
considered by the NRC for initial or continued unescorted access to
certain radioactive material in that position.
3. Unescorted Access Determination Criteria.
Determinations for granting a designated Reviewing Official
unescorted access to certain radioactive material will be made by
the NRC staff. Unescorted access 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 unescorted access to certain radioactive material shall
be resolved in favor of national security and result in denial or
revocation of unescorted access.
4. Procedures to Challenge the Contents of Records Obtained from
the FBI.
Prior to a determination by the NRC Facilities Security Branch
Chief that an individual designated as a Reviewing Official is
denied or revoked unescorted access to certain radioactive material,
the individual shall:
a. 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 C.F.R. Sec.
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.
b. Be afforded 10 days to initiate an action challenging the
results of an FBI criminal history records check (described in (a),
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.
Prior to a determination by the NRC Facilities Security Branch
Chief that an individual designated as a Reviewing Official is
denied or revoked access to certain radioactive material, the
individual shall 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 unescorted access to certain radioactive material
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
Certain Radioactive Material.
Upon a determination by the NRC Facilities Security Branch Chief
that an individual nominated as a Reviewing Official is denied or
revoked access to certain radioactive material, 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 Certain Radioactive Material.
Upon a determination by the NRC Facilities Security Branch Chief
that an individual nominated as a reviewing official is denied or
revoked access to certain radioactive material, 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 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 certain radioactive material is final and not
subject to further administrative appeals.
[FR Doc. 2012-26299 Filed 10-24-12; 8:45 am]
BILLING CODE 7590-01-P
[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]
-----------------------------------------------------------------------
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 http://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 http://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 http://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 http://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 http://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
http://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
[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Notices]
[Pages 65215-65220]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26288]
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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.
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\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.
---------------------------------------------------------------------------
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 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
[[Page 65216]]
Information; access to Safeguards Information; preparation, marking,
reproduction and destruction of documents; external transmission of
documents; use of automatic data processing systems; removal of the
Safeguards Information category; the need-to-know the information; and
background checks to determine access to the information.
In order to provide assurance that the Licensee is implementing
prudent measures to achieve a consistent level of protection to
prohibit the unauthorized disclosure of Safeguards Information, the
Licensee shall implement the requirements identified in Attachments 2
and 3 to this Order. In addition, pursuant to Attachments 2 and 3 to
this Order, 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, 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 Part 30, 10 CFR Part
32, 10 CFR Part 35, 10 CFR Part 70, and 10 CFR Part 73, it is hereby
ordered, effective immediately, that the licensee identified in
attachment 1 to this order and all other persons who produce, receive,
or acquire the additional security measures identified above (whether
draft or final) or any related safeguards information shall comply with
the requirements of attachments 2 and 3.
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 20555-0001, 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). Pursuant to 10 CFR
2.202(c)(2)(i), the Licensee or any other person adversely affected by
this Order 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, ungrounded allegations or
error.
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 http://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 http://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 http://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 http://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
[[Page 65217]]
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 Web site
at http://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
NRC's electronic hearing docket which is available to the public at
http://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.
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 immediate 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--Modified Handling Requirements for the Protection of
Certain Safeguards Information (SGI-M) General Requirement
Information and material that the U.S. Nuclear Regulatory
Commission (NRC) determines are safeguards information must be
protected from unauthorized disclosure. In order to distinguish
information needing modified protection requirements from the
safeguards information for reactors and fuel cycle facilities that
require a higher level of protection, the term ``Safeguards
Information--Modified Handling'' (SGI-M) is being used as the
distinguishing marking for certain materials licensees. Each person who
produces, receives, or acquires SGI-M shall ensure that it is protected
against unauthorized disclosure. To meet this requirement, licensees
and persons shall establish and maintain an information protection
system that includes the measures specified below. Information
protection procedures employed by State and local police forces are
deemed to meet these requirements.
Persons Subject to These Requirements
Any person, whether or not a licensee of the NRC, who produces,
receives, or acquires SGI-M is subject to the requirements (and
sanctions) of this document. Firms and their employees that supply
services or equipment to materials licensees would fall under this
requirement if they possess facility SGI-M. A licensee must inform
contractors and suppliers of the existence of these requirements and
the need for proper protection. (See more under Conditions for Access)
State or local police units who have access to SGI-M are also subject
to these requirements. However, these organizations are deemed to have
adequate information protection systems. The conditions for transfer of
information to a third party, i.e., need-to-know, would still apply to
the police organization as would sanctions for unlawful disclosure.
Again, it would be prudent for licensees who have arrangements with
local police to advise them of the existence of these requirements.
Criminal and Civil Sanctions
The Atomic Energy Act of 1954, as amended, explicitly provides that
any person, ``whether or not a licensee of the Commission, who violates
any regulations adopted under this section shall be subject to the
civil monetary penalties of section 234 of this Act.'' Furthermore,
willful violation of any regulation or order governing safeguards
information is a felony subject to criminal penalties in the form of
fines or imprisonment, or both. See sections 147b. and 223 of the Act.
Conditions for Access
Access to SGI-M beyond the initial recipients of the order will be
governed by the background check requirements imposed by the order.
Access to SGI-M by licensee employees, agents, or contractors must
include both an appropriate need-to-know determination by the licensee,
as well as a determination concerning the trustworthiness of
individuals having access to the information. Employees of an
organization affiliated with the licensee's company (e.g., a parent
company), may be considered as
[[Page 65218]]
employees of the licensee for access purposes.
Need-to-Know
Need-to-know is defined as a determination by a person having
responsibility for protecting SGI-M that a proposed recipient's access
to SGI-M is necessary in the performance of official, contractual, or
licensee duties of employment. The recipient should be made aware that
the information is SGI-M and those having access to it are subject to
these requirements as well as criminal and civil sanctions for
mishandling the information.
Occupational Groups
Dissemination of SGI-M is limited to individuals who have an
established need-to-know and who are members of certain occupational
groups. These occupational groups are:
A. An employee, agent, or contractor of an applicant, a licensee,
the Commission, or the United States Government;
B. A member of a duly authorized committee of the Congress;
C. The Governor of a State or his designated representative;
D. A representative of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who has been certified by the NRC;
E. A member of a State or local law enforcement authority that is
responsible for responding to requests for assistance during safeguards
emergencies; or
F. A person to whom disclosure is ordered pursuant to Section
2.744(e) of Part 2 of Part 10 of the Code of Federal Regulations.
G. State Radiation Control Program Directors (and State Homeland
Security Directors) or their designees.
In a generic sense, the individuals described above in (A) through
(G) are considered to be trustworthy by virtue of their employment
status. For non-governmental individuals in group (A) above, a
determination of reliability and trustworthiness is required.
Discretion must be exercised in granting access to these individuals.
If there is any indication that the recipient would be unwilling or
unable to provide proper protection for the SGI-M, they are not
authorized to receive SGI-M.
Information Considered for Safeguards Information Designation
Information deemed SGI-M is information the disclosure of which
could reasonably be expected to have a significant adverse effect on
the health and safety of the public or the common defense and security
by significantly increasing the likelihood of theft, diversion, or
sabotage of materials or facilities subject to NRC jurisdiction.
SGI-M identifies safeguards information which is subject to these
requirements. These requirements are necessary in order to protect
quantities of nuclear material significant to the health and safety of
the public or common defense and security.
The overall measure for consideration of SGI-M is the usefulness of
the information (security or otherwise) to an adversary in planning or
attempting a malevolent act. The specificity of the information
increases the likelihood that it will be useful to an adversary.
Protection While in Use
While in use, SGI-M shall be under the control of an authorized
individual. This requirement is satisfied if the SGI-M is attended by
an authorized individual even though the information is in fact not
constantly being used. SGI-M, therefore, within alarm stations,
continuously manned guard posts or ready rooms need not be locked in
file drawers or storage containers.
Under certain conditions the general control exercised over
security zones or areas would be considered to meet this requirement.
The primary consideration is limiting access to those who have a need-
to-know. Some examples would be:
Alarm stations, guard posts and guard ready rooms;
Engineering or drafting areas if visitors are escorted and information
is not clearly visible;
Plant maintenance areas if access is restricted and information is not
clearly visible;
Administrative offices (e.g., central records or purchasing) if
visitors are escorted and information is not clearly visible.
Protection While in Storage
While unattended, SGI-M shall be stored in a locked file drawer or
container. Knowledge of lock combinations or access to keys protecting
SGI-M shall be limited to a minimum number of personnel for operating
purposes who have a ``need-to-know'' and are otherwise authorized
access to SGI-M in accordance with these requirements. Access to lock
combinations or keys shall be strictly controlled so as to prevent
disclosure to an unauthorized individual.
Transportation of Documents and Other Matter
Documents containing SGI-M when transmitted outside an authorized
place of use or storage shall be enclosed in two sealed envelopes or
wrappers. The inner envelope or wrapper shall contain the name and
address of the intended recipient, and be marked both sides, top and
bottom with the words ``Safeguards Information--Modified Handling.''
The outer envelope or wrapper must be addressed to the intended
recipient, must contain the address of the sender, and must not bear
any markings or indication that the document contains SGI-M.
SGI-M may be transported by any commercial delivery company that
provides nation-wide overnight service with computer tracking features,
US first class, registered, express, or certified mail, or by any
individual authorized access pursuant to these requirements. Within a
facility, SGI-M may be transmitted using a single opaque envelope. It
may also be transmitted within a facility without single or double
wrapping, provided adequate measures are taken to protect the material
against unauthorized disclosure. Individuals transporting SGI-M should
retain the documents in their personal possession at all times or
ensure that the information is appropriately wrapped and also secured
to preclude compromise by an unauthorized individual.
Preparation and Marking of Documents
While the NRC is the sole authority for determining what specific
information may be designated as ``SGI-M,'' originators of documents
are responsible for determining whether those documents contain such
information. Each document or other matter that contains SGI-M shall be
marked ``Safeguards Information--Modified Handling'' in a conspicuous
manner on the top and bottom of the first page to indicate the presence
of protected information. The first page of the document must also
contain (i) the name, title, and organization of the individual
authorized to make a SGI-M determination, and who has determined that
the document contains SGI-M, (ii) the date the document was originated
or the determination made, (iii) an indication that the document
contains SGI-M, and (iv) an indication that unauthorized disclosure
would be subject to civil and criminal sanctions. Each additional page
shall be marked in a conspicuous fashion at the top and bottom with
letters denoting
[[Page 65219]]
``Safeguards Information Modified Handling.''
In additional to the ``Safeguards Information--Modified Handling''
markings at the top and bottom of each page, transmittal letters or
memoranda which do not in themselves contain SGI-M shall be marked to
indicate that attachments or enclosures contain SGI-M but that the
transmittal does not (e.g., ``When separated from SGI-M enclosure(s),
this document is decontrolled'').
In addition to the information required on the face of the
document, each item of correspondence that contains SGI-M shall, by
marking or other means, clearly indicate which portions (e.g.,
paragraphs, pages, or appendices) contain SGI-M and which do not.
Portion marking is not required for physical security and safeguards
contingency plans.
All documents or other matter containing SGI-M in use or storage
shall be marked in accordance with these requirements. A specific
exception is provided for documents in the possession of contractors
and agents of licensees that were produced more than one year prior to
the effective date of the order. Such documents need not be marked
unless they are removed from file drawers or containers. The same
exception applies to old documents stored away from the facility in
central files or corporation headquarters.
Since information protection procedures employed by state and local
police forces are deemed to meet NRC requirements, documents in the
possession of these agencies need not be marked as set forth in this
document.
Removal From SGI-M Category
Documents containing SGI-M shall be removed from the SGI-M category
(decontrolled) only after the NRC determines that the information no
longer meets the criteria of SGI-M. Licensees have the authority to
make determinations that specific documents which they created no
longer contain SGI-M information and may be decontrolled. Consideration
must be exercised to ensure that any document decontrolled shall not
disclose SGI-M in some other form or be combined with other unprotected
information to disclose SGI-M.
The authority to determine that a document may be decontrolled may
be exercised only by, or with the permission of, the individual (or
office) who made the original determination. The document shall
indicate the name and organization of the individual removing the
document from the SGI-M category and the date of the removal. Other
persons who have the document in their possession should be notified of
the decontrolling of the document.
Reproduction of Matter Containing SGI-M
SGI-M may be reproduced to the minimum extent necessary consistent
with need without permission of the originator. Newer digital copiers
which scan and retain images of documents represent a potential
security concern. If the copier is retaining SGI-M information in
memory, the copier cannot be connected to a network. It should also be
placed in a location that is cleared and controlled for the authorized
processing of SGI-M information. Different copiers have different
capabilities, including some which come with features that allow the
memory to be erased. Each copier would have to be examined from a
physical security perspective.
Use of Automatic Data Processing (ADP) Systems
SGI-M may be processed or produced on an ADP system provided that
the system is assigned to the licensee's or contractor's facility and
requires the use of an entry code/password for access to stored
information. Licensees are encouraged to process this information in a
computing environment that has adequate computer security controls in
place to prevent unauthorized access to the information. An ADP system
is defined here as a data processing system having the capability of
long term storage of SGI-M. Word processors such as typewriters are not
subject to the requirements as long as they do not transmit information
offsite. (Note: if SGI-M is produced on a typewriter, the ribbon must
be removed and stored in the same manner as other SGI-M information or
media.) The basic objective of these restrictions is to prevent access
and retrieval of stored SGI-M by unauthorized individuals, particularly
from remote terminals. Specific files containing SGI-M will be password
protected to preclude access by an unauthorized individual. The
National Institute of Standards and Technology (NIST) maintains a
listing of all validated encryption systems at http://csrc.nist.gov/
cryptval/1401/1401val.htm. SGI-M files may be transmitted over a
network if the file is encrypted. In such cases, the licensee will
select a commercially available encryption system that NIST has
validated as conforming to Federal Information Processing Standards
(FIPS). SGI-M files shall be properly labeled as ``Safeguards
Information--Modified Handling'' and saved to removable media and
stored in a locked file drawer or cabinet.
Telecommunications
SGI-M may not be transmitted by unprotected telecommunications
circuits except under emergency or extraordinary conditions. For the
purpose of this requirement, emergency or extraordinary conditions are
defined as any circumstances that require immediate communications in
order to report, summon assistance for, or respond to a security event
(or an event that has potential security significance).
This restriction applies to telephone, telegraph, teletype,
facsimile circuits, and to radio. Routine telephone or radio
transmission between site security personnel, or between the site and
local police, should be limited to message formats or codes that do not
disclose facility security features or response procedures. Similarly,
call-ins during transport should not disclose information useful to a
potential adversary. Infrequent or non-repetitive telephone
conversations regarding a physical security plan or program are
permitted provided that the discussion is general in nature.
Individuals should use care when discussing SGI-M at meetings or in
the presence of others to insure that the conversation is not overheard
by persons not authorized access. Transcripts, tapes or minutes of
meetings or hearings that contain SGI-M shall be marked and protected
in accordance with these requirements.
Destruction
Documents containing SGI-M should be destroyed when no longer
needed. They may be destroyed by tearing into small pieces, burning,
shredding or any other method that precludes reconstruction by means
available to the public at large. Piece sizes one half inch or smaller
composed of several pages or documents and thoroughly mixed would be
considered completely destroyed.
Attachment 3--Trustworthiness and Reliability Requirements for
Individuals Handling Safeguards Information
In order to ensure the safe handling, use, and control of
information designated as Safeguards Information, each licensee shall
control and limit access to the information to only those individuals
who have established the need-to-know the information, and are
considered to be trustworthy and reliable. Licensees shall document the
basis for concluding that there is reasonable assurance that
individuals
[[Page 65220]]
granted access to Safeguards Information are trustworthy and reliable,
and do not constitute an unreasonable risk for malevolent use of the
information.
The Licensee shall comply with the requirements of this attachment:
1. The trustworthiness and reliability of an individual shall be
determined based on a background investigation:
(a) The background investigation shall address at least the past
three (3) years, and, at a minimum, include verification of employment,
education, and personal references. The licensee shall also, to the
extent possible, obtain independent information to corroborate that
provided by the employee (i.e., seeking references not supplied by the
individual).
(b.) If an individual's employment has been less than the required
three (3) year period, educational references may be used in lieu of
employment history.
The licensee's background investigation requirements may be satisfied
for an individual that has an active Federal security clearance.
2. The licensee shall retain documentation regarding the
trustworthiness and reliability of individual employees for three years
after the individual's employment ends. In order for an individual to
be granted access to Safeguards Information, the individual must be
determined to be trustworthy and reliable, as describe in requirement 1
above, and meet the requirements of NRC Order EA-12-148.
DG-SGI-1, Designation Guide for Safeguards Information Redacted
[FR Doc. 2012-26288 Filed 10-24-12; 8:45 am]
BILLING CODE 7590-01-P
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