In the Matter of Toshiba America Nuclear Energy Corporation and All Other Persons Who Seek or Obtain Access to Safeguards Information Described Herein; Order Imposing Safeguards Information Protection Requirements for Access to Safeguards Information (Effective Immediately), 74750-74755 [2010-30221]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 75, Number 230 (Wednesday, December 1, 2010)]
[Notices]
[Pages 74750-74755]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30221]


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NUCLEAR REGULATORY COMMISSION

 [EA-10-152; Project No. 52-0001; NRC-2010-0368]


In the Matter of Toshiba America Nuclear Energy Corporation and 
All Other Persons Who Seek or Obtain Access to Safeguards Information 
Described Herein; Order Imposing Safeguards Information Protection 
Requirements for Access to Safeguards Information (Effective 
Immediately)

I

    On June 12, 2009, the U.S. Nuclear Regulatory Commission (the 
Commission or NRC) published a rulemaking in the Federal Register (74 
FR 28112), that requires applicants for a variety of licensing 
activities, including nuclear power plant designers, to perform a 
design-specific assessment of the effects of a large, commercial 
aircraft impact and to incorporate design features and functional 
capabilities into the nuclear power plant design to provide additional 
inherent protection with reduced operator actions. Section V of the 
Federal Register notice contains specific requirements for applicants 
for new nuclear power reactors. To assist designers in completing this 
assessment, the Commission has decided to provide the detailed aircraft 
impact characteristics that reactor vendors and architect/engineers who 
have the need to know and who meet the NRC's requirements for the 
disclosure of such information should use as reasonable input in 
studies of the inherent capabilities of their designs.
    The NRC derived these characteristics from agency analyses 
performed on operating reactors to support, in part, the development of 
a broadly effective set of mitigation strategies to combat fires and 
explosions from a spectrum of hypothetical aircraft impacts. Although 
the NRC did not select these detailed characteristics as a basis for 
designing new reactors, the staff is suggesting that designers use them 
as a starting point for aircraft impact assessments. As stated in the 
rulemaking, the Commission will specify, in a safeguards information 
(SGI) guidance document, the detailed aircraft impact characteristics 
that should be used in a required assessment of the new reactor 
designs. The agency is working to finalize the form and values of those 
detailed characteristics. On July 10, 2009, the NRC issued Draft 
Regulatory Guide (DG)-1176, ``Guidance for the Assessment of Beyond-
Design-Basis Aircraft Impacts,'' to assist applicants in the completion 
of the assessment. The agency did not receive any comments on DG-1176. 
The staff is currently finalizing the regulatory guide. In addition, 
the staff recognizes that no national or international consensus has 
been reached on the selection of appropriate characteristics for such 
analyses. Therefore, applicants should consider the information 
preliminary and subject to authorized stakeholder comment. The detailed 
aircraft characteristics that are the subject of this Order are hereby 
designated as SGI,\1\ in accordance with Section 147 of the Atomic 
Energy Act of 1954, as amended (AEA).
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    \1\ SGI 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.
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    On October 24, 2008, the NRC revised Title 10 of the Code of 
Federal Regulations (10 CFR) Part 73, Sec.  73.21, ``Protection of 
Safeguards Information: Performance Requirements,'' to include 
applicants in the list of entities required to protect SGI (73 FR 
63546). The NRC is issuing this Order to Toshiba America Nuclear Energy 
Corporation (TANE) to impose requirements for the protection of SGI in 
addition to the requirements in the revised 10 CFR 73.21. These 
additional requirements include nomination of a reviewing official, 
restrictions on the storage of SGI, and access to SGI by certain 
individuals.
    To implement this Order, TANE must nominate an individual, known as 
the ``reviewing official,'' who will review the results of the Federal 
Bureau of Investigation (FBI) criminal history records check to make 
SGI access determinations. The reviewing official must be someone who 
seeks access to SGI. Based on the results of the FBI criminal history 
records check, the NRC staff will determine whether this individual may 
have access to SGI. If the NRC determines that the individual may not 
be granted access to SGI, the enclosed Order prohibits that individual 
from obtaining access to any SGI. Once the NRC determines that the 
nominated individual may have access to SGI, and after TANE has 
completed the background check on the reviewing official and has 
determined that he or she is trustworthy and reliable, and has approved 
the individual as the reviewing official, that reviewing official, and 
only that reviewing official, can make SGI access determinations for 
other individuals who have been identified by TANE as having a need to 
know SGI and who have been fingerprinted and have had a criminal 
history records check in accordance with this Order. The reviewing 
official can only make SGI access determinations for other individuals; 
he or she cannot approve other individuals to act as reviewing 
officials. If TANE wishes to nominate a new or additional reviewing 
official, the NRC must first determine whether that individual may have 
access to SGI before he or she can act in the capacity of a reviewing 
official.
    The regulations at 10 CFR 73.59, ``Relief from Fingerprinting, 
Identification and Criminal History Records Checks and Other Elements 
of Background Checks for Designated Categories of Individuals,'' 
relieve certain categories of individuals from fingerprinting 
requirements. Those individuals include: (1) Federal, State, and local 
law enforcement personnel, (2) Agreement State inspectors who conduct 
security inspections on behalf of the NRC, (3) members of Congress, (4) 
employees of members of Congress or congressional committees who have 
undergone fingerprinting for a prior U.S. Government criminal history 
check, and (5) certain representatives of the International Atomic 
Energy Agency or certain foreign government organizations. In addition, 
the NRC has determined that individuals who have had a Favorably-
decided U.S. Government criminal history check within the last 5 years 
or individuals

[[Page 74751]]

who have active Federal security clearances (provided, in either case, 
that they make available the appropriate documentation) have already 
been subjected to fingerprinting and criminal history records checks 
and, therefore, have satisfied the fingerprinting requirement in the 
Energy Policy Act of 2005.

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 652 of the Energy Policy Act of 2005 amended Section 149 of the 
AEA to require fingerprinting and an FBI identification and criminal 
history records check of each individual who seeks access to SGI. In 
addition, no person may have access to SGI unless that person has an 
established need to know and satisfies the trustworthiness and 
reliability requirements of the regulations.
    To provide assurance that TANE is continuing to implement the 
appropriate measures to ensure a consistent level of protection to 
prohibit unauthorized disclosure of SGI and to comply with the 
fingerprinting, criminal history records check, and background check 
requirements for access to SGI, TANE shall implement the requirements 
for the protection of SGI in 10 CFR 73.21, 10 CFR 73.22 and this Order. 
In addition, under 10 CFR 2.202, ``Orders,'' the NRC finds that in 
light of the matters identified above, which warrant the issuance of 
this Order, public health and safety and the public interest require 
that this Order be effective immediately.

III

    Accordingly, under Sections 147, 149, 161b, 161i, 161o, 182, and 
186 of the AEA and under the Commission's regulations in 10 CFR 2.202 
and 10 CFR Part 73, ``Physical Protection of Plants and Materials,'' it 
is hereby ordered, Effective Immediately, that Tane and all other 
persons who seek or obtain access to SGI as described herein shall 
comply with the requirements set forth in 10 CFR 73.21, 10 CFR 73.22, 
and this order.
    A.1. No person may have access to any SGI if the NRC, when 
determining SGI access for a nominated reviewing official, has 
determined, based on fingerprinting and an FBI identification and 
criminal history records check that the person nominated may not have 
access to SGI.
    2. TANE shall store SGI designated by this Order only in the 
facility or facilities specifically approved in writing by the NRC for 
storage of SGI designated by this Order. TANE may request, in writing, 
NRC approval of additional facilities for the storage of the SGI 
designated by this Order that the NRC will consider on a case-by-case 
basis.
    3. TANE may provide SGI designated by this Order to individuals 
(such as foreign nationals, U.S. citizens living in foreign countries, 
or individuals under the age of 18) for whom fingerprinting and an FBI 
criminal history records check are not reasonably expected to yield 
sufficient criminal history information to form the basis of an 
informed decision on granting access to SGI, provided that the 
individual satisfies the requirements of this Order and that TANE has 
implemented measures, in addition to those set forth in this Order, to 
ensure that the individual is suitable for access to the SGI designated 
by this Order. Such additional measures must include, but are not 
limited to, equivalent criminal history records checks conducted by a 
local, State, or foreign government agency, and/or enhanced background 
checks, including employment and credit history. The NRC must review 
these additional measures and approve them in writing.
    B. No person may provide SGI to any other person except in 
accordance with Section III.A above. Before providing SGI to any 
person, a copy of this Order shall be provided to that person.
    C. TANE shall comply with the following requirements:
    1. TANE shall, within 20 days of the date of this Order, submit the 
fingerprints of one individual who (a) TANE nominates as the 
``reviewing official'' for determining access to SGI by other 
individuals and (b) has an established need to know the information. 
The NRC will determine whether this individual (or any subsequent 
nominated reviewing official) may have access to SGI and, therefore, 
will be permitted to serve as TANE's reviewing official.\2\ TANE may, 
at the same time or later, submit the fingerprints of other individuals 
to whom TANE seeks to grant access to SGI. Fingerprints shall be 
submitted and reviewed in accordance with the procedures described in 
the attachment to this Order.
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    \2\ The NRC's determination of this individual's access to SGI 
in accordance with the process described in Enclosure 3 to the 
transmittal letter of this Order is an administrative determination 
that is outside the scope of this Order.
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    2. TANE shall, within 20 days of the date of this Order, notify, in 
writing, the Commission: (a) If it is unable to comply with any of the 
requirements described in the Order, including the attachment; or (b) 
if compliance with any of the requirements is unnecessary in its 
specific circumstances.
    The notification shall provide TANE's justification for seeking 
relief from, or variation of, any specific requirement.
    TANE shall submit responses to Section III.C.1 and Section III.C.2 
above to the Director, Office of New Reactors, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555. In addition, TANE shall mark its 
responses as ``Security-Related Information--Withhold under 10 CFR 
2.390.''
    Except for the requirements for fingerprinting, the Director, 
Office of New Reactors, may, in writing, relax or rescind any of the 
above conditions upon demonstration of good cause by TANE.

IV

    In accordance with 10 CFR 2.202, TANE 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 20 days of the date of 
its publication in the Federal Register. Where good cause is shown, the 
NRC will consider extending the time to answer or request a hearing. A 
request for an extension of time in which to submit an answer or to 
request a hearing must be made in writing to the Director, Office of 
New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
and must include a statement of good cause for the extension.
    All documents filed in NRC adjudicatory proceedings, including a 
request for hearing, a petition for leave to intervene, any motion or 
other document filed in the proceeding prior to the submission of a 
request for hearing or petition to intervene, and documents filed by 
interested governmental entities participating under 10 CFR 2.315(c), 
must be filed in accordance with the NRC E-Filing rule (72 FR 49139, 
August 28, 2007). The E-Filing process requires participants to submit 
and serve all adjudicatory documents over the internet, or in some 
cases to mail copies on electronic storage media. Participants may not 
submit paper copies of their filings unless they seek an exemption in 
accordance with the procedures described below.
    To comply with the procedural requirements of E-Filing, at least 10 
days prior to the filing deadline, the participant should contact the 
Office of

[[Page 74752]]

the Secretary by e-mail at hearing.docket@nrc.gov, or by telephone at 
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 proceeding in which 
it is participating; and (2) advise the Secretary that the participant 
will be submitting a request or petition for hearing (even in instances 
in which the participant, or its counsel or representative, already 
holds an NRC-issued digital ID certificate). Based upon this 
information, the Secretary will establish an electronic docket for the 
hearing in this proceeding if the Secretary has not already established 
an electronic docket.
    Information about applying for a digital ID certificate is 
available on NRC's public Web site at https://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing 
the E-Submittal server are detailed in NRC's ``Guidance for Electronic 
Submission,'' which is available on the agency's public Web site at 
https://www.nrc.gov/site-help/e-submittals.html. Participants may 
attempt to use other software not listed on the Web site, but should 
note that the NRC's E-Filing system does not support unlisted software, 
and the NRC Meta System Help Desk will not be able to offer assistance 
in using unlisted software.
    If a participant is electronically submitting a document to the NRC 
in accordance with the E-Filing rule, the participant must file the 
document using the NRC's online, Web-based submission form. In order to 
serve documents through EIE, users will be required to install a web 
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser 
plug-in, is available on the NRC's public Web site at https://www.nrc.gov/site-help/e-submittals.html.
    Once a participant has obtained a digital ID certificate and a 
docket has been created, the participant can then submit a request for 
hearing or petition for leave to intervene. Submissions should be in 
Portable Document Format (PDF) in accordance with 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 
documents are submitted through the NRC's E-Filing system. To be 
timely, an electronic filing must be submitted to the E-Filing system 
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of 
a transmission, the E-Filing system time-stamps the document and sends 
the submitter an e-mail notice confirming receipt of the document. The 
E-Filing 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 
documents on those participants separately. Therefore, applicants and 
other participants (or their counsel or representative) must apply for 
and receive a digital ID certificate before a hearing request/petition 
to intervene is filed so that they can obtain access to the document 
via the E-Filing system.
    A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System 
Help Desk through the ``Contact Us'' link located on the NRC Web site 
at https://www.nrc.gov/site-help/e-submittals.html, by e-mail at 
MSHD.Resource@nrc.gov, or by a toll-free call at (866) 672-7640. The 
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., 
Eastern Time, Monday through Friday, excluding government holidays.
    Participants who believe that they have a good cause for not 
submitting documents electronically must file an exemption request, in 
accordance with 10 CFR 2.302(g), with their initial paper filing 
requesting authorization to continue to submit documents in paper 
format. Such filings must be submitted by: (1) First-class mail 
addressed to the Office of the Secretary of the Commission, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: 
Rulemaking and Adjudications Staff; or (2) courier, express mail, or 
expedited delivery service to the Office of the Secretary, Sixteenth 
Floor, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland, 20852, Attention: Rulemaking and Adjudications Staff. 
Participants filing a document in this manner are responsible for 
serving the document on all other participants. Filing is considered 
complete by first-class mail as of the time of deposit in the mail, or 
by courier, express mail, or expedited delivery service upon depositing 
the document with the provider of the service. A presiding officer, 
having granted an exemption request from using E-Filing, may require a 
participant or party to use E-Filing if the presiding officer 
subsequently determines that the reason for granting the exemption from 
use of E-Filing no longer exists.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket, which is available to the public at 
https://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, or the presiding officer. Participants 
are requested not to include personal privacy information, such as 
social security numbers, home addresses, or home phone numbers in their 
filings, unless an NRC regulation or other law requires submission of 
such information. With respect to copyrighted works, except for limited 
excerpts that serve the purpose of the adjudicatory filings and would 
constitute a Fair Use application, participants are requested not to 
include copyrighted materials in their submission.
    The answer may consent to this Order. If the answer, on the other 
hand, includes a request for hearing, it shall, in writing and under 
oath or affirmation, specifically set forth the matters of fact and law 
by which TANE relies and the reasons as to why the NRC should not have 
issued this Order. If a person other than TANE 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(d).
    If TANE or a person whose interest is adversely affected requests a 
hearing, 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 this hearing shall be whether this Order should be sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), TANE 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 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 a 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 20 days from the date 
this Order is published in the Federal Register, without further 
issuance of an order or proceedings.
    If the agency approves an extension of time in which to request a 
hearing, the provisions, as specified above in Section III, shall be 
final when the extension expires if the NRC has not received a hearing 
request.

[[Page 74753]]

    An answer or a request for hearing shall not stay the immediate 
effectiveness of this order.

    Dated at Rockville, MD, this 19th day of November 2010.

    For the Nuclear Regulatory Commission.

Michael R. Johnson,
Director, Office of New Reactors.

Guidance for the Evaluation of Access to Safeguards Information With 
the Inclusion of Criminal History Records (Fingerprint) Checks

    When a licensee or other person \3\ submits fingerprints to the 
U.S. Nuclear Regulatory Commission (NRC) in accordance with an NRC 
Order, that licensee or other person will receive a criminal history 
summary of information, as provided in federal records, since the 
individual's 18th birthday. Individuals retain the right to correct and 
complete information and to initiate challenge procedures described in 
Enclosure 3. The licensee will receive the information from the 
criminal history records check for those individuals who require access 
to Safeguards Information (SGI), and the reviewing official will 
evaluate that information using the guidance below. Furthermore, the 
requirements of all orders, which apply to the information and material 
to which access is being granted, must be met.
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    \3\ As used herein, ``licensee'' means any licensee or other 
person who must conduct fingerprinting.
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    The licensee's reviewing official is required to evaluate all 
pertinent and available information when determining an individual's 
access to SGI, including the criminal history information pertaining to 
that individual as required by the NRC Order. The reviewing official 
must use the criminal history records check when determining whether an 
individual has a record of criminal activity that indicates that he or 
she should not have access to SGI. The reviewing official must document 
each determination of access to SGI, including a review of criminal 
history information and the basis for the decision that he or she made 
as follows:
     If the reviewing official discovers negative information 
that the individual did not provide or that is different in any 
material respect from the information that the individual provided, the 
reviewing official should consider this information and must document 
his or her decisions made based on these findings.
     The reviewing official should carefully evaluate any 
record that contains information on a pattern of behaviors that 
indicates that the behaviors could be expected to recur or continue or 
on recent behaviors that cast questions on whether an individual should 
have access to SGI before any authorization of access to SGI.
    A licensee must resubmit fingerprints only under either one of the 
following two conditions:
    (1) The Federal Bureau of Investigation (FBI) has determined that 
the fingerprints cannot be classified due to poor quality in the 
mechanics of taking the initial impressions; or
    (2) The initial submission has been lost.
    If the FBI advises that six sets of fingerprints are unclassifiable 
based on conditions other than poor quality, the licensee may submit a 
request to the NRC for alternatives. When those search results are 
received from the FBI, no further search is necessary.

Process To Challenge NRC Denials or Revocations of Access to Safeguards 
Information

1. Policy

    This policy establishes a process by which individuals who are 
nominated as a reviewing official by a U.S. Nuclear Regulatory 
Commission (NRC) licensee or other person \1\ are afforded the 
opportunity to challenge and appeal NRC denials or revocations of 
access to Safeguards Information (SGI). Any individual nominated as a 
licensee reviewing official whom the NRC has determined may not have 
access to SGI shall, to the extent provided below, be afforded an 
opportunity to challenge and appeal the NRC's determination. This 
policy shall not be construed to require the disclosure of SGI to any 
person, nor shall it be construed to create a liberty or property 
interest of any kind in the access of any individual to SGI.
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    \1\ As used herein, ``licensee'' means any licensee or other 
person who must conduct fingerprinting.
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2. Applicability

    This policy applies solely to those employees of licensees who are 
nominated as a reviewing official and who are thus considered, by the 
NRC, for initial or continued access to SGI in that position.

3. SGI Access Determination Criteria

    The NRC staff will make determinations for granting a nominated 
reviewing official access to SGI. The NRC shall deny or revoke access 
to SGI whenever it determines that an individual does not meet the 
applicable standards. The agency shall resolve any doubt about an 
individual's eligibility for initial or continued access to SGI in 
favor of the national security and will deny or revoke access.

4. Procedures To Challenge the Contents of Records Obtained From the 
Federal Bureau of Investigation (FBI)

    Before the NRC Facilities Security Branch Chief makes the 
determination to deny or revoke access to SGI by an individual 
nominated as a reviewing official, that individual shall be afforded 
the following:
    (1) The individual shall have access to the contents of records 
obtained from the FBI for the purpose of ensuring correct and complete 
information. If, after reviewing the record, an individual believes 
that the information 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, he or she 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 Title 28 of the Code of Federal Regulations (28 CFR) 
16.30, ``Purpose and Scope,'' through 28 CFR 16.34, ``Procedure to 
Obtain Change, Correction or Updating of Identification Records''). In 
the latter case, the FBI will forward the challenge to the agency that 
submitted the data and will request that the agency verify or correct 
the challenged entry. Once the FBI receives an official communication 
directly from the agency that contributed the original information, the 
FBI's Identification Division makes any necessary changes in accordance 
with the information supplied by that agency.
    (2) The individual shall have 10 days to initiate an action 
challenging the results of an FBI criminal history records check 
(described in provision 1 above) after the record is made available for 
the individual's review. If the individual initiates such a challenge, 
the NRC Facilities Security Branch Chief may make a determination based 
upon the criminal history record only upon receipt of the FBI's 
ultimate confirmation or correction of the record.

5. Procedures To Provide Additional Information

    Before the NRC Facilities Security Branch Chief makes a 
determination to deny or revoke access to SGI by an individual 
nominated as a reviewing official, that individual shall be given

[[Page 74754]]

the opportunity to submit information relevant to the his or her 
trustworthiness and reliability. The NRC Facilities Security Branch 
Chief shall, in writing, notify the individual of this opportunity and 
of any deadlines for submitting this information. The NRC Facilities 
Security Branch Chief may make a determination of access to SGI only 
upon receipt of the additional information submitted by the individual 
or, if no such information is submitted, when the deadline to submit 
such information has passed.

6. Procedures To Notify an Individual of the NRC Facilities Security 
Branch Chief's Determination To Deny or Revoke Access to Safeguards 
Information

    Once the NRC Facilities Security Branch Chief makes a determination 
to deny or revoke access to SGI by an individual nominated as a 
reviewing official, that individual shall be provided a written 
explanation of the basis for this determination.

7. Procedures To Appeal an NRC Determination To Deny or Revoke Access 
to Safeguards Information

    Once the NRC Facilities Security Branch Chief makes a determination 
to deny or revoke access to SGI by an individual nominated as a 
reviewing official, that individual shall be afforded an opportunity to 
appeal this determination to the Director, Division of Facilities and 
Security. The individual must appeal the determination within 20 days 
of receipt of the written notice of the determination by the Facilities 
Security Branch Chief, either in writing or in person. Any appeal made 
in person shall take place at the NRC's Headquarters and shall be at 
the individual's own expense. The determination made by the Director, 
Division of Facilities and Security, shall be rendered within 60 days 
after receipt of the appeal.

8. Procedures To Notify an Individual of the Determination by the 
Director, Division of Facilities and Security, Upon an Appeal

    A determination by the Director, Division of Facilities and 
Security, shall be provided to the individual in writing and shall 
include an explanation of the basis for this determination. A 
determination by the Director, Division of Facilities and Security, to 
affirm the Facilities Branch Chief's determination to deny or revoke an 
individual's access to SGI is final and not subject to further 
administrative appeals.

General Requirements

    Licensees and other persons who are required to conduct 
fingerprinting shall comply with the requirements of this enclosure.\2\
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    \2\ As used herein, ``licensee'' means any licensee or other 
person who must conduct fingerprinting in accordance with these 
requirements.
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    The licensee shall notify the U.S. Nuclear Regulatory Commission 
(NRC) of any desired change in reviewing officials in compliance with 
Section III.C.1 of the subject order. The NRC will determine whether 
the individual nominated as the new reviewing official may have access 
to Safeguards Information (SGI) based on a previously obtained or new 
criminal history records check and, therefore, will be permitted to 
serve as the licensee's reviewing official.

Procedures for Processing Fingerprint Checks

    For the purpose of complying with this Order, licensees shall, 
using an appropriate method listed in Title 10 of the Code of Federal 
Regulations (10 CFR) 73.4, ``Communications,'' submit to the NRC's 
Division of Facilities and Security, Mail Stop T-6 E46, one completed, 
legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where 
practicable, other fingerprint records for each individual seeking 
access to SGI to the Director, Division of Facilities and Security, 
marked to the attention of the Division's Criminal History Check 
Section. Licensees may obtain copies of these forms by written request 
to the Office of Information Services, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001; by telephone at (301) 415-5877; 
or by e-mail at forms@nrc.gov. Practicable alternative formats appear 
in 10 CFR 73.4. The licensee shall establish procedures to ensure that 
the quality of the fingerprints taken minimizes the rejection rate of 
fingerprint cards because of 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 Federal 
Bureau of Investigation (FBI) returns the initial submission because 
the fingerprint impressions cannot be classified. The one free 
resubmission must have the FBI transaction control number reflected on 
it. 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 a 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.) A 
combined payment for multiple applications is acceptable. The 
application fee (currently $26) 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's handling of licensee 
fingerprint submissions. The Commission will directly notify licensees 
that are subject to this regulation of any fee changes.
    The Commission will forward to the submitting licensee all data 
received from the FBI resulting from the licensee's application(s) for 
criminal history records checks, including the FBI fingerprint record.

Right To Correct and Complete Information

    Before 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 ensuring correct and complete 
information. The licensee must maintain the individual's written 
confirmation of receipt of this notification for a period of 1 year 
from the date of the notification. If, after reviewing the record, an 
individual believes that the information 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, he or she 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, ``Purpose and Scope,'' 
through 28 CFR 16.34, ``Procedure to Obtain Change, Correction or 
Updating of Identification Records''). In the latter case, the FBI will 
forward the challenge to the agency that submitted the data and will 
request that the agency verify or correct the challenged entry. Once 
the FBI receives

[[Page 74755]]

an official communication directly from the agency that contributed the 
original information, the FBI's Identification Division makes any 
changes necessary in accordance with the information supplied by that 
agency. The licensee must allow an individual at least 10 days to 
initiate an action challenging the results of an FBI criminal history 
records check after the record is made available for his or 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. The licensee shall not 
grant an individual access to SGI during the review process.

Protection of Information

    Each licensee who obtains a criminal history record on an 
individual under this Order shall establish and maintain a system of 
files and procedures for protecting the record and the personal 
information from unauthorized disclosure.
    The licensee may not disclose the record or personal information 
that it collects and maintains to persons other than the subject 
individual or his or her representative or to those who have a need to 
access the information in performing assigned duties in the process of 
determining access to SGI. 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.
    The licensee may transfer personal information obtained on an 
individual from a criminal history records check to another licensee if 
the licensee holding the criminal history records check receives the 
individual's written request to redisseminate the information contained 
in his or her file and if the current licensee verifies information 
such as the individual's name, date of birth, Social Security number, 
sex, and other applicable physical characteristics for identification 
purposes.
    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.
    The licensee shall retain all fingerprint and criminal history 
records that it receives from the FBI or a copy of these records if the 
individual's file has been transferred for 3 years after termination of 
employment or upon determination of access to SGI (whether access was 
approved or denied). After the required 3-year period, the licensee 
shall destroy these documents by a method that will prevent the 
reconstruction of the information in whole or in part.

[FR Doc. 2010-30221 Filed 11-30-10; 8:45 am]
BILLING CODE 7590-01-P