[Federal Register: September 19, 2006 (Volume 71, Number 181)]
[Notices]
[Page 54845-54849]
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NUCLEAR REGULATORY COMMISSION
[EA-06-193]
In the Matter of Louisiana Energy Services L.P. (National
Enrichment Facility) and All Other Persons Who Seek or Obtain Access to
Safeguards Information Described Herein; Order Imposing Requirements
for the Protection of Safeguards Information and Access to New
Safeguards Information (Effective Immediately)
I
Louisiana Energy Services, L.P., (LES or the Licensee) holds a
license, issued in accordance with the Atomic Energy Act (AEA) of 1954,
by the U.S. Nuclear Regulatory Commission (NRC or Commission)
authorizing it to construct and operate a uranium enrichment facility
in Lea County, New Mexico. On March 19, 2004, in accordance with
Commission direction in Staff Requirements Memorandum SECY-03-0083, NRC
provided LES, for its information, copies of Orders issued to Category
III facilities on interim measures to enhance physical security at
those facilities. Those Orders contained Safeguards Information \1\. In
addition, in the future, the Commission may issue the Licensee
additional Orders that require compliance with specific Additional
Security Measures to enhance the security. These Orders are also
expected to contain Safeguards Information, which cannot be released to
the public and must be protected from unauthorized disclosure.
Therefore, the Commission is imposing the requirements, as set forth in
Attachments A and B of this Order, 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\ 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.
\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
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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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 person who is
to be permitted to have access to Safeguards Information. The NRC's
implementation of this requirement cannot await the completion of the
Safeguards Information rulemaking, which is under way, because the
EPAct fingerprinting and criminal history check requirements for access
to Safeguards Information were immediately effective upon enactment of
the EPAct. Although the EPAct 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)), it is unlikely that many Licensee employees are excepted from
the fingerprinting requirement by the ``fingerprinting relief'' rule.
Individuals relieved from the fingerprinting and criminal history
checks under the relief rule include Federal, State, and local
officials and law enforcement personnel; Agreement State inspectors,
who conduct security inspections on behalf of the NRC; members of
Congress and certain employees of members of Congress or Congressional
Committees; representatives of the International Atomic Energy Agency
or certain foreign government organizations. In addition, individuals
who have active Federal security clearances and have satisfied the
EPAct fingerprinting requirement need not be fingerprinted again.
Therefore, in accordance with Section 149 of the AEA, as amended by the
EPAct, the Commission is imposing additional requirements, as set forth
by this Order, for access to new Safeguards Information \3\ by any
person, from any person, whether or not a Licensee, Applicant, or
Certificate Holder of the Commission or Agreement States.
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\3\ ``New Safeguards Information'' means Safeguards Information
generated subsequent to August 8, 2005, the date of enactment of the
EPAct. ``New Safeguards Information'' also means any Safeguards
Information, regardless of when it was generated, that is being
accessed by an individual who has never been previously granted
access to Safeguards Information.
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II
The Commission has broad statutory authority to protect Safeguards
Information and prohibit its unauthorized disclosure. Section 147 of
the AEA, as amended, grants the Commission explicit authority to ``* *
* issue such orders, as necessary
[[Page 54846]]
to prohibit the unauthorized disclosure of safeguards information * *
*'' Furthermore, Section 652 of the EPAct amended Section 149 of the
AEA to require fingerprinting and an FBI identification and a criminal
history records check of each individual who seeks access to Safeguards
Information. 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 A and B. The Commission hereby
provides notice that it intends to treat violations of the requirements
contained in Attachments A and B, 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 a need-to-
know the information, and are considered to be trustworthy and
reliable, and who satisfy the fingerprinting and criminal history
records check required by the EPAct and this Order. 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 A and B. 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, maintain,
and implement their own acceptable policies and procedures. The
Licensee remains responsible for the conduct of its contractors. The
policies and procedures necessary to ensure compliance with applicable
requirements contained in Attachments A and B must address, at a
minimum, the following: (1) The general performance requirement that
each person who produces, receives, or acquires Safeguards Information
shall ensure that Safeguards Information is protected against
unauthorized disclosure; (2) protection of Safeguards Information at
fixed sites, in use and in storage, and while in transit; (3)
correspondence containing Safeguards Information; (4) access to
Safeguards Information; (5) preparation, marking, reproduction, and
destruction of documents; (6) external transmission of documents; (7)
use of automatic data processing systems; and (8) removal of the
Safeguards Information category.
To provide assurance that the Licensee is implementing appropriate
measures to achieve a consistent level of protection to prohibit the
unauthorized disclosure of new Safeguards Information, the Licensee
shall implement the fingerprinting and criminal history check
requirements for access to new Safeguards Information in this Order, as
well as the requirements in Attachments A and B 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 53, 62, 63, 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 part 30, 10
CFR part 40, and 10 CFR part 70, it is hereby ordered, effective
immediately, that licensee and all other persons who produce, receive,
or acquire the additional security measures identified above (whether
draft or final), or who seek or obtain access to new safeguards
information, shall comply with the requirements set forth in this
Order, including the requirements in Attachments A and B.
A. No person may have access to new Safeguards Information unless
that person has a need-to-know the new Safeguards Information, has been
fingerprinted and undergone an FBI identification and criminal history
records check, which has been favorably decided, and satisfies all
other applicable requirements for access to Safeguards Information.
Fingerprinting and the FBI identification and criminal history records
check are not required, however, for any person who is relieved from
that requirement by 10 CFR 73.59 (71 FR 33989 (June 13, 2006)) or who
has an active Federal security clearance.
B. No person may provide new Safeguards Information to any other
person except in accordance with condition III.A above. Prior to
sharing new Safeguards Information with any other person, a copy of
this Order shall be provided to that person.
IV
The Director, Office of Nuclear Material Safety and Safeguards,
may, in writing, relax or rescind any of the above conditions, on
demonstration of good cause by the Licensee. 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, and may request a
hearing on this Order, within twenty (20) days of the date of this
Order. Where good cause is shown, consideration will be given to
extending the time to 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 on which the Licensee or 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 also shall 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 the
Licensee, if the answer or hearing request is by a person other than
the Licensee. 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 by e-mail, to
hearingdocket@nrc.gov; and also to the Office of the General Counsel,
either by means of facsimile transmission, to 301-415-3725, or by e-
mail, to OGCMailCenter@nrc.gov. If a person other than the Licensee
requests a hearing, that person shall set forth with particularity the
manner in which their 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 the Licensee or a person whose
interest is
[[Page 54847]]
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
demanding 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 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 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 28th day of August 2006.
For the Nuclear Regulatory Commission.
Jack R. Strosnider,
Director, Office of Nuclear Material Safety and Safeguards.
Attachment A--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 fall under this
requirement if they possess 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 SGI-M
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 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 must 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:
1. An employee, agent, or contractor of an applicant, a licensee,
the Commission, or the United States Government;
2. A member of a duly authorized committee of the Congress;
3. The Governor of a State or his designated representative;
4. 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;
5. A member of a state or local law enforcement authority that is
responsible for responding to requests for assistance during safeguards
emergencies;
6. 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; or
7. 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 the individuals in
group (A). 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
[[Page 54848]]
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 nationwide overnight service with computer tracking features,
U.S. 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 opague
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 ``Safeguards Information-Modified Handling.''
In addition to the ``Safeguards Information-Modified Handling''
markings at the top and bottom of 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 any information in memory,
the copier cannot be connected to a network. It should also be placed
in a location that is cleared
[[Page 54849]]
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 must 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 information. Word processors such as typewriters are
not subject to the requirements as long as they do not transmit
information off-site. (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. 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. The National Institute of Standards and Technology
(NIST) maintains a listing of all validated encryption systems at
http://csrc.nist.gov/cryptval/140-1/1401val.htm.
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 ensure 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 must 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 are considered
completely destroyed.
Attachment B--Trustworthiness and Reliability Requirements for
Individuals Handling Safeguards Information
Licensees shall document the basis for concluding that there is
reasonable assurance that individuals granted access to safeguards
information or who are placed in positions where they could facilitate
access to the regulated material are trustworthy and reliable, and do
not constitute an unreasonable risk for malevolent use of the regulated
material.
The trustworthiness, reliability, and verification of an
individual's true identity shall be determined based on a background
investigation. The background investigation shall address at least the
past three (3) years, and, as a minimum, include a local criminal
history check (unless local or State laws prohibit local criminal
history checks of current employees), verification of employment
history, education, employment eligibility, and personal references. 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.
[FR Doc. 06-7742 Filed 9-18-06; 8:45 am]
BILLING CODE 7590-01-P
