[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Notices]
[Pages 40773-40776]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16285]


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NUCLEAR REGULATORY COMMISSION

[EA-13-040; NRC-2013-0144]


 Order Imposing Requirements for the Protection of Certain 
Safeguards Information (Effective Immediately); In the Matter of 
Licensee Identified in Attachment 1 and All Other Persons Who Obtain 
Safeguards Information Described Herein

I

    The Licensee, identified in Attachment 1 \1\ to this Order, holds a

[[Page 40774]]

license issued in accordance with the Atomic Energy Act of 1954, as 
amended, (AEA) by the U.S. Nuclear Regulatory Commission (NRC) or an 
Agreement State, authorizing it to possess, use, and transfer items 
containing radioactive material quantities of concern. The NRC intends 
to issue security Orders 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-13-041 (NRC-2013-0145), 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 U.S. 
Department of Energy (DOE), except that the DOE shall be considered 
a person with respect to those facilities of the DOE specified in 
section 202 of the Energy Reorganization Act of 1974 (88 Stat. 
1244), any State or any political subdivision of, or any political 
entity within a State, any foreign government or nation or any 
political subdivision of any such government or nation, or other 
entity; and (2) any legal successor, representative, agent, or 
agency of the foregoing.
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II

    The Commission has broad statutory authority to protect and 
prohibit the unauthorized disclosure of 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, are considered to be 
trustworthy and reliable, and meet the requirements of Order EA-13-041. 
A need-to-know means a determination by a person having responsibility 
for protecting Safeguard 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 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 10 CFR Part 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, 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 all licensees 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 to this order.
    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).

[[Page 40775]]

    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 (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 
ten (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 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 NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency'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 Electronic Information Exchange, users will be 
required to install a Web browser plug-in from the NRC 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 
a hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with NRC guidance 
available on the NRC public Web site at 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 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, 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 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 (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 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

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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 27th day of June, 2013.
    For the Nuclear Regulatory Commission.
Brian J. McDermott,
Director, Division of Materials Safety and State Agreements, Office of 
Federal and State Materials and Environmental Management Programs.

Attachment 1: List of Applicable Materials Licensees

Redacted

Attachment 2: Modified Handling Requirements for the Protection of 
Certain Safeguards Information (SGI-M) General Requirement

Redacted

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 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 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-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 described in requirement 1 above, and meet the 
requirements of NRC Order EA-13-041.
[FR Doc. 2013-16285 Filed 7-5-13; 8:45 am]
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