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), 37990-37993 [E8-14958]
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37990
Federal Register / Vol. 73, No. 128 / Wednesday, July 2, 2008 / Notices
A copy of the final supporting
statement may be viewed free of charge
at the NRC Public Document Room, One
White Flint North, 11555 Rockville
Pike, Room O–1 F21, Rockville, MD
20852. OMB clearance requests are
available at the NRC worldwide web
site: https://www.nrc.gov/public-involve/
doc-comment/omb/. The
document will be available on the NRC
home page site for 60 days after the
signature date of this notice. Comments
and questions should be directed to the
OMB reviewer listed below by August 1,
2008. Comments received after this date
will be considered if it is practical to do
so, but assurance of consideration
cannot be given to comments received
after this date. Nathan J. Frey, Office of
Information and Regulatory Affairs
(3150–0026), NEOB–10202, Office of
Management and Budget, Washington,
DC 20503.
Comments can also be e-mailed to
Nathan_J._Frey@omb.eop.gov or
submitted by telephone at (202) 395–
7345.
The NRC Clearance Officer is
Margaret A. Janney, (301) 415–7245.
Dated at Rockville, Maryland, this 24th day
of June, 2008.
For the Nuclear Regulatory Commission.
Gregory Trussell,
Acting NRC Clearance Officer, Office of
Information Services.
[FR Doc. E8–14971 Filed 7–1–08; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[EA–08–162]
In the Matter of Licensee Identified in
Attachment 1 and All Other Persons
Who Seek or Obtain Access to
Safeguards Information Described
Herein; Order Imposing Fingerprinting
and Criminal History Records Check
Requirements for Access to
Safeguards Information (Effective
Immediately)
jlentini on PROD1PC65 with NOTICES
I
The Licensee identified in
Attachment 1 1 to this Order, holds a
license issued in accordance with the
Atomic Energy Act (AEA) of 1954, as
amended, by the U.S. Nuclear
Regulatory Commission (NRC or
Commission), authorizing them to
engage in an activity subject to
regulation by the Commission or
Agreement States. In accordance with
Section 149 of the AEA, fingerprinting
1 Attachment 1 contains sensitive information
and will not be released to the public.
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18:51 Jul 01, 2008
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and a Federal Bureau of Investigation
(FBI) identification and criminal history
records check are required of any person
who is to be permitted to have access to
Safeguards Information (SGI).2 The
NRC’s implementation of this
requirement cannot await the
completion of the SGI rulemaking,
which is underway. Although the AEA
permits the Commission by rule to
except certain categories of individuals
from the fingerprinting requirement,
which the Commission has done (see 10
CFR Part 73.59, 71 FR 33,989 (June 13,
2006)), it is unlikely that licensee
employees or others are excepted from
the fingerprinting requirement by the
‘‘fingerprinting relief’’ rule. Individuals
relieved from fingerprinting and
criminal history records checks under
the relief rule include Federal, State,
and local officials and law enforcement
personnel; Agreement State inspectors
who conduct security inspections on
behalf of the NRC; members of Congress
and certain employees of members of
Congress or Congressional Committees,
and representatives of the International
Atomic Energy Agency (IAEA) or certain
foreign government organizations. In
addition, individuals who have a
favorably-decided U.S. Government
criminal history records check within
the last five (5) years, or individuals
who have active federal security
clearances (provided in either case that
they make available the appropriate
documentation), have satisfied the AEA
fingerprinting requirement and need not
be fingerprinted again. Therefore, in
accordance with Section 149 of the AEA
the Commission is imposing additional
requirements for access to SGI, as set
forth by this Order, so that affected
licensees can obtain and grant access to
SGI. This Order also imposes
requirements for access to SGI by any
person, from any person,3 whether or
not a Licensee, Applicant, or Certificate
Holder of the Commission or Agreement
States.
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.
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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-toknow the information and satisfies the
trustworthy and reliability requirements
described in Attachment 3 to Order EA–
08–161.
In order to provide assurance that the
Licensees identified in Attachment 1 to
this Order are implementing appropriate
measures to comply with the
fingerprinting and criminal history
records check requirements for access to
SGI, all Licensees identified in
Attachment 1 to this Order shall
implement the requirements of this
Order. In addition, pursuant to 10 CFR
2.202, I find that in light of the common
defense and security matters identified
above, which warrant the issuance of
this Order, the public health, safety and
interest require that this Order be
effective immediately.
III
Accordingly, pursuant to Sections 81,
147, 149, 161b, 161i, 161o, 182 and 186
of the Atomic Energy Act of 1954, as
amended, and the Commission’s
regulations in 10 CFR 2.202, 10 CFR
Parts 30 and 73, it is hereby ordered,
effective immediately, that all licensees
identified in attachment 1 to this order
and all other persons who seek or obtain
access to safeguards information, as
described above, shall comply with the
requirements set forth in this order.
A. 1. No person may have access to
SGI unless that person has a need-toknow the SGI, has been fingerprinted or
who has a favorably-decided FBI
identification and criminal history
records check, and satisfies all other
applicable requirements for access to
SGI. Fingerprinting and the FBI
identification and criminal history
records check are not required,
however, for any person who is relieved
from that requirement by 10 CFR 73.59
(71 FR 33,989 (June 13, 2006)), or who
has a favorably-decided U.S.
Government criminal history records
check within the last five (5) years, or
who has an active federal security
clearance, provided in the latter two
cases that the appropriate
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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. All Licensees identified in
Attachment 1 to this Order shall comply
with the following requirements:
1. The Licensee shall, within twenty
(20) days of the date of this Order,
establish and maintain a fingerprinting
program that meets the requirements of
Attachment 2 to this Order.
2. The Licensee shall, within twenty
(20) days of the date of this Order,
submit the fingerprints of one (1)
individual who (a) the Licensee
nominates as the ‘‘reviewing official’’
for determining access to SGI by other
individuals, and (b) has an established
need-to-know the information and has
been determined to be trustworthy and
reliable in accordance with the
requirements described in Attachment 3
to Order EA–08–161. The NRC will
determine whether this individual (or
any subsequent reviewing official) may
have access to SGI and, therefore, will
be permitted to serve as the Licensee’s
reviewing official.4 The Licensee may,
at the same time or later, submit the
fingerprints of other individuals to
whom the Licensee seeks to grant access
to SGI or designate an additional
reviewing official(s). Fingerprints shall
be submitted and reviewed in
accordance with the procedures
described in Attachment 2 of this Order.
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
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.
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18:51 Jul 01, 2008
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Materials and Environmental
Management Programs, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555. In addition, Licensee
responses shall be marked as ‘‘SecurityRelated Information—Withhold Under
10 CFR 2.390.’’
The Director, Office of Federal and
State Materials and Environmental
Management Programs, may, in writing,
relax or rescind any of the above
conditions upon demonstration of good
cause by the Licensee.
IV
In accordance with 10 CFR 2.202, the
Licensee must, and any other person
adversely affected by this Order may,
submit an answer to this Order within
twenty (20) days of the date of this
Order. In addition, the Licensee and any
other person adversely affected by this
Order may request a hearing of this
Order within twenty (20) days of the
date of the Order. Where good cause is
shown, consideration will be given to
extending the time to request a hearing.
A request for extension of time must be
made, in writing, to the Director, Office
of Federal and State Materials and
Environmental Management Programs,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555, and include a
statement of good cause for the
extension.
The answer may consent to this
Order. If the answer includes a request
for a hearing, it shall, under oath or
affirmation, specifically set forth the
matters of fact and law on which the
Licensee relies and the reasons as to
why the Order should not have been
issued. If a person other than the
Licensee requests a hearing, that person
shall set forth with particularity the
manner in which his interest is
adversely affected by this Order and
shall address the criteria set forth in 10
CFR 2.309(d).
All documents filed in NRC
adjudicatory proceedings, including a
request for hearing, a petition for leave
to intervene, any motion or other
document filed in the proceeding prior
to the submission of a request for
hearing or petition to intervene, and
documents filed by interested
governmental entities participating
under 10 CFR 2.315(c), must be filed in
accordance with the NRC E–Filing rule,
which the NRC promulgated in August
2007, 72 FR 49139 (Aug. 28, 2007) and
codified in pertinent part at 10 CFR Part
2, Subpart B. The E–Filing process
requires participants to submit and
serve all adjudicatory documents over
the internet, or in some cases to mail
copies on electronic storage media.
Participants may not submit paper
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37991
copies of their filings unless they seek
a waiver in accordance with the
procedures described below.
To comply with the procedural
requirements associated with E–Filing,
at least ten (10) days prior to the filing
deadline the requestor must contact the
Office of the Secretary by e-mail at
HEARINGDOCKET@NRC.GOV, or by
calling (301) 415–1677, to request (1) a
digital ID certificate, which allows the
participant (or its counsel or
representative) to digitally sign
documents and access the E–Submittal
server for any NRC proceeding in which
it is participating; and/or (2) creation of
an electronic docket for the proceeding
(even in instances when the requestor
(or its counsel or representative) already
holds an NRC-issued digital ID
certificate). Each requestor will need to
download the Workplace Forms
ViewerTM to access the Electronic
Information Exchange (EIE), a
component of the E–Filing system. The
Workplace Forms ViewerTM is free and
is available at https://www.nrc.gov/sitehelp/e-submittals/install-viewer.html.
Information about applying for a digital
ID certificate also is available on NRC’s
public Web site at https://www.nrc.gov/
site-help/e-submittals/applycertificates.html.
Once a requestor has obtained a
digital ID certificate, had a docket
created, and downloaded the EIE
viewer, it can then submit a request for
a hearing through EIE. Submissions
should be in Portable Document Format
(PDF) in accordance with NRC guidance
available on the NRC public Web site at
https://www.nrc.gov/site-help/esubmittals.html. A filing is considered
complete at the time the filer submits its
document through EIE. To be timely,
electronic filings must be submitted to
the EIE system no later than 11:59 p.m.
Eastern Time on the due date. Upon
receipt of a transmission, the E–Filing
system time-stamps the document and
sends the submitter an e-mail notice
confirming receipt of the document. The
EIE system also distributes an e-mail
notice that provides access to the
document to the NRC Office of the
General Counsel and any others who
have advised the Office of the Secretary
that they wish to participate in the
proceeding, so that the filer need not
serve the document on those
participants separately. Therefore, any
others who wish to participate in the
proceeding (or their counsel or
representative) must apply for and
receive a digital ID certificate before a
hearing request is filed so that they may
obtain access to the document via the
E–Filing system.
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37992
Federal Register / Vol. 73, No. 128 / Wednesday, July 2, 2008 / Notices
A person filing electronically may
seek assistance through the ‘‘Contact
Us’’ link located on the NRC Web site
at https://www.nrc.gov/site-help/esubmittals.html or by calling the NRC
technical help line, which is available
between 8:30 a.m. and 4:15 p.m.,
Eastern Time, Monday through Friday.
The help line number is (800) 397–4209
or locally, (301) 415–4737.
Participants who believe that they
have good cause for not submitting
documents electronically must file a
motion, in accordance with 10 CFR
2.302(g), with their initial paper filing
requesting authorization to continue to
submit documents in paper format.
Such filings must be submitted by (1)
first class mail addressed to the Office
of the Secretary of the Commission, U.S.
Nuclear Regulatory Commission,
Washington, DC 20555–0001, Attention:
Rulemaking and Adjudications Staff; or
(2) courier, express mail, or expedited
delivery service to the Office of the
Secretary, Sixteenth Floor, One White
Flint North, 11555 Rockville, Pike,
Rockville, Maryland, 20852, Attention:
Rulemaking and Adjudications Staff.
Participants filing a document in this
manner are responsible for serving the
document on all other participants.
Filing is considered complete by firstclass mail as of the time of deposit in
the mail, or by courier, express mail, or
expedited delivery service upon
depositing the document with the
provider of the service.
Documents submitted in adjudicatory
proceedings will appear in NRC’s
electronic hearing docket which is
available to the public at https://
ehd.nrc.gov/EHD_Proceeding/home.asp,
unless excluded pursuant to an order of
the Commission, an Atomic Safety and
Licensing Board, or a Presiding Officer.
Participants are requested not to include
personal privacy information, such as
social security numbers, home
addresses, or home phone numbers in
their filings. With respect to copyrighted
works, except for limited excerpts that
serve the purpose of the adjudicatory
filings and would constitute a Fair Use
application, Participants are requested
not to include copyrighted materials in
their works.
If a hearing is requested by the
Licensee or a person whose interest is
adversely affected, the Commission will
issue an Order designating the time and
place of any hearing. If a hearing is held
the issue to be considered at such
hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the
Licensee may, in addition to requesting
a hearing, at the time the answer is filed
or sooner, move the presiding officer to
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18:51 Jul 01, 2008
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set aside the immediate effectiveness of
the Order on the ground that the Order,
including the need for immediate
effectiveness, is not based on adequate
evidence but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for
hearing, or written approval of an
extension of time in which to request a
hearing, the provisions specified in
Section III above shall be final twenty
(20) days from the date of this Order
without further order or proceedings. If
an extension of time for requesting a
hearing has been approved, the
provisions specified in Section III shall
be final when the extension expires if a
hearing request has not been received.
An answer or a request for hearing shall
not stay the immmediate effectiveness
of this order.
Dated this 18th day of June 2008.
For the Nuclear Regulatory Commission.
George Pangburn,
Acting Director, Office of Federal and State
Materials and Environmental Management
Programs.
Attachment 1: List of Applicable Materials
Licensees Redacted.
Attachment 2: Requirements for
Fingerprinting and Criminal History
Records Checks of Individuals When
Licensee’s Reviewing Official is Determining
Access to Safeguards Information
Requirements for Fingerprinting and
Criminal History Records Checks of
Individuals When Licensee’s Reviewing
Official is Determining Access to Safeguards
Information
General Requirements
Licensees shall comply with the
requirements of this attachment.
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 Part 73.59, has a
favorably-decided U.S. Government criminal
history records check within the last five (5)
years, or has an active federal security
clearance. Written confirmation from the
Agency/employer which granted the federal
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Sfmt 4703
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 previouslyobtained or new criminal history check and,
therefore, will be permitted to serve as the
Licensee’s reviewing official.
Prohibitions
A Licensee shall not base a final
determination to deny an individual access
to SGI solely on the basis of information
received from the FBI involving: An arrest
more than one (1) year old for which there
is no information of the disposition of the
case, or an arrest that resulted in dismissal
of the charge or an acquittal.
A Licensee shall not use information
received from a criminal history check
obtained pursuant to this Order in a manner
that would infringe upon the rights of any
individual under the First Amendment to the
Constitution of the United States, nor shall
the Licensee use the information in any way
which would discriminate among
individuals on the basis of race, religion,
national origin, sex, or age.
Procedures for Processing Fingerprint Checks
For the purpose of complying with this
Order, Licensees shall, using an appropriate
method listed in 10 CFR 73.4, submit to the
NRC’s Division of Facilities and Security,
Mail Stop T–6E46, one completed, legible
standard fingerprint card (Form FD–258,
ORIMDNRCOOOZ) or, where practicable,
other fingerprint records for each individual
seeking access to Safeguards Information, to
the Director of the Division of Facilities and
Security, marked for the attention of the
Division’s Criminal History Check Section.
Copies of these forms may be obtained by
writing the Office of Information Services,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555, by calling (301) 415–
7232, or by e-mail to forms.resource@nrc.gov.
Practicable alternative formats are set forth in
10 CFR 73.4. The Licensee shall establish
procedures to ensure that the quality of the
fingerprints taken results in minimizing the
rejection rate of fingerprint cards due to
illegible or incomplete cards.
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The NRC will review submitted fingerprint
cards for completeness. Any Form FD–258
fingerprint record containing omissions or
evident errors will be returned to the
Licensee for corrections. The fee for
processing fingerprint checks includes one
re-submission if the initial submission is
returned by the FBI because the fingerprint
impressions cannot be classified. The one
free resubmission must have the FBI
Transaction Control Number reflected on the
re-submission. If additional submissions are
necessary, they will be treated as initial
submittals and will require a second payment
of the processing fee.
Fees for processing fingerprint checks are
due upon application. Licensees shall submit
payment with the application for processing
fingerprints by corporate check, certified
check, cashier’s check, money order, or
electronic payment, made payable to ‘‘U.S.
NRC.’’ [For guidance on making electronic
payments, contact the Facilities Security
Branch, Division of Facilities and Security, at
(301) 415–7404]. Combined payment for
multiple applications is acceptable. The
application fee (currently $27) is the sum of
the user fee charged by the FBI for each
fingerprint card or other fingerprint record
submitted by the NRC on behalf of a
Licensee, and an NRC processing fee, which
covers administrative costs associated with
NRC handling of Licensee fingerprint
submissions. The Commission will directly
notify Licensees who are subject to this
regulation of any fee changes.
The Commission will forward to the
submitting Licensee all data received from
the FBI as a result of the Licensee’s
application(s) for criminal history records
checks, including the FBI fingerprint record.
Right To Correct and Complete Information
Prior to any final adverse determination,
the Licensee shall make available to the
individual the contents of any criminal
records obtained from the FBI for the purpose
of assuring correct and complete information.
Written confirmation by the individual of
receipt of this notification must be
maintained by the Licensee for a period of
one (1) year from the date of the notification.
If, after reviewing the record, an individual
believes that it is incorrect or incomplete in
any respect and wishes to change, correct, or
update the alleged deficiency, or to explain
any matter in the record, the individual may
initiate challenge procedures. These
procedures include either direct application
by the individual challenging the record to
the agency (i.e., law enforcement agency) that
contributed the questioned information, or
direct challenge as to the accuracy or
completeness of any entry on the criminal
history record to the Assistant Director,
Federal Bureau of Investigation Identification
Division, Washington, DC 20537–9700 (as set
forth in 28 CFR Part 16.30 through 16.34). In
the latter case, the FBI forwards the challenge
to the agency that submitted the data and
requests that agency to verify or correct the
challenged entry. Upon receipt of an official
communication directly from the agency that
contributed the original information, the FBI
Identification Division makes any changes
necessary in accordance with the information
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18:51 Jul 01, 2008
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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 redisseminate the information to any other
individual who does not have a need-toknow.
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.
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37993
NUCLEAR REGULATORY
COMMISSION
[EA–08–161]
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 Commission),
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–08–162, 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.
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
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.
E:\FR\FM\02JYN1.SGM
02JYN1
Agencies
[Federal Register Volume 73, Number 128 (Wednesday, July 2, 2008)]
[Notices]
[Pages 37990-37993]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14958]
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[EA-08-162]
In the Matter of Licensee Identified in Attachment 1 and All
Other Persons Who Seek or Obtain Access to Safeguards Information
Described Herein; Order Imposing Fingerprinting and Criminal History
Records Check Requirements for Access to Safeguards Information
(Effective Immediately)
I
The Licensee identified in Attachment 1 \1\ to this Order, holds a
license issued in accordance with the Atomic Energy Act (AEA) of 1954,
as amended, by the U.S. Nuclear Regulatory Commission (NRC or
Commission), authorizing them to engage in an activity subject to
regulation by the Commission or Agreement States. In accordance with
Section 149 of the AEA, fingerprinting and a Federal Bureau of
Investigation (FBI) identification and criminal history records check
are required of any person who is to be permitted to have access to
Safeguards Information (SGI).\2\ The NRC's implementation of this
requirement cannot await the completion of the SGI rulemaking, which is
underway. Although the AEA permits the Commission by rule to except
certain categories of individuals from the fingerprinting requirement,
which the Commission has done (see 10 CFR Part 73.59, 71 FR 33,989
(June 13, 2006)), it is unlikely that licensee employees or others are
excepted from the fingerprinting requirement by the ``fingerprinting
relief'' rule. Individuals relieved from fingerprinting and criminal
history records checks under the relief rule include Federal, State,
and local officials and law enforcement personnel; Agreement State
inspectors who conduct security inspections on behalf of the NRC;
members of Congress and certain employees of members of Congress or
Congressional Committees, and representatives of the International
Atomic Energy Agency (IAEA) or certain foreign government
organizations. In addition, individuals who have a favorably-decided
U.S. Government criminal history records check within the last five (5)
years, or individuals who have active federal security clearances
(provided in either case that they make available the appropriate
documentation), have satisfied the AEA fingerprinting requirement and
need not be fingerprinted again. Therefore, in accordance with Section
149 of the AEA the Commission is imposing additional requirements for
access to SGI, as set forth by this Order, so that affected licensees
can obtain and grant access to SGI. This Order also imposes
requirements for access to SGI by any person, from any person,\3\
whether or not a Licensee, Applicant, or Certificate Holder of the
Commission or Agreement States.
---------------------------------------------------------------------------
\1\ Attachment 1 contains sensitive information and will not be
released to the public.
\2\ Safeguards Information is a form of sensitive, unclassified,
security-related information that the Commission has the authority
to designate and protect under section 147 of the AEA.
\3\ Person means (1) any individual, corporation, partnership,
firm, association, trust, estate, public or private institution,
group, government agency other than the Commission or the Department
of Energy, except that the Department of Energy shall be considered
a person with respect to those facilities of the Department of
Energy specified in section 202 of the Energy Reorganization Act of
1974 (88 Stat. 1244), any State or any political subdivision of, or
any political entity within a State, any foreign government or
nation or any political subdivision of any such government or
nation, or other entity; and (2) any legal successor,
representative, agent, or agency of the foregoing.
---------------------------------------------------------------------------
II
The Commission has broad statutory authority to protect and
prohibit the unauthorized disclosure of SGI. Section 147 of the AEA
grants the Commission explicit authority to issue such Orders as
necessary to prohibit the unauthorized disclosure of SGI. Furthermore,
Section 149 of the AEA requires fingerprinting and an FBI
identification and a criminal history records check of each individual
who seeks access to SGI. In addition, no person may have access to SGI
unless the person has an established need-to-know the information and
satisfies the trustworthy and reliability requirements described in
Attachment 3 to Order EA-08-161.
In order to provide assurance that the Licensees identified in
Attachment 1 to this Order are implementing appropriate measures to
comply with the fingerprinting and criminal history records check
requirements for access to SGI, all Licensees identified in Attachment
1 to this Order shall implement the requirements of this Order. In
addition, pursuant to 10 CFR 2.202, I find that in light of the common
defense and security matters identified above, which warrant the
issuance of this Order, the public health, safety and interest require
that this Order be effective immediately.
III
Accordingly, pursuant to Sections 81, 147, 149, 161b, 161i, 161o,
182 and 186 of the Atomic Energy Act of 1954, as amended, and the
Commission's regulations in 10 CFR 2.202, 10 CFR Parts 30 and 73, it is
hereby ordered, effective immediately, that all licensees identified in
attachment 1 to this order and all other persons who seek or obtain
access to safeguards information, as described above, shall comply with
the requirements set forth in this order.
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 FR 33,989 (June 13, 2006)), or who
has a favorably-decided U.S. Government criminal history records check
within the last five (5) years, or who has an active federal security
clearance, provided in the latter two cases that the appropriate
[[Page 37991]]
documentation is made available to the Licensee's NRC-approved
reviewing official described in paragraph III.C.2 of this Order.
2. No person may have access to any SGI if the NRC has determined,
based on fingerprinting and an FBI identification and criminal history
records check, that the person may not have access to SGI.
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. All Licensees identified in Attachment 1 to this Order shall
comply with the following requirements:
1. The Licensee shall, within twenty (20) days of the date of this
Order, establish and maintain a fingerprinting program that meets the
requirements of Attachment 2 to this Order.
2. The Licensee shall, within twenty (20) days of the date of this
Order, submit the fingerprints of one (1) individual who (a) the
Licensee nominates as the ``reviewing official'' for determining access
to SGI by other individuals, and (b) has an established need-to-know
the information and has been determined to be trustworthy and reliable
in accordance with the requirements described in Attachment 3 to Order
EA-08-161. The NRC will determine whether this individual (or any
subsequent reviewing official) may have access to SGI and, therefore,
will be permitted to serve as the Licensee's reviewing official.\4\ The
Licensee may, at the same time or later, submit the fingerprints of
other individuals to whom the Licensee seeks to grant access to SGI or
designate an additional reviewing official(s). Fingerprints shall be
submitted and reviewed in accordance with the procedures described in
Attachment 2 of this Order.
---------------------------------------------------------------------------
\4\ The NRC's determination of this individual's access to SGI
in accordance with the process described in Enclosure 5 to the
transmittal letter of this Order is an administrative determination
that is outside the scope of this Order.
---------------------------------------------------------------------------
3. The Licensee shall, in writing, within twenty (20) days of the
date of this Order, notify the Commission, (1) if it is unable to
comply with any of the requirements described in this Order, including
Attachment 2 to this Order, or (2) if compliance with any of the
requirements is unnecessary in its specific circumstances. The
notification shall provide the Licensee's justification for seeking
relief from or variation of any specific requirement.
Licensee responses to C.1., C.2., and C.3. above shall be submitted
to the Director, Office of Federal and State Materials and
Environmental Management Programs, U.S. Nuclear Regulatory Commission,
Washington, DC 20555. In addition, Licensee responses shall be marked
as ``Security-Related Information--Withhold Under 10 CFR 2.390.''
The Director, Office of Federal and State Materials and
Environmental Management Programs, may, in writing, relax or rescind
any of the above conditions upon demonstration of good cause by the
Licensee.
IV
In accordance with 10 CFR 2.202, the Licensee must, and any other
person adversely affected by this Order may, submit an answer to this
Order within twenty (20) days of the date of this Order. In addition,
the Licensee and any other person adversely affected by this Order may
request a hearing of this Order within twenty (20) days of the date of
the Order. Where good cause is shown, consideration will be given to
extending the time to request a hearing. A request for extension of
time must be made, in writing, to the Director, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555, and include a statement of
good cause for the extension.
The answer may consent to this Order. If the answer includes a
request for a hearing, it shall, under oath or affirmation,
specifically set forth the matters of fact and law on which the
Licensee relies and the reasons as to why the Order should not have
been issued. If a person other than the Licensee requests a hearing,
that person shall set forth with particularity the manner in which his
interest is adversely affected by this Order and shall address the
criteria set forth in 10 CFR 2.309(d).
All documents filed in NRC adjudicatory proceedings, including a
request for hearing, a petition for leave to intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and documents filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule, which the NRC
promulgated in August 2007, 72 FR 49139 (Aug. 28, 2007) and codified in
pertinent part at 10 CFR Part 2, Subpart B. The E-Filing process
requires participants to submit and serve all adjudicatory documents
over the internet, or in some cases to mail copies on electronic
storage media. Participants may not submit paper copies of their
filings unless they seek a waiver in accordance with the procedures
described below.
To comply with the procedural requirements associated with E-
Filing, at least ten (10) days prior to the filing deadline the
requestor must contact the Office of the Secretary by e-mail at
HEARINGDOCKET@NRC.GOV, or by calling (301) 415-1677, to request (1) a
digital ID certificate, which allows the participant (or its counsel or
representative) to digitally sign documents and access the E-Submittal
server for any NRC proceeding in which it is participating; and/or (2)
creation of an electronic docket for the proceeding (even in instances
when the requestor (or its counsel or representative) already holds an
NRC-issued digital ID certificate). Each requestor will need to
download the Workplace Forms ViewerTM to access the
Electronic Information Exchange (EIE), a component of the E-Filing
system. The Workplace Forms ViewerTM is free and is
available at https://www.nrc.gov/site-help/e-submittals/install-
viewer.html. Information about applying for a digital ID certificate
also is available on NRC's public Web site at https://www.nrc.gov/site-
help/e-submittals/apply-certificates.html.
Once a requestor has obtained a digital ID certificate, had a
docket created, and downloaded the EIE viewer, it can then submit a
request for a hearing through EIE. Submissions should be in Portable
Document Format (PDF) in accordance with NRC guidance available on the
NRC public Web site at https://www.nrc.gov/site-help/e-submittals.html.
A filing is considered complete at the time the filer submits its
document through EIE. To be timely, electronic filings must be
submitted to the EIE system no later than 11:59 p.m. Eastern Time on
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming
receipt of the document. The EIE system also distributes an e-mail
notice that provides access to the document to the NRC Office of the
General Counsel and any others who have advised the Office of the
Secretary that they wish to participate in the proceeding, so that the
filer need not serve the document on those participants separately.
Therefore, any others who wish to participate in the proceeding (or
their counsel or representative) must apply for and receive a digital
ID certificate before a hearing request is filed so that they may
obtain access to the document via the E-Filing system.
[[Page 37992]]
A person filing electronically may seek assistance through the
``Contact Us'' link located on the NRC Web site at https://www.nrc.gov/
site-help/e-submittals.html or by calling the NRC technical help line,
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time,
Monday through Friday. The help line number is (800) 397-4209 or
locally, (301) 415-4737.
Participants who believe that they have good cause for not
submitting documents electronically must file a motion, in accordance
with 10 CFR 2.302(g), with their initial paper filing requesting
authorization to continue to submit documents in paper format. Such
filings must be submitted by (1) first class mail addressed to the
Office of the Secretary of the Commission, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemaking and
Adjudications Staff; or (2) courier, express mail, or expedited
delivery service to the Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville, Pike, Rockville, Maryland, 20852,
Attention: Rulemaking and Adjudications Staff. Participants filing a
document in this manner are responsible for serving the document on all
other participants. Filing is considered complete by first-class mail
as of the time of deposit in the mail, or by courier, express mail, or
expedited delivery service upon depositing the document with the
provider of the service.
Documents submitted in adjudicatory proceedings will appear in
NRC's electronic hearing docket which is available to the public at
https://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant
to an order of the Commission, an Atomic Safety and Licensing Board, or
a Presiding Officer. Participants are requested not to include personal
privacy information, such as social security numbers, home addresses,
or home phone numbers in their filings. With respect to copyrighted
works, except for limited excerpts that serve the purpose of the
adjudicatory filings and would constitute a Fair Use application,
Participants are requested not to include copyrighted materials in
their works.
If a hearing is requested by the Licensee or a person whose
interest is adversely affected, the Commission will issue an Order
designating the time and place of any hearing. If a hearing is held the
issue to be considered at such hearing shall be whether this Order
should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to
requesting a hearing, at the time the answer is filed or sooner, move
the presiding officer to set aside the immediate effectiveness of the
Order on the ground that the Order, including the need for immediate
effectiveness, is not based on adequate evidence but on mere suspicion,
unfounded allegations, or error.
In the absence of any request for hearing, or written approval of
an extension of time in which to request a hearing, the provisions
specified in Section III above shall be final twenty (20) days from the
date of this Order without further order or proceedings. If an
extension of time for requesting a hearing has been approved, the
provisions specified in Section III shall be final when the extension
expires if a hearing request has not been received. An answer or a
request for hearing shall not stay the immmediate effectiveness of this
order.
Dated this 18th day of June 2008.
For the Nuclear Regulatory Commission.
George Pangburn,
Acting Director, Office of Federal and State Materials and
Environmental Management Programs.
Attachment 1: List of Applicable Materials Licensees Redacted.
Attachment 2: Requirements for Fingerprinting and Criminal History
Records Checks of Individuals When Licensee's Reviewing Official is
Determining Access to Safeguards Information
Requirements for Fingerprinting and Criminal History Records Checks of
Individuals When Licensee's Reviewing Official is Determining Access to
Safeguards Information
General Requirements
Licensees shall comply with the requirements of this attachment.
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 Part
73.59, has a favorably-decided U.S. Government criminal history
records check within the last five (5) years, or has an active
federal security clearance. Written confirmation from the Agency/
employer which granted the federal security clearance or reviewed
the criminal history records check must be provided. The Licensee
must retain this documentation for a period of three (3) years from
the date the individual no longer requires access to SGI associated
with the Licensee's activities.
4. All fingerprints obtained by the Licensee pursuant to this
Order must be submitted to the Commission for transmission to the
FBI.
5. The Licensee shall review the information received from the
FBI and consider it, in conjunction with the trustworthy and
reliability requirements included in Attachment 3 to NRC Order EA-
08-161, in making a determination whether to grant access to SGI to
individuals who have a need-to-know the SGI.
6. The Licensee shall use any information obtained as part of a
criminal history records check solely for the purpose of determining
an individual's suitability for access to SGI.
7. The Licensee shall document the basis for its determination
whether to grant access to SGI.
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,
by calling (301) 415-7232, or by e-mail to forms.resource@nrc.gov.
Practicable alternative formats are set forth in 10 CFR 73.4. The
Licensee shall establish procedures to ensure that the quality of
the fingerprints taken results in minimizing the rejection rate of
fingerprint cards due to illegible or incomplete cards.
[[Page 37993]]
The NRC will review submitted fingerprint cards for
completeness. Any Form FD-258 fingerprint record containing
omissions or evident errors will be returned to the Licensee for
corrections. The fee for processing fingerprint checks includes one
re-submission if the initial submission is returned by the FBI
because the fingerprint impressions cannot be classified. The one
free resubmission must have the FBI Transaction Control Number
reflected on the re-submission. If additional submissions are
necessary, they will be treated as initial submittals and will
require a second payment of the processing fee.
Fees for processing fingerprint checks are due upon application.
Licensees shall submit payment with the application for processing
fingerprints by corporate check, certified check, cashier's check,
money order, or electronic payment, made payable to ``U.S. NRC.''
[For guidance on making electronic payments, contact the Facilities
Security Branch, Division of Facilities and Security, at (301) 415-
7404]. Combined payment for multiple applications is acceptable. The
application fee (currently $27) is the sum of the user fee charged
by the FBI for each fingerprint card or other fingerprint record
submitted by the NRC on behalf of a Licensee, and an NRC processing
fee, which covers administrative costs associated with NRC handling
of Licensee fingerprint submissions. The Commission will directly
notify Licensees who are subject to this regulation of any fee
changes.
The Commission will forward to the submitting Licensee all data
received from the FBI as a result of the Licensee's application(s)
for criminal history records checks, including the FBI fingerprint
record.
Right To Correct and Complete Information
Prior to any final adverse determination, the Licensee shall
make available to the individual the contents of any criminal
records obtained from the FBI for the purpose of assuring correct
and complete information. Written confirmation by the individual of
receipt of this notification must be maintained by the Licensee for
a period of one (1) year from the date of the notification. If,
after reviewing the record, an individual believes that it is
incorrect or incomplete in any respect and wishes to change,
correct, or update the alleged deficiency, or to explain any matter
in the record, the individual may initiate challenge procedures.
These procedures include either direct application by the individual
challenging the record to the agency (i.e., law enforcement agency)
that contributed the questioned information, or direct challenge as
to the accuracy or completeness of any entry on the criminal history
record to the Assistant Director, Federal Bureau of Investigation
Identification Division, Washington, DC 20537-9700 (as set forth in
28 CFR Part 16.30 through 16.34). In the latter case, the FBI
forwards the challenge to the agency that submitted the data and
requests that agency to verify or correct the challenged entry. Upon
receipt of an official communication directly from the agency that
contributed the original information, the FBI Identification
Division makes any changes necessary in accordance with the
information supplied by that agency. The Licensee must provide at
least ten (10) days for an individual to initiate an action
challenging the results of an FBI criminal history records check
after the record is made available for his/her review. The Licensee
may make a final SGI access determination based upon the criminal
history record only upon receipt of the FBI's ultimate confirmation
or correction of the record. Upon a final adverse determination on
access to SGI, the Licensee shall provide the individual its
documented basis for denial. Access to SGI shall not be granted to
an individual during the review process.
Protection of Information
1. Each Licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a
system of files and procedures for protecting the record and the
personal information from unauthorized disclosure.
2. The Licensee may not disclose the record or personal
information collected and maintained to persons other than the
subject individual, his/her representative, or to those who have a
need to access the information in performing assigned duties in the
process of determining access to Safeguards Information. No
individual authorized to have access to the information may re-
disseminate the information to any other individual who does not
have a need-to-know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another Licensee
if the Licensee holding the criminal history record check receives
the individual's written request to re-disseminate the information
contained in his/her file, and the gaining Licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics
for identification purposes.
4. The Licensee shall make criminal history records, obtained
under this section, available for examination by an authorized
representative of the NRC to determine compliance with the
regulations and laws.
5. The Licensee shall retain all fingerprint and criminal
history records received from the FBI, or a copy if the individual's
file has been transferred, for three (3) years after termination of
employment or determination of access to SGI (whether access was
approved or denied). After the required three (3) year period, these
documents shall be destroyed by a method that will prevent
reconstruction of the information in whole or in part.
[FR Doc. E8-14958 Filed 7-1-08; 8:45 am]
BILLING CODE 7590-01-P