[Federal Register Volume 72, Number 112 (Tuesday, June 12, 2007)]
[Notices]
[Pages 32335-32338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2879]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 72-17; EA-07-124]


In the Matter of Portland General Electric Company, Trojan 
Independent Spent Fuel Storage Installation, Modifying License 
(Effective Immediately)

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Issuance of order imposing fingerprinting and criminal history 
check requirements for unescorted access to certain spent fuel storage 
facilities.

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FOR FURTHER INFORMATION CONTACT: L. Raynard Wharton, Senior Project 
Manager, Licensing and Inspection Directorate, Division of Spent Fuel 
Storage and Transportation, Office of Nuclear Material Safety and 
Safeguards (NMSS), U.S. Nuclear Regulatory Commission (NRC), Rockville, 
MD 20852. Telephone: (301) 492-3316; fax number: (301) 492-3348; e-
mail: <a href="/cdn-cgi/l/email-protection#1d716f6a5d736f7e337a726b"><span class="__cf_email__" data-cfemail="64081613240a16074a030b12">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Pursuant to 10 CFR 2.202, NRC (or the Commission) is providing 
notice, in the matter of Trojan Independent Spent Fuel Storage 
Installation (ISFSI) Order Modifying License (Effective Immediately).

II. Further Information

I.

    The NRC has issued a specific license, to the Portland General 
Electric Company (PGE), authorizing storage of spent fuel in an ISFSI, 
in accordance with the Atomic Energy Act (AEA) of 1954, as amended, and 
Title 10 of the Code of Federal Regulations (10 CFR) part 72. On August 
8, 2005, the Energy Policy Act of 2005 (EPAct) was enacted. Section 652 
of the EPAct amended Section 149, of the AEA, to require fingerprinting 
and a Federal Bureau of Investigation (FBI) identification and criminal 
history records check of any individual who is permitted unescorted 
access to radioactive material or other property subject to regulation 
by the Commission, which the Commission determines to be of such 
significance to the public health and safety or the common defense and 
security, as to warrant fingerprinting and background checks. The 
Commission has determined that spent fuel storage facilities meet the 
requisite threshold warranting these additional measures. Though a 
rulemaking to implement the fingerprinting provisions of the EPAct is 
currently underway, the NRC has decided to implement this particular 
requirement by Order, in part, prior to the completion of the 
rulemaking because a deliberate malevolent act by an individual with 
unescorted access to spent fuel storage facilities has a potential to 
result in significant adverse impacts to the public health and safety 
or the common defense and security.
    Those exempted from fingerprinting requirements under 10 CFR 73.61 
[72 FR 4945 (February 2, 2007)] are also exempt from the fingerprinting 
requirements under this Order. In addition, individuals who have had a 
favorably decided U.S. Government criminal history records check within 
the last five (5) years, or individuals who have active federal 
security clearance (provided in either case that they make available 
the appropriate documentation), have satisfied the EPAct fingerprinting 
requirement and need not be fingerprinted again. Also, individuals who 
have been fingerprinted and granted access to Safeguards Information 
(SGI) by the reviewing official under the previous fingerprinting 
order, ``Order Imposing Fingerprinting and Criminal History Check 
Requirements for Access to Safeguards Information'' (EA-06-298) do not 
need to be fingerprinted again.
    Subsequent to the terrorist events of September 11, 2001, the NRC 
issued security Orders requiring certain entities to implement Interim 
Compensatory Measures (ICMs) and Additional Security Measures (ASMs) 
for certain radioactive material. The requirements imposed by these 
Orders and the measures licensees have developed to comply with these 
Orders, were designated by the NRC as SGI and were not released to the 
public. These Orders included a local criminal history records check to 
determine trustworthiness and reliability of individuals seeking 
unescorted access to spent fuel storage facilities. ``Access'' means 
that an individual could exercise some physical control over the 
material or device. In accordance with Section 149 of the AEA, as 
amended by the EPAct, the Commission is imposing FBI criminal history 
records check requirements, as set forth in the Order for all 
individuals allowed unescorted access to protected areas, secure areas, 
and critical target areas, for certain spent fuel facility licensees. 
These requirements will remain in effect until the Commission 
determines otherwise. 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.

II

    Accordingly, pursuant to Sections 51, 53, 63, 81, 147, 149, 161b, 
161i, 161o, 182, and 186 of the AEA of 1954, as amended, and the 
Commission's regulations in 10 CFR 2.202, Parts 72 and 73, It is hereby 
ordered, effective immediately, that your specific license is modified 
as follows:
    A. PGE shall, within twenty (20) days of the date of this Order, 
establish and maintain a fingerprinting program that meets the 
requirements of the

[[Page 32336]]

Attachment to this Order, for unescorted access to spent fuel storage 
facilities.
    B. PGE shall, in writing, within twenty (20) days from the date of 
this Order, notify the Commission: (1) Of receipt and confirmation that 
compliance with the Order will be achieved, (2) if unable to comply 
with any of the requirements described in the Attachment, or (3) if 
compliance with any of the requirements are unnecessary in its specific 
circumstances. The notification shall provide PGE's justification for 
seeking relief from, or variation of, any specific requirement.
    C. In accordance with the NRC's ``Order Imposing Fingerprinting and 
Criminal History Records Check Requirements for Access to Safeguards 
Information,'' only an NRC-approved reviewing official shall review the 
results of a FBI criminal history records check. The reviewing official 
shall determine whether an individual may have, or continue to have, 
unescorted access to spent fuel storage facilities. Fingerprinting and 
the FBI identification and criminal history records check are not 
required for individuals that are exempted from fingerprinting 
requirements under 10 CFR 73.61 [72 FR 4945 (February 2, 2007)]. In 
addition, individuals who have had a favorably decided U.S. Government 
criminal history records check within the last five (5) years, or have 
an active Federal security clearance (provided in each case that the 
appropriate documentation is made available to PGE's reviewing 
official), have satisfied the EPAct fingerprinting requirement and need 
not be fingerprinted again.
    D. Fingerprints shall be submitted and reviewed in accordance with 
the procedures described in the Attachment to this Order. Individuals 
who have been fingerprinted and granted access to SGI by the reviewing 
official, under the NRC's Order No. EA-06-298 do not need to be 
fingerprinted again for purposes of authorizing unescorted access. No 
person may have access to SGI or unescorted access to any radioactive 
material or property subject to regulation by the NRC if the NRC has 
determined, in accordance with its administrative review process based 
on fingerprinting and an FBI identification and criminal history 
records check, either that the person may not have access to SGI or 
that the person may not have unescorted access to radioactive material 
or property subject to regulation by the NRC.
    E. PGE may allow any individual who currently has unescorted access 
to spent fuel storage facilities, in accordance with the ICM and ASM 
Security Orders, to continue to have unescorted access, pending a 
decision by the reviewing official (based on fingerprinting, an FBI 
criminal history records check, and a trustworthiness and reliability 
determination) that the individual may continue to have unescorted 
access to spent fuel storage facilities. PGE shall complete 
implementation of the requirements of the Attachment to this Order 
within ninety (90) days from the date of issuance of this Order.
    PGE responses to Condition B, shall be submitted to the Director, 
Office of Nuclear Material Safety and Safeguards, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555. In addition, licensee 
responses are security-related information or official use-only and 
shall be properly marked.
    The Director, Office of Nuclear Material Safety and Safeguards, 
may, in writing, relax or rescind any of the above conditions upon 
demonstration of good cause by PGE.

III

    In accordance with 10 CFR 2.202, PGE must, and any other person 
adversely affected by this Order, may, submit an answer to this Order, 
and may request a hearing regarding this Order, within twenty (20) days 
from the date of this Order. Where good cause is shown, consideration 
will be given to extending the time, to either submit an answer, or 
request a hearing. A request for extension of time in which to submit 
an answer or request a hearing must be made in writing to the Director, 
Office of Nuclear Material Safety and Safeguards, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, and include a statement of 
good cause for the extension. The answer may consent to this Order. 
Unless the answer consents to this Order, the answer shall, in writing 
and under oath or affirmation, specifically set forth the matters of 
fact and law of which PGE, or any other person adversely affected 
relies and the reasons as to why the Order should not have been issued. 
Any answer or request for a hearing shall be submitted to the 
Secretary, Office of the Secretary, U.S. Nuclear Regulatory Commission, 
ATTN: Rulemakings and Adjudications Staff, Washington, DC 20555. Copies 
shall also be sent to the Director, Office of Nuclear Material Safety 
and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 
20555; to the Assistant General Counsel for Materials Litigation and 
Enforcement at the same address; and to PGE, if the answer or hearing 
request is by an individual other than PGE. Because of possible delays 
in delivery of mail to United States Government offices, it is 
requested that answers and requests for hearing be transmitted to the 
Secretary of the Commission, either by means of facsimile transmission 
to (301) 415-1101, or via e-mail to <a href="/cdn-cgi/l/email-protection#523a3733203b3c35363d31393726123c20317c353d24"><span class="__cf_email__" data-cfemail="244c4145564d4a43404b474f4150644a56470a434b52">[email protected]</span></a>, and also to 
the Office of the General Counsel, either by means of facsimile 
transmission to (301) 415-3725, or via e-mail to <a href="/cdn-cgi/l/email-protection#eaa5ada9a78b8386a98f849e8f98aa849889c48d859c"><span class="__cf_email__" data-cfemail="420d05010f232b2e01272c362730022c30216c252d34">[email protected]</span></a>. 
If a person other than PGE requests a hearing, that person shall set 
forth, with particularity, the manner in which his/her interest is 
adversely affected by this Order and shall address the criteria set 
forth in 10 CFR 2.309.
    If a hearing is requested by PGE or an individual whose interest is 
adversely affected, the Commission will issue an Order designating the 
time and place of a 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), PGE may, in addition to 
demanding a hearing, at the time the answer is filed, or sooner, move 
that the presiding officer set aside the immediate effectiveness of the 
Order on the grounds that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence, but on mere 
suspicion, unfounded allegations, or error.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, the provisions, as 
specified above in Section III, shall be final twenty (20) days from 
the date of this Order without further Order or proceedings.
    If an extension of time for requesting a hearing has been approved, 
the provisions as specified above in Section III shall be final when 
the extension expires, if a hearing request has not been received. An 
answer or a request for a hearing shall not stay the immediate 
effectiveness of this order.

    Dated: May 29, 2007.

    For the Nuclear Regulatory Commission.
Michael F. Weber,
Director, Office of Nuclear Material, Safety and Safeguards.

Requirements for Fingerprinting and Criminal History Records; Checks of 
Individuals When Licensee's Reviewing Official Is Determining 
Unescorted Access to Spent Fuel Storage Facilities

General Requirements

    Licensees shall comply with the following requirements of this 
Attachment.
    1. Each licensee subject to the provisions of this Attachment shall 
fingerprint each individual who is

[[Page 32337]]

seeking or permitted unescorted access to the spent fuel storage 
facility. 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 for unescorted access 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 73.61 for unescorted access, has had 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 that 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 
unescorted access to the spent fuel storage facility associated with 
the licensee's activities.
    4. All fingerprints obtained by the licensee, pursuant to this 
Order, must be submitted to the Commission for transmission to the FBI.
    5. The licensee shall review the information received from the FBI 
and consider it, in conjunction with the trustworthiness and 
reliability requirements established by the previous ICM and ASM 
Security Orders, in making a determination whether to grant, or 
continue to allow, unescorted access to the spent fuel storage 
facility.
    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 unescorted access to the spent fuel 
storage facility.
    7. The licensee shall document the basis for its determination 
whether to grant, or continue to allow, unescorted access to the spent 
fuel storage facility.

Prohibitions

    A licensee shall not base a final determination to deny an 
individual access to the spent fuel storage facility solely on 
information received from the FBI, involving an arrest more than one 
(1) year old, for which there is no information as to 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 records 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 that 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 
Nuclear Regulatory Commission's (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 unescorted access to 
the spent fuel storage facility, to the Director of the Division of 
Facilities and Security, marked for the attention of the Division's 
Criminal History Check Section. Copies of these forms may be obtained 
by writing the Office of Information Services, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, by calling (301) 415-5877, or 
via e-mail to <a href="/cdn-cgi/l/email-protection#50363f223d23103e22337e373f26"><span class="__cf_email__" data-cfemail="84e2ebf6e9f7c4eaf6e7aae3ebf2">[email protected]</span></a>. 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 resubmission if the initial 
submission is returned by the FBI because the fingerprint impressions 
cannot be classified. The one free resubmission must have the FBI 
Transaction Control Number reflected on the resubmission. If additional 
submissions are necessary, they will be treated as initial submittals 
and will require a second payment of the processing fee.
    Fees for processing fingerprint checks are due upon application. 
Licensees shall submit payment with the application for processing 
fingerprints by corporate check, certified check, cashier's check, 
money order, or electronic payment, made payable to ``U.S. NRC.'' [For 
guidance on making electronic payments, contact the Facilities Security 
Branch, Division of Facilities and Security, at (301) 415-7404]. 
Combined payment for multiple applications is acceptable. The 
application fee (currently $27) is the sum of the user fee charged by 
the FBI for each fingerprint card or other fingerprint record submitted 
by the NRC on behalf of a licensee, and an NRC processing fee, which 
covers administrative costs associated with NRC handling of licensee 
fingerprint submissions. The Commission will directly notify licensees, 
who are subject to this regulation of any fee changes.
    The Commission will forward, to the submitting licensee, all data 
received from the FBI as a result of the licensee's application(s) for 
criminal history records checks, including the FBI fingerprint record.

Right To Correct and Complete Information

    Prior to any final adverse determination, the licensee shall make 
available, to the individual, the contents of any criminal records. 
obtained from the FBI, for the purpose of assuring correct and complete 
information. Written confirmation by the individual of receipt of this 
notification must be maintained by the licensee for a period of one (1) 
year from the date of the notification.
    If, after reviewing the record, an individual believes that the 
record is incorrect or incomplete in any respect and wishes to change, 
correct, or update the alleged deficiency, or to explain any matter in 
the record, the individual may initiate challenge procedures. These 
procedures include either direct application, by the individual 
challenging the record, to the agency (i.e., law enforcement agency) 
that contributed the questioned information, or direct challenge as to 
the accuracy or completeness of any entry on the criminal history 
record to the Assistant Director, Federal Bureau of Investigation 
Identification Division, Washington, DC 20537-9700 (as set forth in 28 
CFR 16.30 through 16.34). In the latter case, the FBI forwards the 
challenge to the agency that submitted the data and requests that 
agency to verify or correct the challenged entry. Upon receipt of an 
official communication directly from the agency that contributed the 
original information, the FBI Identification Division makes any changes 
necessary, in accordance with the information supplied by that agency. 
The licensee must allow at least ten (10) days for an individual to 
initiate an action

[[Page 32338]]

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 determination for unescorted access to the spent fuel storage 
facility based on the criminal history records check, only upon receipt 
of the FBI's ultimate confirmation or correction of the record. Upon a 
final adverse determination for unescorted access to the spent fuel 
storage facility, the licensee shall provide the individual its 
documented basis for denial. During the review process for assuring 
correct and complete information, unescorted access to the spent fuel 
storage facility shall not be granted to an individual.

Protection of Information

    1. Each licensee that obtains a criminal records check for 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 nor 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 unescorted access to the spent fuel storage facility. No 
individual authorized to have access to the information may 
redisseminate 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 records check may be transferred to another licensee 
if the licensee holding the criminal history record receives the 
individual's written request to redisseminate 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 NRC 
representative, 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 denial to unescorted access to the spent fuel storage facility. 
After the required three (3) year period, these documents shall be 
destroyed by a method that will prevent reconstruction of the 
information in whole, or in part.

[FR Doc. 07-2879 Filed 6-11-07; 8:45 am]
BILLING CODE 7590-01-M


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