ML20207F562
| ML20207F562 | |
| Person / Time | |
|---|---|
| Issue date: | 02/22/1999 |
| From: | Martin T NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Collins S, Hassell D, Paperiello C NRC (Affiliation Not Assigned), NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS), NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20207F551 | List: |
| References | |
| FRN-64FR15636, RULE-PR-10, RULE-PR-11, RULE-PR-2, RULE-PR-25, RULE-PR-6, RULE-PR-95 AF97-2-005, AF97-2-5, NUDOCS 9906090043 | |
| Download: ML20207F562 (75) | |
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February 22, 1999, f
MEMORANDUM TO: Those on the Attached List Original signed by FROM: Thomas O. Martin, Director Division of Facilities and Security Office of Administration
SUBJECT:
CONCURRENCE ON FINAL RULE - CONFORMANCE TO NATIONAL POLICIES FOR ACCESS TO AND PROTECTION OF CLASSIFIED INFORMATION Attached for your concurrence is a final rule package, "Conformance to National Policies for Access to and Protection of Classified Information," amending 10 CFR Parts 2,10,11,25, and 95 (Attachment 1). The proposed rule was published in the Federal Reaister on August 3,1998.
Comments were received from the Department of Defense, the Department of Energy, and the U.S. Enrichment Corporation. The changes in the final rule that resulted from the comments are summarized at Attachment 2. Attachment 3 is a redline / strikeout version to assist in your review.
We are circulating this package to all addressees simultaneously in order to reduce the concurrence time. Please provide your comments or concurrence to Jessie W. Barnes of my staff by March 12,1999. Concurrence via email is acceptable.
Attachments:
- 1. Memorandum to EDO requesting approval to publish final rule (w/ attachments)
- 2. Summarized changes
- 3. Redline / strikeout version of final rule Distribution:
MC: None DFS CEN FILE: LRD 3.00.03 LRD 3.00.05 LRD 3.00.09 LRD 3.00.17 D/DFS R/F PERSEC R/F A.L. Silvious, INFOSEC L. Fisher, FACB M. L. Springer, D/ADM H. T. Bell, OlG Document Name: :jbTRANSMEM.wpd
- SEE PREVIOUS CONCURRENCE SHEET LCIRCLE the *C' to remNe a copy of this document ethout encbsures: CIRCLE the *E' to receive a copy Eth encbsures)
OFFICE PERSEC* CE PERSEC* l CE D/DFS* CE l
NAME JWBarnes JJDunleavy TOMartin DATE 2/22/99 2 /22/99 2/22/99 9906090043 990528 PDR PR
- 2 64FR15636 PDR <
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DISTRIBUTION LIST FOR MEMORANDUM,
SUBJECT:
" CONCURRENCE ON FINAL RULE -
CONFORMANCE TO NATIONAL POLICIES FOR ACCESS TO AND PROTECTION OF CLASSIFIED INFORMATION," Dated February 22,, ,999 Carl J. Paperiello, NMSS Samuel Collins, NRR Donald F. Hassell, OGC David L. Meyer, ADM/DAS/RDB Brenda J. Shelton, OCIO/IMD/RMB Jesse L. Funches, CFO
- .*w MEMORANDUM TO: Those on the Attached List -
FROM: Thomas O. Martin, Director Division of Facilities and Security Office of Administration
SUBJECT:
CONCURRENCE ON FINAL RULE - CONFORMA E TO NATIONAL POLICIES FOR ACCESS TO AND PROTECTIO F CLASSIFIED INFORMATION Attached for your concurrence is a final rule package, " Conforma e to National Policies for Access to and Protection of Classified Information," amending CFR Parts 2,10,11,25, and 95 (Attachment 1). The proposed rule was published in the Fed al Reaister on August 3,1998.
' Comments were received from the Department of Defense he Department of Energy, and the U.S. Enrichment Corporation. The changes in the final r that resulted from the comments are summarized at Attachment 2. Attachment 3 is a redlin strikeout version to assist in your review.
We are circulating this package to all addressees ultaneously in order to reduce the concurrence time. Please provide your comme s or concurrence to Jessie W. Barnes of my staff by March 5,1999. Concurrence via emai s acceptable.
' Attachments:
- 1. Memorandum to EDO requesting provalto publish final rule (w/ attachments
- 2. Sumniarized changes
- 3. Redline / strikeout version of f' al rule Distribution:
MC: None DFS CEN FILE: LRD 3. .03 LRD 3 .05 LRD .00.09 L 3.00.17 D/DFS R/F -
PERSEC R/F .
A.L. Silvious,1 FOSEC L. Fisher, F B M. L. Spri er, D/ADM H.~ T. Be , OlG Docu nt Name::jbTRANSMEM.wpd the 'C' to receive a copy of this document without enclosures: ^.,lRCLE the 'E' to receive a copy with enclosures)
OFFICE PERSEC CE PERSES I CE D/DFS CE NAME JWBarrpsk) JJDunlehV TOMartidh DATE 7:LM9C )/t%9 tA199
AF97-2 ATTACHMENT 2 Specific changes from the proposed rule are as follows:
. The Paperwork Reduction Act Statement has been modified to include the Office of Management and Budget approval number for 10 CFR Part 11.
The Public Protection Notification paragraph has been clarified.
The authority citation for 10 CFR Part 2 has been added. 1 A slight modification was made to Section 2.790(d) to clarify that it also applies to plans for the protection of classified matter.
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l A modification to Section 10.22(d) was made to clarify what information may be provided l to an individual whose eligibility for access authorization is in question. I i
A slight modification was made to Section 11.3 to clarify that Part 11 only appiss to l facilities possessing formula quantities of strategic special nuclear material. j A change was made to the fees charged for personnel security investigations in Section 11.15 and Appendix A to 10 CFR Part 25.
Modifications were made to Sections 25.11 and 95.11, ' Specific exemptions," to clarify requirements for requesting and approving exemptions. The changes are based on experience with exemption requests and more closely follow the language of Section 50.12, " Specific exemptions."
The proposed revisions to Sections 25.15 and 95.35 which would have permitted access to most Restricted Data based on an "L" clearance rather than a "O" clearance have been withdrawn based on comments received.
Section 95.5 has been modified to clarify the definition of " Security Container."
Section 95.17 was modified to include several examples of what constitutes "significant events or changes" affecting the Foreign Ownership, Control or influence status of a facility.
Section 95.25(i) has been revised to eliminate the requirement to inventory the contents of a security container found open.
Section 95.33 has been revisc<t to permit the use of either audiovisual or written materials for security educatioa purposes.
Section 95.34 has been revised to eliminate the requirement for 60-day advance notice to NRC of visits by foreign nationals.
Section 95.57 has been revised to provide examples of the types of events that would require 1-hour reporting, to reduce the number of events that would require 1-hour l
j reporting, and to replace some of the existing reports with a log maintained by the licensee or the certificate holder.
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AF97-2 PML1 ATTACHMENT _3 NUCLEAR REGULATORY COMMISSION 10 CFR PARTS 2,'10,11,25, AND 95 RIN 3150-AF97 Conformance to National Policies For Access to Aand Protection of Classified Information AGENCY: Nuclear Regulatory Commission.
ACTION: Piepceed Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending its regulations to conform the requirements for the protection of and access to classified information to new national security policy documents. This proposed final rule is necessary to ensure that classified ,
information in the possession of NRC licensees, certificate holders, and others under the NRC's l J
regulatory requirements is protected in accordance with current national policies. Add;;lenally, che-nges have been m&de is eddreae acw requlremen's ici the ccatie: sf feieign hisl:cis &t cer:ein sl:es.
;e, ;;me ed;;oila: changes are bolng made to ,e'lod a reorgenlza;len wl:hln the N"lO O'flc; cf
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iecel.~ed e'ter thl5 date wlll be considered if it ls precilca' to do so, but the Osmmiselsn is &bleio l a;;uie cenoldeio;len enly foi commento seeeliled on or before thle do;o. Commente may be
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- Washington, DC 20555-0001 telephone (301) 415-74094, E-mail BGK4NROJJD1 ONRC. GOV. l i
SUPPLEMENTARY INFORMATION: )
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-12 Background 1
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. _1 On August'3,1998 (63 FR 41206), the NRC published a proposed rule in the Federal l Register to' amend 10 CFR Parts"10,- 11,'25 and 95'to conform'its" requirements for the protection Of Maselfied information at licensee,' certificate holder and othu facilities to new national' security policy documents. The national requirements for the protection of and access to Oclassified National Security Information have bw I wre revised by the issuance of the National industrial i 2
Security Program Operating Manual (NISPOM), Executive Order 12958, " Classified National Security Information," dated April 17,1995, and Executive Order 12968, " Access to Classified Information," dated August 2,1995. ln order te conform to thcsc national security pellcy decumente, the NnO must rev ee lte regvletions for the pretectlen of claee:fled nfermation. The requlrements of 10 OIR Parts 25 and 95 ere substantia lly based en Executive Order 312050 and
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The propeeed isle would amend The final' rule amends the provisions of 10 CFR Parts 10 Parts"2[10,11,25, and 95 that deal with requirements for access to and protection of classified information that have been changed or added by the NISPOM, the Eexecutive Odrders, or new national guidelines on the scope and adjudication of personnel security investigations.
Specifically, changes include a new definition in 10 CFR Part 10 for the " Personnel Security l
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l Review Panel" and revisions to a number of definitions in all four p Parts 10,11,25'and 95 to reflect a change in the name of the Division of Security to the Division of Facilities and Security.
Additionally, several changes to definitions were made to reflect: a change in responsibility for certain decisions from the Executive Director for Operations to the Deputy Executive Director for Management Services; revised due process procedures; a new requirement for a facility clearance for those licensees or others who require access to classified information at a facility other than their own; additional information on the scope and reporting requirements for the Foreign Ownership, Control, or Influence (FOCl) program; a requirement to resubmit an uru-w i
update to the Security Practice Procedures Plan every five years; a requirement for a visitor control program-; and greater specificity as to when particular reports are required.-The preposed isls addresse; the ntent of Executive Order 12020, "Nat enal lndustrial Securlty Piegram," to redgce wastefvl and ineff;clent dup!lcatrie everelght of prlvate facllltles whlch have cl ass lf ed intereeta from mere than ene Oevemment agency.
The prepescd ruls wesid also adopts new requirements in areas where the executive 3
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orders, the NISPOM, or the adjudicative guidelines require specific procedures not included in the previous versions of the rules. These new requirements include: the change to a three member Personnel Security Review Panel from three Review Examiners, acting individually, reviewing the record of a case where an individual's eligibility for access authorization or employment clearance is in question; an explicit notification that individuals whose eligibility for access authorization or employment clearance is in question have the right to be represented by counsel or other representative at their own expense and that they have a right to the documents, records, and reports which form the basis for the question of their eligibility to the extent they are unclassified and do not reveal a confidential source, and to the entire investigative file, as permitted by national security and other applicable law; a change to the period between reinvestigations for "L" and "R" access authorizations from five years to ten years; a change to the fee schedules of 10 CFR Parts 11 and 25 due to a change in the investigative requirements for "O," "L,""U," and "R" access authorizations; and changing the security classification markings to conform to Executive Order 12958;.
The prepcsed rule also republ:shes for edd;;;en&! pub llc corninenteliminates the proposed changes to Q25.15 and 95.35 which eddress the personnel security lnvestig&;rve requirements for &ccess to Oecre; nes;r:cted Oe;&. These proposed ch&nges vecre origin &!!y pub llshed &a-a prepcsed rslern&k ng on August 5,1000 (01 In 40500), &nd would have permitted access to most Secret Restricted Data, other then thet defined as "Ontic&l Secret nes;rlc;ed O&te" (thet teirn ls ac ionger used but the concept cen;lnses to be used fcr sclccted types cf Secret neotricted Oe;&) in the Nl0i'OM &nd its supplernent, viith &n "L" cleerence b& sed en & N&tian&l Agency Check v.;;h Levi &nd Credit lnvestig&;;en (NAOLO). The based on an "L" clearance rather than a "O" clearance.
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The_ rule also incorporates a change to $625.11 and 95.11, " Specific exemptions," to clarify requirements for requesting and approving ' exemptions. This change was based on 4
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experience with exemption requests following publication of the proposed rule and is intended to l
more closely follow the language of $50.12, " Specific exemptions." ,
Finally, the rule amends paragraph 11.15(e)(1) and Appendix A to 10 CFR Part 25 to i reflect recent Office of Personnelinvestigative cost changes. Most of the changes have resulted in significant cost decreases for affected parties. For exam ~ple, the cost of a single scope background investigation for a "U" or "O" access authorization is reduced from $3275 to $2856.
Where costs have increased, it has been on the order of two to three dollars.
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- 11. Comments on the Proposed Rule i
The Commission received three letters commenting on the proposed rule, one from the U.S. Enrichment Corporation,'one from the Department of Defense (DoD) and one from the i Department of Energy (DOE) Copies of the letters are available for public inspection and copying for a fee at the Commission's Public Document Room, located at 2120 L Street, NW. (Lower Level), Washington, DC, Comments from the USEC:
Comment; The commenter provided a comment on 10 CFR Part 2.790(d), "Public inspections, exemptions, requests for withholding." They stated that "10 CFR 2.790(d) now provides for protection of a licensee's physical security plan and material control and accounting program documents. it seems appropriate to protect classified matter protection plans from
'public disclosure in the same way as physical security plans and fundamental nuclear rnaterial controls plans are protected."
Response: Classified matter protection plans have always been considered as a part of the physical protection plan and have been protected from public disclosure. NRC, however, has no objection to clarifying this issue in the rulemaking and has adopted the recommendation by adding " classified matter protection" to 62.790(d).
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Comment: The commenter recommended that $11.3 be clarified to more prominent!y notify licensees thst it is only applicable to thdse licenseesMo possess formula quantities of strategic spscial nuclear'materisi.
Responsef Section 11.3 hAs been modified for cisrity.
Commenti Thsicommenter noted thst "As currentip described in 10 CFR 95.5, a container inust haue both'a'"TSat Csrtifiestibn' Label" mod 'a " General Ssrvices' Administration Approved Secdrity' Container" msrking to q'usiify.as'a "Soburity; Container."; Since~either reflects acceptable kualification, one o'fthe r other shbuld be adequate'and both shouki nbt bs required."
Rssponsef Sectioh 95.5 had been modifisd for cidrity.
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Comment? The cornmenter" stated thai"It 15 unclear (to USEC) what constitutes a significant' event or change affecting foreign ownership, control, or influence (FOCl).; It is 'our
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Undsrshnding that ' ths NRC"is responsible for' making FOCl determinations.?Therefore, the NRC
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sh6uld establish criteria that licensees and certificate holders can use to make'the determination -
of Mat events / change's'shbuld be reported to the NRC. For example,'iri 10 CFR 95.19(b) th5 NRC has described what " minor, non-sutistantive changes" inclOde',"?
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Responses The ruls language in iO CFR 95.17 had besn modifisd to describe the. types of signifisant chsnges'that would require' NRC notificatibn Cominent! The comm'entsr sisted that "The language $f '10 'CFR 95.19(a)' indicated'that ADY changs to the security procedures and controls would require the certificate holder to obtain
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prior Cognizant Security Agency (CSA) approvalJ The rule, however, only requires prior approval ;
i hf substantive changes 2 Further, thilanguage is inconsistent"with"other paits'of 'the regulations a
hregard to the' definition of "substsntive."(Part 50.54(p)(1)lthe process followed by the l
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I agency concerning the" preparation snd maintenance bf ssfeguards' contingency plan p_rocedures ;
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for Part 50 licensees, des 6fibe' substantive changes'as those'that decrease the effectiveness of I l
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the' security pisn.ITherefore, t6 (i) cisrify th5t prior approvsl is only needed for substantive 6
changes, arid (ii) be consisterit with 6ther parts of the regulations, USEC requests that the ruid language in 10 CFR 95.19(a) be modified...'."
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Risponssi it has slways been NRC policy that only substantive changes require prior CSA approvai.[695.19(a) clearly.says "Except as specified in paragraph (b) of this section each
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licensee....shall"obtain prior approval.i.."; l' 95.19(b) states ."A licensee or other person may effect i rNnor, non-sutsstantive cliangs to an approved Standdrd Prabtics Procedures' Plan for the asfeguarding.of classified matter without receiving prior CSA approval.... The current language.
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seems td be cleardThe examples citsd as substantive changes in' 995.19(a) appear to fully
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' ualify'as hhanges'affecting the security of NRC classified matter. ..lf a licensee were to change a classified mailing Addiess without'n6tification to the CSA,'it'is likely that other facilities would continue to send classified information to the old classified mailing address which was no longer
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qualified to receive it. That would create a serious threat of compromise to the information. The change to a new location for the approved facility would have potential major impacts on the securitiof the classified matter. Facility approval is granted based on the physical arid
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prochural'safdgua'rds'at a giv' en location. If a licensee could move the facility without prior approval,' it would'bb very similar 10 granting' the right to initially approve themselves.: We do 'not believs;these comments should be' adopted.
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Comment: The commenter indicated that "10 CFR 95.25(i) requires the inventory of a I
container found open. Because the NRC'does not require an initial inventdry'of' container contents,'it'is not Elear.what purpose the latter inventory serves.; Regulations (10 CFR 95.41)
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were revised in 1996 to remove inventory requirements for classified documents, with the exception df estemal receipt and dispatch records. Further, inventories may no longer have m'uch meaning since' docu'ments, computer' disks, and other ADP media are easily copied with I
today!siebhnology.L Finally,10 CFR'95.25(i) has reporting language that is unnecessary and ]
I should be'elirA!nated.i Finding an opsn security container would constitute an infraction and
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no0ld, t6er'efore, tie reportable Onder 10 CFR 95.57."
r ResponseEThe rule' language 'in'Section 95.57 his'been modified to change the requirsmeni.
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Commenfi Ths commenter stated ihst "10 CFR 95.25(j)(7) requires [thdt keys'and' spare locks be chsnged'or fetsied 'ev5ryi12' months. fit is not clear.wh locks ahd keys 'ars treated differently than combinations [C$mbinations only require change but if shnce of compromise exists [Chsnging _ locks every 1'2 mont6s can~ 6e a'n expensive proceddre at a large facility employini"several thousand people'." ISince 'both' de0 ices ' serve ihs same giurpose'(i.e.! physical controls which deny accesd to cisssifisd mattsk), t6s commenter believes theyMiould be trestsd consisishtlyl
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Responsei Alth6 ugh the commeniis not unreasonabl5, ths national requiremen't, as reflectsd in"sectiori5-310', " Supervision of Keys And Padlocks," of the' NISPOM, is explicith it states 3Jse of key-opersted' padlosids' are subjecilo~ihe folloMng requirements: (i) a key and Isck~ custodian shall'be'ahpointed toLensure proper custody"and handling of keys and ideks used for prdtection"of classified matsriali..'..;'(vii) locks shall be chsnssd'orlrotatsd 'aiIeast' annually,
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And shsil'bel' replaced sfter losdfor compromise of their operable keys;..i."1The NRC requirement
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is s'dirsct implementation of'the'nationa' l polid
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~ Comhient: Tho'cosrnenter noted 'thsih0'CFR '95.33(f) provides' an ex5mple of the iype ,
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of refreshAr briefing that'would be"appropriats to meet'the requirements of this section/namely, )
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thsluse'of "sudioMdeo rnatorials snd by issuing written rnaterials."{The example appears t'6 Erecidde"writtsn of audio / video bylthsmselves,' bottiof which are adehuate iraining tools.iThe
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codmenter requests that the' rule languags in .10 CFR 95.33(f) be modified 'to permit"either ' audio-i visual'dr written'msterials! !
Responseilt has never 6ee6NRC's intent'td requirs b6th"audis-visu51 god writtsn -
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inatorialsE We agree with"ths commenter that'eithsr alone,',or both togeth'er,'is an acceptabis 8
l t
E approdch.5Ths paragraph has been amended to clarify this point.
Comment: The com'menter n6ted that ."10'CFR 95.34(b)(1) requires that certain
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information concorhing' foreign' visitors be provided t6 the NRC 60 days in adv5nce of the visit.
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OSEC operates a commercial uranium enrichment facility'and already irnplements a security Efogratriivhich' prscludes the dissemidation/expbsure of classified information to F6 reign Nationals....As'a commsrcial operation'with'extsnsive foreign cust6mers, U'SEC cannot'operats Undef such? conditions [Our security piogram has already'been reviewed And deterr$lhsd td be effectiv'e in precluding fofsign ' nationals from gaining' access to classified information. Sssuritp pland fdr all sisits by foieign nationals a're preparsd, maintained,'and avsilsble for review 6p ths
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NRC.L in this.way, the.NRC can still track"the movement bf foreign nationals and analyze potsntialihreats.~... Finally, the retention period for m'aintenance of records described in 10 CFR
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95.34(b)(2) calls for five years.;it does not appear thst this change is relatedlto the' National Industrial Security Program."
R'esponsefAlthough' the NISPOM reqUiles security controls for foreign nationsis[it does
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not contain a requirement for a_60l day advance notification of visits bp forsign nationals.iNRC agrees that the propos~ed 60 day' requirement is not ndsded 'and that'the existing controls dealing ivith foreign nationals are adsquite[ However, the requirement to maintain the records of such
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visits for five' years'is' consistent with tNo NRC requirements 'under $95.36 for the International Atomic Energy Agency (IAEA)' inspectors.L NRC has rnodified"$95.34 to rernove the '60' day notificatidn. requirement'6ut IEmaintaining the five year recordkeeping requirement!
Cointnent: Ths commenter noted that theiproposed changes 'to' 695.'35"....'could'save hundreds of thousands of dollars by essentially' eliminating the need for "Q" clearances at our facilities. However,' USEC clearances are msintained by the DOE and we are required 16 follow DOE personnel securityiregulati5ns per NRC/ DOE agreement.1 And although th5 Secretary.of Energy signed the National Industflal Secufity Program requirsd by Presidsntial Executive Order',
9
it'should be noted that,' DOE's' Office'of Safeguards'and Security does not endorse this concept..
This discrepanc between the two agencies may result 'in complications for'USEC."
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Response: As noted tielow, DOE strongip objects to a ' reduction in the" investigative
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iequirerdents for sscess to Secret Restricted Dati until subh time as DOE and DoD reconcile
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tiielf significant differences'ih the protection"requiremsnfbf Secrst Restristed Data. BecaUse DOEj$theEthsn NRC'msintains' security'hisarances far 'the commsnter, USEC apparently
^
dssires"16 av" oid complicstions that' ma result from differing standa~r ds between NRC'and DOE.
The 'commenter is"the 'organizaiion thaiwould be most affected by this change. . 'No other licensee' or certificate holder commehied on this change.T NRC hss'dscidsd ts' withdraw the proposed ch'ange 'and allow the current requirements to remsin in sffset uhtil DOE and'DoD i reconcile their significant diffs~rences in ths protsetion require'ments of Secret Restricted Data.
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CornmentiThe commentir stated that while th'e proposed reg 0lations (995'57) sho0ld
. 1
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' red 0ce' ths n6thber of tsleph6nic feports; it will' not decrease'the'greatsi adrhl6istrative bu'rdent on the"ce~rtifieste' holder created 'by the required written re' ports'.C NRC should adopt'a reporting 3 system sirdilar to ihat'Used by the power reactor industiy and required by'10 'CFR 73.71.
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Specifically[10 CFR 95.57(a) shbuld explain whst tMs of evest would require a'one' hour report
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' (similarI5]O?CFR'73.71(a)'(1))l...Similarty'L10 CFR 95'57(b)"should beievissd'to include those events not rising to the level of events descritied in 10 CFR 95 57(a)[ Events' involving i infractions, losses, or compromises sh6uld be legged f6r review.? All Idggable evedts shbsid be ,
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sent to ths'NRC on a quSrterly basisi..Ths requirement for 30 day written reports'(follow up) shoUld be elirninaied for an except ond hour reports? Experience' hss shown thed thNse follow' Up rep 6rts involve sxtsnsive review by inanage'msni shd'ars time intensive.1 By using' the logging
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process identified in"1'O CFR 73.71,'ths NRC would still receive. written indicstion of an event f6r
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inspection'revies or follow up.: Such 160 gable events codid show corrective ' actions or problem iAp6rt nurstsefs.for further review if desiled? Also, ths.NRC 'shbuld consider'a singis point of 10
)
6ontset for repoitable events. The propossd reporting requirements require rr:ultiple reports within NRC.... Experience has shown that time delsys may occur before'the proper NRC individual cari be' located)This pidces severs 'ime t constraints on a licensee / certificate holder who must m5ida detsrminatisn for reporting and notify two separate offices within the NRC of'an event.1
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USEC believes that the criteria for submission of NRC Form 790 more appropriately belongs in
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/ Section 95.37,L"Cinissification and Preparation of' Documents'."...'. Additionally, NRC has changed
' the. ' requirement for. submission of Form 7/90 from' monthly to" ...as completed basis or every 30
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dsys'."lTypically, the"NRC has ussd ths 30" day time period for submission of reports'or events, hot ethndard document submissioni Because USEC files this form on'a regular basis, we prefer
'td ke5p~the current ' wording,... on a monthly basis...."
Response:( NRC' agrees that examples of ' events requiring 'one tidur reporting should be ihcluded 'and 995.57(a)'has been revised to' include such examples.INRC is also amenable to
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fed 0cing the formal reporting requirements for security l infractions to; accommodate'the logging procedure recommended by the commenter.(WE do not agree thAt quarterly reporting is adeq'uate ind have revised the rule to provide for submission of logs on a monthly basis.
NRC does noi adree that a single point of contact is prabtical for events of a high level of significance (sote that ws have agreed abov5 to significahtly reduce the numbei of events which would' qualify for one. hour reporting). - Because only'truly serious events would now qualify',;it is
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impdrtant that both 'th'5'CSA and the NRC}egional . office be promptly notified.lThis' change has not 'been Adopted.lNRC' agrees that restoring the reporting ~ requirement for the NRC Form 790 to
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i
" monthly"is acceptable and have so revised $95.57(c). However, we have not removed the "as l comploied". option f0r those entities that would prefer to electronically submit the information as ,
i documents are classifieds NRC does not see any particular advantage to moving ' the reporting requir'ement to a"different' paragraph and has not adopted that recommendation.
The comnienter_also provided comments regarding the NRC document," Standard Practice 11 i
l
i i
Piocedures Plan Standard Format and Content for the'Protsetion of Classified Matter for NRC i_icenseesiC4Etificats Holder; and'Related Organizations," which is not a p5rt of this rulemaking.~
Comments from the DoD:
Cornment: Thi commenter noted'that "During the development of.the NISPOM, it became
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necessa'ry to resolve dissimilsr requirsments for the handling of'RD between the Department of EneEgy, the C6thmission, and ibis Department. For the past 40s years, the 'Difense Department has'successfully' handled and stored RD according to its classification level, protecting
' SECRET /RD as GECRET hational security'information....We have'been working'to resolve these
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diffsring requirdments since 1995....ahd that....in the int'erim,-irs (thdir) view.... unnecessarily costly baclyround investigations are continuing td be run in Energy and the Commission for access to
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ths same infdrm5 tion that is accessed bdsed on a lesser investigation in the Defense
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Departrnent.~...Thsrefore, the' Defense DepEr't ment fully' supports Sections 25.15'and 95.35'of the
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ref5r5nced propdsid rule."
Responsei! NRC does not hhve significant numbers of licensee or certificate h61 der
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personn51'with "Q"l clearances. Most of those'withl"Q" clearances are at USEC.iUSEC commented that a discrepancy bstween DOE and NRC personnel security requirements for i
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access to Secret Rsstricted' D5ta may result in corr @lications for USEC.' As noted above,'NRC has sissted not to make these revisions to its ruiss', until such" time as DOE 'and DoD reconcile tholisignificant' differences in'the protection requiremehts of' Secret R5stricted Data.
C6mmenis from'the Dspartrhent of Energy (DOE):
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Comment:SThe comment 5r stated thstthey"...'.have 'significant concems that'this rule, if
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arnended'as' stated in your proposal, will compromise some of th'e' nstions rhost sensitive nuclear weapons information. Our position remains unchsnged from our comment'to the pr'evious
'revisi6n'tdthis regulationiDering'the process of developing a single' security standard for....the
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protection of classified information,'.it was discovered that significant differences existed between i 12
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the Department of Energy land the Departmsnt 6f Defense iri the protection of Secret Restricted DitaEThe two agencies igised to work toward a Aolution.C We.are stiil in th6 process of
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Yeconciling thoms differences....Neithsr the NISPOM nor the NISPOM _ Supplement' allow for
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access to Secret Restricted DstA based 'on an "L" access suthorization;.i.When information is cresied,7there is~no 'distinbilon withiri Se$ ret R55tricted Dsta"of " critical"for "nuclearTweapons
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design, man 0facturing, or vulherability."TWithout the ideritificstion and marking 'of this typs of
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i information'^the'irnpisinoniation"Of tholoq0irement withid NRC'would tie'im'possibid? If this
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requirement 'wer'i implemehted','it poses a potsntial threat to Secret 'R5stricted Dsts,$thst' is,' this I i
soubtfy's'mosi'sendiiivs weapons desi0n'informhtion be'ing accessed by "L" Elesred individuals." .
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Response:-. Because NRC is responsible for the regulation of the cMiian use of nucledr l
' aterials, not weapons dssi0n and manufacture, it is difficult to understand how our licensees m
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1 And cartificate holders would have any' reason'to possess'"this country's most sensitive weapons design information" regardless of the 'levdl ofl clearance that thsy held.( How'ever, because DOE l
has'strdng objection io~ revising th'e rule u'ntil'such time as DOE and DoD reconcile their
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'significaM differences in the protectioh requirements of S crbt Restricted Data,' and USEC, the
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organization most affected by this aspect'of the rule, advised that a discrepancy between DOE
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and NRClon'this issue may. result in complications ~for'thein, NRC has decided not to revise !
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$$25'."1 5 and 95.35 at this time Ill. The Final Rule With'the exception of the items addressed under'" Comments on thd Proposed Rule,"
blarifying changes td $$25J1land 95.1 { s" Specific exemptions," a slight' change to fees charged for investigatibns in $11'.'15 and Appendix A to 10 CFR Part '25, And ' minor editorial and clarifying i
ci,anges! the final rule is the same'as the proposed rule. The specific chandes from' the l proposed rule are-- i
- a slight modification'to'$2.790(d') to clarify that it applies to plans for the protaction of 13
I l
classified matter;
- a madification to $10.22(d) to cisrify what information may be provided to an individual whose eligibility for access authorization is in question; . l s a slight modification to $11.3 to diarify that it only applies to facilities posessing formula !
l quantities of strategic special nuclear material; i a change to the fees etiarged for personnel securitp investigations in $11.15 and Appendix 1
A tol10 CFR Part 25;
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- modifications'to $$25.11 and 95.1'1, " Specific exemptions," to cl5rify requirements for appropriat'e reasons and supporting requirements when requesting exemptions.lThis chsnge is based 'on experience with exemption requests following publicatiori of the I
proposed rule and more closely follows the language of 950.12, " Specific exemptions." -)
. the proposed revisions to $625.15 and 95.35 have bsen withdrawn;; !
- a clErifiestion of the definition of "Se6urity Container" in 695.5; !
- the provision of several axamples of what constitutes "significant events or changes" affecting th5 Foreig: Ownership, Control or influence status of s facility in $95.17; I
- $95.25(i) has'bsen revis'ed to eliininate ths requirement to inventory the contents of a secu'rity container found open; i
$95.33 has been revised to permit either audio-visual or written materials for security education; I
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- $95.34 has' been revised to' eliminate the requirement for 60 day advance notice to NRC of visits by forsign nationals; and
- $95.57'has been revised to provide examples of the types of events that would require l
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one hdur reporting lto 'reducs the number of events which would require one hour
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reporting', and to replace some of the existing reports with' a licensee / certificate holder l maintained log.
14
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Small Business Regulatory Enforcement Fairness Act in accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the
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NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.
Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.
Paperwork Reduction Act Statement
)
This picpesedfinal rule amends information collection requirements that are subject to the '
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). This icis has been submitted to These requirements were approved by the Office of Management and Budget 4cr revles, end, approval of the lnformetion co;;ectica requirement 5 numbers 3150-0046,3150-0047, 3150-0050, and 3150-0062.
The public reporting burden for this ccllactlon of information collection is estimated to average 012.05 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the
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information collection. The NilO is scdlng pub llc comment on the potentiellmpect cf the I cell action of infermetica conteined in the propcsed rule end on the fcllcv.ing lssues:
- 1. l3 the propcsed ccll action of lnfermetica necessery for the picper performence of thefmnc1;eneethe = . m e hethmthe = meti m llhevep =lcele u i
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1
- 2. l3 the asumate of burden accurate? ;
- 0. !s there a way te enhence the quallty, LU;;;y, and clenty of the lnfermat;en ;c be
__,.__._ n i om..-m i
- 4. llew can the bsiden of the lnfermaten cellxten be min ml zed, inc'ud:ng the use j cf automated cellccuen technl ques?
l The average burden hours per response for the proposed ruie was estimated at 8.3 hours3.472222e-5 days <br />8.333333e-4 hours <br />4.960317e-6 weeks <br />1.1415e-6 months <br />
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1 instead of 7.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> becAuse the recordkeeping hours were not lncluded in the burden estimate. l Th5 final rulelurden increase includes the reduction of 8 iesponses and 4 burden hours' beca'use
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of the' deletion of the requirement at.iO'CFR 95.34(b)(1) for advance notificatidn of foreign visitors. Send comments on any aspect of this prepeacd information collection of nformanen,;
including suggestions for reducing the burden, to ths lnformat en and Records Management Branch (T-6 F33), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by
- Internet electronic mail at BJS1 @NRC. GOV; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0046, -0047 -0050, and -0062), Office of Management and Budget, Washington, DC 20503. Oemments te OMO en the cc lcct; ens of lnicimat;eneren the ebeve lseges ehecid be subml:ted by (lnsert date 00 days after pub llceden ln the redere; nee ;;ed. Ocminente recelved after thle date v.;;l be cen5ldered if it ls pracucal tc de se, but asagrance of cenelderaten cannot be glven o comments recelved after thl5 date.
Public Protection Notification if h means u' sed to impose an information collection requiremen; does not display a currently valid OMB control number,$ the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.
16
Regulatory Analysis The Commission has prepared a regulatory analysis for this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. The analysis is available for inspection in the NRC Public Document Room,2120 L Street, NW (Lower Level), Washington, DC. Single copies of the analysis may be obtained from Ovene C. Kidd James J. Dunleavy, Division of Facilities and Security, Office of Administration, U. S. Nuclear Regulatory Commission, Washington, DC 20555, telephone: (301) 415-74034.
Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980,5 U.S.C. 605(b), the Commission certifies that this rule, if adopted, will not have a significant economic impact upon a substantial number of small entities. The NRC carefully considered the effect on smal1 entities in developing this preposed final rule on the protection of classified information and have octermined that none of the facilities affected by this rule would qualify as a small entity under the NRC's size standards (10 CFR 2.810). ,
1 Backfit Analysis The NRC has determined that the backfit rule,10 CFR 50.109, applies to this rulemaking initiative because it falls within the criteria of 10 CFR Part 50.109(a)(1). However, e backfit analysis is not required because this rulemaking qualifies for exemption under i0 CFR j 50.109(a)(4)(iii) that reads: "That the regulatory action involves . . . redefining what level of l
protection to the . . . common defense and security should be regarded as adequate." i i
List of Subjects l
l 17 l l
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o L-iO CFR Part 2
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Administrative 'practice and procedure, Antitrust, Byproduct mdterial, Classified information; Environmentsi protection, Nuclear material, Nuclear power plants and reactors, Pennities, Sex discriminatidn, Source material, Special nuclear material, Waste treatment and dispossl; 10 CFR Part 10 '
Administrative practice and procedure, Classified information, Criminal penalties, Investigations, Security measures.
10 CFR Part 11 Hazardous materials - transportation, Investigations, Nuclear Materials, Reporting and recordkeeping requirements, Security measures, Special nuclear material.
10 CFR Part 25 Classified information, Criminal penalties, investigations, Reporting and recordkeeping requirements, Security measures.
10 CFR Part 95 Classified information, Criminal penalties, Reporting and recordkeeping requirements, Security measures. 1 For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC prepe;;; te edepus adopting the following amendments to 10 CFR Parts'2; 10,11,25, and 95.
PART$ RULES OF PRACTICE'FOR DOMESTIC OCENSING PROCEEDINGS AND ISSUANCE'OFORDERS 18 L J
li The authority citation for Pert 2 continues to read as follows:
AUTHORITY: Secs.161,181,68 Stat. 948, 953,$s amended (42 U.S.C. 2201,2231); sec.191, as amended, Pub. L.87-615,76 Stat.2409 (42 U.S.C. 2241') ; sec. 201, 88 Stat.1242,"as amended
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(42 U.S.C. 5841) 5 U.S.C. 552.'
Sectidn'2.101 ilso issued uridef s6cs. 53', 62, 63,' 81, .103,104h105', 68 Stat. 930, 932, 933, 935, 936[937,938, as amsn'ded (42 U.S.C.'2073l 2092, 2093,2111,2133,2134,2135); sec.114(f),
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Pub'. L.,97-425, 96 Stat [2213,'as amended (42 U.S.C.10134(f))'; sec.102, Pub. L.91-190, 83
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Stat. 853,' as'amendM (42 U.S.C. 4332); sec. 301,' 88 Stat; 1248 (42 U.S.C. 587.1)? Sections
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2.102, 2.'103', 2.104, 2'105l2.721 also issued unde'r secs.'102,"103,104,105,' 183,189,168 Stat.
936[937,' 938,"954, 955', as arnended (42' U' S.C. 2132, 2133, 2134,' 2135, 2233,'2239). Section 2.105 also issued un'der Pub. L.97-415, 96' Stat. 2073 (42 U.S.C. 2239).' Sections 2.200-2.206 j also issued under secs'.161 b, ( o,182l 186',' 234, 68 Stat. 948-951, 955, 83 Stat.' 444,' as
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amended (42 U.S.C. '2201 (b), (i)[(o), 2236, 2282); sec. 206, 88 Stat .1246 (42 U.S.C; 5846).
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Sections 2.205(j) also issued under Pub. L.101-410,104' Stat. 890, as' amended by section
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31001(s), Pub. L.104-134,110' Stat.1321-373 (28 U.S.C. 2461 note). Sections 2.600-2.606 also
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issu'ed under sec.1102, Pub l L. 911 190, 83' Stat. 853, as amended (42'U.S.C. 4332). ' Sections
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2.700a,2.719 also issuhd under 5 U. sic. 554. Sections 2.754,2.760,2.770,' 2.780 also issued
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under 5 U.S.C.' 557JSection 2.764 also issued un' d er secs. 135,141, Pub. L.97-425, 96 Stal !
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2232,2241 (42 U.S.C.10155,'10161).L Section 2.790'also issued under sec,103,.68 Stat. 936,
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as amended (42.U.S.C. 2133) and 5'U.S.C. 552.' Sections 2.800 and 2.808 also issued urder 5
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U.S.C. 553.JSeciion 2.809 also issued under 5 U.S.C. 553 and sec. 20, Pub. L 85-256l7' 1 Stat.
579,7as amended (42 U.S.C.' 2039). Subpart K also issued under sec.189,68 Stat. 955 (42 U.S.C. 2239); sec.1134, Pub.12 97-425, 96 Stat. 2230. (42 U.S.C.10154).; Subpart L also issued
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under'sec. '189',68 Stat."955 (42 U.S.C. 2239).' Appendix A also issued under sec. 6, Pub. L.91-560,84 Stat.1473 (42 U.S.C. 2135).
19
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- 2. In $2.790 paragraph (d)(1) is revised to read as follows:
6 2.790 Public Insoections. exemotions.~ reauests for withholdino
-(d) * # *
'(1) Correspondence and reports to or from the NRC which contain information or reco'r ds conceming a licensee's or applicant's physical protection, classified matter protection,'or material control and accounting program for specia! nuclear material not otherwise designated as Safeguards information or cla'ssified as National Security Information or Restricted Data.
PART 10 -- CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO RESTRICTED DATA OR NATIONAL SECURITY INFORMATION OR AN EMPLOYMENT CLEARANCE
+3. The authority citation for Part 10 is revised to read as follows:
Authority: Secs. 145,161,68 Stat. 942,948, as amended (42 U.S.C. 2165,2201); sec. 201,88 Stat.1242, as amended (42 U.S.C. 5841); E.O.10450,3 CFR Parts 1949 - 1953 COMP.,
- p. 936, as amended; E.O. 10865,3 CFR 1959 - 1963 COMP., p. 398, as amended; 3 CFR Table 4.; E.O.12968,3 CFR 1995 COMP., p. 396.
- 24. Section 10.1 is revised to read as follows:
610.1 Puroose.
(a) This part establishes the criteria, procedures, and methods for resolving questions concerning:
(1) The eligibility of individuals who are employed by or applicants for employment with ,
1 NRC contractors, agents, and licensees of the NRC, individuals who are NRC employees or j applicants for NRC employment, and other persons designated by the Deputy Executive Director for Management Services of the NRC, for access to Restricted Data pursuant to the Atomic i
20 l l
l j
Energy Act of 1954, as amended, and the Energy Reorganization Act of 1974, or for access to l national security information; and (2) The eligibility of NRC employees, or the eligibility of applicants for employment with the I NRC, for employment clearance.
(b) This part is published to implement the Atomic Energy Act of 449541954, as amended, the Energy Reorganization Act of 1974, as amended, Executive Order 10865,25 FR 1583 (February 24,1960) Executive Order 10450,18 FR 2489 (April 27,1954), and Executive Order 12968,60 FR 40245 (August 2,1995).
- 95. In $10.2, paragraph (d) is revised to read as follows:
610.2 Scooe.
l (d) Any other person designated by the Deputy Executive Director for Management Services of the Nuclear Regulatory Commission.
- 46. In $10.5, the introductory text is removed, the paragraph designations preceding each of the defined terms are removed, the definitions are rearranged in alphabetical order, and the definitions of Access Authorization. Emolovment Clearance. National Security information, and NRC Personnel Security Review Panel are revised to read as follows:
610.5 Definitions.
Access authorization means an administrative determination that an individual (including a consultant) who is employed by or an applicant for employment with the NRC, NRC contractors,
]
agents, and licensees of the NRC, or other person designated by the Deputy Executive Director for Management Services, is eligible for a security clearance for access to Restricted Data or National Security Information.
Employment Clearance means an administrative determination that an individual 21 1
(including a consultant) who is an NRC employee or applicant for NRC employment and other persons designated by the Deputy Executive Director for Management Services of the NRC is eligible for employment or continued employment pursuant to subsection 145(b). of the Atomic Energy Act of 1954, as amended.
National Security Information means information that ls ewned by, piedseed for er by, er under the een;ie' of the Un;;ed Ote:ee Oeverninent, and thet has been determined; pursuant to Executive Order 12958 or entecedoniany predecessor orders; to require protection against i unauthorized disclosure; and that is so designated.
l NRC Personnel Security Review Panel means an appeal panel appointed by the Deputy Executive Director for Management Services and consisting of three members, two of whom shall be selected from outside the security field. One member of the Panel shall be designated as Chairman.
- 57. In 610.10 the introductory text of paragraph (d) is revised to read as follows:
)
l 610.10 Aoolication of the criteria, j l
(d) In resolving a question concerning the eligibility or continued eligibility of an individual for access authorization and/or employment clearance, the following principles shall be applied by the Director, Division of Facilities and Security, Hearing Examiners, and the NRC Personnel Security Review Panel:
l
- 68. In $10.12, paragraphs (a) and (c) are revised to read as follows:
610.12 Interview and other investiaation. l 22 L
~ (a)The Director, Division of Facilities and Security, Office of Administration, may authorize the granting of access authorization and/or employment clearance on the basis of the information in the possession of the NRC or may authorize the conduct of an interview with the individual, if the individual consents to be interviewed, or such other investigation as the Director deems appropriate. On the basis of such interview and/or investigation, the Director may authorize the granting of access authorization and/or employment clearance.
I
- *- * *
- I (c) If the Director, Division of Facilities and Security, cannot make a favorable finding regarding the eligibility of an individual for access authorization and/or employment clearance, the l question of the individual's eligibility shall be resolved in accordance with the procedures set forth in $10.20 et seq.
- 79. Section 10.20 is revised to read as follows:
610.20 Purpose of the procedures.
These procedures establish methods for the conduct of hearings and administrative review of questions concerning an individual's eligibility for access authorization and/or
- employment clearance pursuant to the Atomic Energy Act of 1954, as amended, and Executive Orders 10450,10865, and 12968 when a resolution favorable to the individual cannot be made !
on the basis of the interview or other investigation.
810. Section 10.21 is revised to read as follows:
~ 610.21 Suspension of access authorization and/or emolovment clearance.
In those cases where information is received which raises a question concerning the continued eligibility of an individual for access authorization and/or employment clearance, the Director, Division of Facilities and Security, through the Director, Office of Administration, shall forward to the Deputy Executive Director for Management Services or other Deputy Executive Director, his or her recommendation as to whether the individual's access authorization and/or 23 I
-)
. employment clearance should be suspended pending the final determination resulting from thu operation of the procedures provided in this part. !!n making this recommendation the Director, Division of Facilities and Security, shall consider such factors as the seriousness of the
- derogatory information developed, the degree of access of the individua! to classified information, and the individual's opportunity by reason of his or her position to commit acts adversely affecting
. the national security, 'An individual's access authorization and/or employment clearance may not be suspended except by the direction of the.Ex'ecutiv'e Director foi Opsrations, Deputy Executive Director for Management Services or other Deputy Executive Director, 911. Section 10.22 is revised to read as follows:
610.22 Notice to individual.
~ A notification letter, prepared by the Division of Facilities and Security, approved by the Office of General Counsel, and signed by the Director, Office of Administration, shall be presented to each individual whose eligibility for access authorization and/or employment clearance is in question. iWhere practicable, such letter shall be presented to the individual in
. persond The letter will be accompanied by a copy of this part and shall state:
- (a) That reliable information in the possession of the NRC has created a substantial doubt concoming the individual's eligibility for access authorization and/or employment clearance; (b) The information that creates a substantial doubt regarding the individual's eligibility for access authorization and/or employment clearance, which shall be as comprehensive and detailed as the national security interests and other applicable law permit;
- (c) That the individual has the right to be represented by counsel or other representative at their own expense; (d) That the individual may request within 20 days of the date of the notification letter, any documents, records and reports which form the basis for the question of their eligibility for access 24 L i u-
m q
authorization and/or employment clearance. The individual will'be provided with 30 days notice j thereAfter all such documents, records arid reports to the extent that they are unclassified and do
~
hot feveal a confidentia'l source. , to ths eder,; the docuniente wegid be provided if requested 1
~
. c,Ai the Freede,T, of lnfer,7,etlen er the rilve;y Act; The individual may also request the entire Irwestiga't lye file [whicli will byrorsptiy provide, as permitted by the' national security and other applicable law;
- (e) That unless the individual files with the Director, Office of Administration, a written request for a hearing within 20 days of the individual's receipt of the notification letter or 20 days after receipt of the information provided in response to a request made under paragraph (d), of this section, whichever is later, the Director, Division of Facilities and Security, through the Director, Office of Administration, will submit a recommendation as to the final action to the Deputy Executive Director for Management Services on the basis of the information in the possession of the NRC; (f) That if the individual files a written request for a hearing with the Director, Office of Administration, the individual must file with that request a written answer under oath or affirmation which admits or denies specifically each allegation and each supporting fact contained in the notification letter. IA general denial is not sufficient to controvert a specific allegation.i If the individual is without knowledge, he or she shall so state and that statement shall operate as a denial.i The answer shall also state any additional facts and information that the individual desires to have considered in explanation or mitigation of allegations in the notification letter.; Failure to specifically deny or explain or deny knowledge of any allegation or supporting fact shall be deemed an admission that the allegation or fact is true.
' (g) That if the individual does not want to exercise his or her right to a hearing, but does want to submit an answer to the allegations in the notification letter, the individual may do so by filing with the Director, Office of Administration, within 20 days of his-receipt of the notification 25
letter or 20 days after receipt of the information provided in response to a request made under paragraph (d), of this section, whichever is later, a written answer in accordance with the requirements of paragraph (f) of this section; (h) That the procedures in $10.24 et seq. shall apply to any hearing and review.
102. In $10.23, paragraph (a) is revised to read as follows:
610.23 Failure of individual to reauest a hearina.
(a) In the event the individual fails to file a timely written request for a hearing pursuant to 10.22, a recommendation as to the final action to be taken shall be made by the Director, Division of Facilities and Security, through the Director, Office of Administration, to the Deputy Executive Director for Management Services on the basis of the information in the possession of the NRC, including any answer filed by the individual.
143. In $10.25, paragraphs (a) and (c) are revised to read as follows:
610.25 NRC Hearina Counsel.
(a) Hearing Counsel assigned pursuant to $10.24 shall, before the scheduling of the hearing, review the information in the case and shall request the presence of witnesses and the production of documents and other physical evidence relied upon the Director, Division of Facilities and Security, in making his or her finding that a question exists regarding the eligibility of the individual for NRC access authorization and/or employment clearance in accordance with the provisions of this part. When the presence of a witness and the production of documents and other physical evidence is deemed by the Hearing Counsel to be necessary or desirable for a determination of the issues, the Director, Division of Facilities and Security, shall make arrangements for the production of such evidence and for such witnesses to appear at the hearing by subpoena or otherwise.
26
r.
(c) The individual is responsible for producing witnesses in his or her own behalf and/or presenting other evidence before the Hearing Examiner to support the individual's answer and defense to the allegations contained in the notification letter. lWhen requested, however, Hearing Counsel shall assist the individual to the extent practicable and necessary.i The Hearing Counsel may at his or her discretion request the Director, Division of Facilities and Security, to arrange for the issuance of subpoenas for witnesses to attend the hearing in the individual's behalf, or for the production of specific' documents or other physical evidence, provided a showing of the necessity
~ for such assistance has been made.
194. In $10.27 paragraph (c) is revised to read as follows:
610.27 Prehearina oroceedinos.
. (c) The parties will be notified by the Hearing Examiner at least ten days in advance of the hearing of the time and place of the hearing. For good cause shown, the Hearing Examiner may order postponements or continuances from time to time.j If. after due notice, the individual fails to appear at the hearing, or appears but is not prepared to proceed, the Hearing Examiner shall,
. unless good cause is shown, return the case to the Director, Division of Facilities and Security, who shall make a recommendation on final action to be taken, through the Director, Office of Administration, to the Deputy Executive Director for Management Services on the basis of the-information in the possession of the NRC.
195. In $10.28, paragraph (n) is revised to read as follows:
610.28 Conduct of hearina.
(n) A written transcript of the entire proceeding shall be made by a person possessing appropriate NRC access authorization and/or employment clearance and, except for portions -
containing Restricted Data or National Security information, or other lawfully withholdable 27
r, , 3 i
l i
information, a copy of such transcript shall be furnished the individual without cost. The transcript or recording shall be made part of the applicant's or employee's personnel security file. 1 146. Section 10.31 is revised to read as follows:
610.31 Actions on the recommendations.
-(a) Upon receipt of the findings and recommendation from the Hearing Examiner, and the j 1
record, the Director, Office of Administration, shall forthwith transmit it to the Deputy Executive i Director for Management Services who at his or her discretion may return the record to the Director, Office of Administration, for further proceedings by the Hearing Examiner with respect to q specific matters designated by the Deputy Executive Director for Management Servicesi.
(b)(1) In the event of a recommendation by the Hearing Examiner that an individual's access authorization and/or employment clearance be denied or revoked, the Deputy Executive Director for Management Services shall immediately notify the individual in writing of the Hearing i Examiner's findings with' respect to each allegation contained in the notification letter, and that the individual has a right to request a review of his or her case by the NRC Pe.sonnel Security Review Panel and of the right to submit a brief in support of his or her contentions. !The request a
for a review shall be submitted to the Deputy Executive Director for Managemsin Services within
- five days after the receipt of the notice. !The brief shall be forwarded to the Deputy Executive Director eH6r Management Services, for transmission to the NRC Personnel Security Review Panel not later than 10 days after receipt of such notice.
(2) in the event the individual fails to request a review by the NRC Personnel Security
' Review Panel of an adverse recommendation within the prescribed time, the Deputy Executive
, Director for Management Services may at his or her discretion request a review of the record of the case by the NRC Personnel Security Review Panel. The request shall set forth those matters at issue in the hearing on which the Deputy Executive Director for Management Services desires a review by the NRC Personnel Security Review Panel.
28 o !
(c) Where the Hearing Examiner has made a recommendation favorable to the individual,
.. the Deputy Executive Director for Management Services may at his or her discretion request a review of the record of the case by the NRC Personnel Security Review Panel. If such a request is made, the Deputy Executive Director for Management Services shall immediately cause the individual to be notified of that fact and of those matters at issue in the hearing on which the Deputy Executive Director for M inagement Services desires a review by the NRC Personnel Security Review Panel. The Deputy Executive Director for Management Services shall further
)
- inform the individual that within 10 days of receipt of this notice, the individual may submit a brief concerning those matters at issue for the consideratior, of the NRC Personnel Security Review Panel. iThe brief'shall be forwarded to the Deputy Executive Director for Management Sentices for transmission to the NRC Personnel Security Review Panel.
J (d) in the event of a request for a review pursuant to paragraphs (b) and (c) of this I
section, the Hearing Counsel may file a brief within 10 days of being notified by the Deputy Executive Director for Management Services that a review has been requested. iThe brief shall be forwarded to the Deputy Executive Director for Management Services for transmission to the NRC Personnel Security Review Panel.
(e) The Hearing Counsel may also request a review of the case by the NRC Personnel Security Review Panel. The request for review, which shall set forth those matters at issue in the hearing on which the Hearing Counsel desires a review, shall be submitted to the Deputy Director Executive for Management Services within five days after receipt of the Hearing Examiner's findings and recommendation. .Within 10 days of the request for review, the Hearing Counsel may file a brief which shall be forwarded to the Deputy Executive Director for Management Services for transmission to the NRC Personnel Security Review Panel. A copy of the request for review, and a copy of any brief filed, shall be immediately sent to the individual. If the Hearing Counsel's request is for a review of a recommendation favorable to the individual, the individual I
29
may, within 10 days of receipt of a copy of the request for review, submit a brief concerning those matters at issue for consideration of the NRC Personnel Security Review Panel. The brief shall be forwarded to the Deputy Executive Director for Management Services for transmission to the NRC Personnel Security Review Panel. A copy of the brief shall be made a part of the applicant's personnel security file. I (f) The time limits imposed by this section for requesting rev'ews and the filing of briefs may be extended by the Deputy Executive Director for Management Services for good cause shown.
(g) In the event a request is made for a review of the record by the NRC Personnel Security Review Panel, the Deputy Executive Director for Management Services shall forthwith send the record, with ali findings and recommendations and any briefs filed by the individual and -
the Hearing Counsel, to the NRC Personnel Security Review Panel. 'If neither the individual, the Deputy Executive Director for Management Services, nor the Hearing Counsel requests such a review, the final determination shall be made by the Deputy Exer:utive Director for Management Services on the basis of the record with all findings and recommendations.
I i
157. Section 10.32 is revised to read as follows:
610.32 Recommendation of the NRC Personnel Security Review Panel. ;
1 (a) The Deputy Executive Director for Management Services shall designate an NRC ;
Personnel Security Review Panel to conduct a review of the record of the case. The NRC Personnel Security Review Panel shall be comprised of three members, two of whom shall be selected from outside the cecurity field. To qualify as an NRC Personnel Security Review Panel member, the person designated shall have an NRC "O" access authorization and may be an employee of the NRC, its contractors, agents, or licensees. However, no employee or consultant of the NRC shall serve as an NRC Personnel Security Review Panel member reviewing the case 30
- of an employee (including a consultant) or applicant for employment with the NRC; nor shall any employee or consultant of an' NRC contractor, agent or licensee serve as an NRC Personnel Security Review Panel member reviewing the case of an employee (including a consultant) or an applicant for employment of that contractor, agent, or licensee. $No NRC Personnel Security
. Review Panel member shall be selected who has knowledge of the case or of any information relevant to the disposition of it, or who for any reason would be unable to issue a fair and unbiased recommendation. .
(b) The NRC ' Personnel Security Review Panel shall consider the matter under review based upon the record supplemented by any brief submitted by the individual or the Hearing Counsel. The NRC Personnel Security Review Panel may request such additional briefs as the Panel deems appropriate. When the NRC Personnel Security Review Panel determines that additional evidence or further proceedings are necessary, the record may be returned to the Deputy Executive Director for IAanagement Services with a recommendation that the case be retumed to the Director, Office of Administration, for appropriate action, which may include retuming the case to the Hearing Examiner and reconvening the hearing to obtain additional
- testimony. [When additional testimony is taken by the Hearing Examiner, a written transcript of such testimony shall be made a part of the record and shall be taken by a person possessing appropriate NRC access authorization and/or employment clearance and, except for portions containing Restricted Data or National Security Information, or other lawfully withholdable information, a copy of such transcript shall be furnished the individual without cost.
(c) In conducting the review, the NRC Personnel Security Review Panel shall make its findings and recommendations as to the eligibility or continued eligibility of an individual for access authorization and/or employment clearance on the record supplemented by additional testimony or briefs, as has been previously determined by the NRC Personnel Security Review Panel as appropriatw.
31
(d) The NRC Personnel Security Review Panel shall not consider the possible impact of the loss of the individual's services upon the NRC program.
(e) If, after considering all the factors in light of the criteria set forth in this part, the NRC Personnel Security Review Panel is of the opinion that granting or continuing access authorization and/or employment clearance to th.e ! individual will not endanger the common defense and security and will be clearly consistent with the national interest, the NRC Personnel Security Review Panel shall make a favorable recommendation; otherwise, the NRC Personnel Security Review Panel shall make an adverse recommendation. The NRC Personnel Security Review Panel shall prepare a report of its findings and recommendations and submit the report in writing to the Deputy Executive Director for Management Services, who shall furnish a copy to the individual. :The findings and recommendations shall be fully supported by stated reasons supporting the findings and recommendations.
168. Section 10.33 is revised to read as follows:
610.33 Action by the Deputv Executive Director for Manaaement Services.
(a) The Deputy Executive Director for Management Services, on the basis of the record accompanied by all findings and recommendations, shall make a final determination whether access authorization and/or employment clearance shall be granted, denied, or revoked, except when the provisions of $10.28 (i), (J), or (I) have been used and the Deputy Executive Director for Management Services determination is adverse, the Commission shall make the final agency determination.
(b) in making the determination as to whether access authorization and/or employment clearance shall be granted, denied, or revoked, the Deputy Executive Director for Management Services or the Commission shall give due recognition to the favorable as well as the unfavorable
- information concerning the individual and shall take into account the value of the individual's services to the NRC's program and the consequenc(s of denying or revoking access 32 L
authorization and/or employment clearance.
(c) In the event of an adverse determination, the Deputy Executive Director for Management Services shall promptly notify the individual through the Director, Office of Administration, of his or her decision that access authorization and/or employment clearance is being denied or revoked and of his or her findings with respect to each allegation contained in the notification letter for transmittal to the individual.
(d) In the event of a favorable determination, the Deputy Executive Director for Management Services shall promptly notify the individual through the Director, Office of Administration.
179. In $10.34, paragraph (a) is revised to read as follows:
610.34 Action by the Commission.
(a) Whenever, under the provisions of $10.28(i), (j), or (1) an individual has not been afforded an opportunity to confront and cross-examine witnesses who have fumished information adverso to the individual and an adverse recommendation has been made by the Deputy Executive Director for Management Services, the Commission shall review the record and determine whether access authorization and/or employment clearance shall be granted, denied, or revoked, based upon the record.
4020. Section 10.35 is revised to read as follows:
610.35 Reconsideration of cases.
(a) Where, pursuant to the procedures set forth in $10.20 through 10.34, the Deputy Executive Director for Management Services or the Commission has made a determination granting access authorization and/or employment clearance to an individual, the individual's eligiollity for access authorization and/or employment clearance shall be reconsidered only when subsequent to the time of that determination, new derogatory information has been received or 33
the scope or sensitivity of the Restricted Data or National Security information to which the individual has or will have access has significantly increased. All new derogatory information, whether resulting from the NRC's reinvestigation program or other sources, will be evaluated relative to an individual's continued eligibility in accordance with the procedures of this part.
(b) Where, pursuant to these procedures, the Commission or Deputy Executive Director for Management Services has made a determination denying or revoking access authorization and/or employment clearance to an individual, the individual's eligibility for access authorization and/or employment clearance may be reconsidered when there is a bona fide offer of employment and/or a bona fide need for access to Restricted Data or nNational sSecurity ilnformation and either material and relevant new evidence is presented, which the individual and his or her representatives are without fault in failing to present before, or there is convincing evidence of reformation or rehabilitation.t Requests for reconsideration shall be submitted in writing to the Deputy Executive Director for Management Services through the Director, Office of Administration. Such requests shall be accompanied by an affidavit setting forth in detail the information referred to above. !The Deputy Executive Director for Management Services shall cause the individual to be notified as to whether his or her eligibility for access authorization and/or employment clearance will be reconsidered and if so, the method by which such reconsideration will be accomplished.
(c) Where access authorization and/or employment clearance has been granted to an individual by the Director, Division of Facilities and Security, without recourse to the procedures set forth in $$10.20 through 10.34, the individual's eligibility for access authorization and/or employment clearance shall be reconsidered only in a case where, subsequent to the granting of the access authorization and/or employment clearance, new derogatory information has been received or the scope or sensitivity of the Restricted Data or National Security Information, to which the individual has or will have access, has significantly increased. i All new derogatory 34
information, whether resulting from the NRC's reinvestigation program or other sources, will be evaluated relative to an individual's continued eligibility in accordance with the procedures of this part.
PART 11 -- CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO OR CONTROL OVER SPECIAL NUCLEAR MATERIAL 4921. The authority citation for Part 11 continues to read as follows:
Authority: Sec.161,68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841).
Section 11.15(e) also issued under sec. 501,85 Stat. 290 (31 U.S.C. 483a). I l
- 22. Section 11.3(a) is revised to read as follows:
)
611.3 Scope (A) The requiremerits, criteria, and procedures of this part apply to the establishment of
{
and eligibility for special nuclear material access authorization for employees, contractors, I
consultants of, and applicants for employment with licensees or contractors of the Nuclear Regulatory Commission where such employments, contract, service, or consultation involves any job falling within th'e criteria of 611.11 or 611.13 with access to, or control over, formula quantities of special nuclear ma'terial (as defined in Part 73 of this ' Chapter). j 203. In $11.7 the paragraph designations are removed, the definitions are rearranged in alphabetical order, and the definitions of NRC "Usoecial nuclear material access authorization l i
and NRC "R" special nuclear material access authorization are revised to read as follows:
611.7 Definitions.
NRC "U" soecial nuclear material access authorization means an administrative i
determination based upon a single scope background investigativn, normally conducted by the I i
Office of Personnel Management, that an individual in the course of employment is eligible to 35
1 r
work at a job falling within the criterion of 11.11(a)(1) or 11.13.
NRC "R" special nuclear material access authorization means an administrative determination based upon a national agency check with law and credit investigation that an individual in the course of employment is eligible to work at a job falling within the criterion of
$11.11(a)(2).-
2+4. Section 11.15 is revised to read as follows:
611.15 Acciicetion for special nuclear material access authorization. 1 (a)(1)' Application for special nuclear material access authorization, renewal, or change in level shall be filed by the licensee on b'ehalf of the applicant with the Director, Division of Facilities and Security, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Applications for affected individuals employed on October 28,1985, shall be submitted within 60 days of notification of Commission approval of the amended security plan.
' (2) Licensees who wish to secure NRC - U or NRC - R special nuclear material access authorizations for individuals in possession of an active NRC Q or L access authorization or other security clearance granted by another Federal agency based on an equivalent investigation shall submit a " Security Acknowledgment" (NRC Form 176) and a ' Request for Access Authorization" (NRC Form 237). [NRC will process these requests by verifying the data on an NRC cleared individual, or by contacting the Federal agency which granted the clearance, requesting certification of the security clearance, and determining the investigative basis and level of the clearance. Licensees may directly request the Federal agency which administered the security clearance, if other than NRC, to certify to the NRC that it has on file an active security clearance for an individual and to specify the investigative basis and level of
' the clearance.
(b) Applications for special nuclear material access authorization for individuals, other 36
than those qualifying under the provisions of $11.15(a)(2), must be made on forms supplied by the' Commission, including:
, (1) Questionnaire for National Security Positions (SF - 86, Parts 1 and 2);
(2) Two completed standard fingerprint cards (FD - 258);
(3) Security Acknowledgment (NRC Form 176);
- (4) Other related forms where specified in accompanying instruction (NRC - 254); and
- (5) A statement by the employer, prospective employer, or contractor identifying the job to -
be assigned to or assumed by the individual and the level of authorization,needed, justified by appropriate reference to the licensee's security plan.
(c)(1) Except as provided in paragraph (c)(2) of this section, NRC-U special nuclear material access authorizations must be renewed every five years from the date of issuance.
Except as provided in paragraph (c)(3) of this section, NRC-R special nucJear material access authorizations must be renewed every ten years from the date of issuance. An application for renewal must be submitted at least 120 days before the expiration of the five year period for NRC-U and ten year period for NRC-R, respectively, and must include:
' (i) A statement by the licensee that at the time of application for renewal the individual's assigned or assumed job requires an NRC-U or an NRC-R special nuclear material access authorization, justified by appropriate reference to the licensee's security plan; (ii) The Questionnaire for National Security Positions (SF - 86, Parts 1 and 2);
. (iii) Two completed standard fingerprint cards (FD - 258); and (iv) Other related forms specified in accompanying NRC instructions (NRC Form 254).
(2) An exception to the time for submission of NRC-U special nuclear material access authorization renewal applications and the paperwork required is provided for those individuals who have a current and active DOE-Q access authorization and who are subject to DOE Reinvestigation Program requirements. For these individuals, the submission to DOE of the SF -
37
86 pursuant to DOE Reinvestigation Program requirements (generally every five years) will satisfy the NRC renewal submission and paperwork requirements even if less than five years has passed since the date of issuance or renewal of the NRC-U access authorization. Any NRC-U special nuclear material access authorization renewed in response to provisions of this paragraph will not be due for renewal until the date set by DOE for the next reinvestigation of the individual pursuant to DOE's Reinvestigation Program.
(3) An exception to the time for submission of NRC-R special nuclear material access authorization renewal applications and the paperwork required is provided for those individuals who have a current and active DOE-L or DOE-Q access authorization and who are subject to DOE Reinvestigation Program requirements. lFor these individuals, the submission to DOE of the SF-86 pursuant to DOE Reinvestigation Program requirements will satisfy the NRC renewal submission and paperwork requirements even if less than ten years have passed since the date of issuance or renewal of the NRC-R access authorization. Any NRC-R special nuclear material access authorization renewed pursuant to this paragraph will not be due for renewal until the date set by DOE for the next reinvestigation of the individual pursuant to DOE's Reinvestigation .
Program.
(4) Notwithstanding the provisions of paragraph (c)(2) of this section, the period of time for the initial and each subsequent NRC-U renewal application to NRC may not exceed seven years.
' (5) Notwithstanding the provisions of paragraph (c)(3) of this section, the period of time for the initial and each subsequent NRC-R renewal application to NRC may not exceed twelve years.
lAny individual who is subject to the DOE Reinvestigation Program requirements but, for i
administrative or other reasons, does not submit reinvestigation forms to DOE within seven years l of the previous submission, for a NRC-U renewal or twelve years of the previous submission for a
~
NRC-R renewal, shall submit a renewal application to NRC using the forms' prescribed in paragraph (c)(1) of this section before the expiration of the seven year period for NRC-U or 38 I
e I l
I twelve year period for NRC-R renewal.
l (d) If at any time, due to new assignment or assumption of duties, a change in special
)
nuclear material access authorization level from NRC "R" to "U" is required, the individual shall j l
apply for a change of level of special nuclear material access authorization. The application must include a description of the new duties to be assigned or assumed, justified by appropriate
- reference to the licensee's security plan.
(e)(1) Each application for special nuclear material access authorization, renewal, or
- change in level must be accompanied by the licensee's remittance, payable to the U.S. Nuclear Regulatory Commission, according to the following schedule:
- 1. N R C- R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' . flMe-
$ 130 li. NRC-R (expedited processing) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' $200-3 lii. 8 NRC-R based on certification of comparable investigation . . . . . . . .. $0 iv. N R C- R ren ewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . '$WB-
$130
- v. NRC-U requiring single scope investigation. . . . . . . . . . . . . . . . . . . . . . . . -$397&$2856 i
vi. NRO-U requiring single scope investigation (expedited processing) . . . . . -$3000-$3295 '
vii. NRC-U based on certification of comparable investigation . . . . . . . . . . . . $0 viii. N R C-U re n ewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8! !M20
$1705 (2) Material access authorization fees will be published each time the Office of Personnel Management notifies NRC of a change in the background investigation rate it charges NRC for conducting the investigation. Any such changed access authorization fees will be applicable to each access authorization request received upon or after the date of publication. Applications from individuals having current Federal access authorizations may be processed expeditiously at 39
no cost, since the Commission may accept the certification of access authorizations and investigative data from other Federal government agencies which grant personnel access authorizations.
(f)(1) Any Federal employee, employee of a contractor of a Federal agency, licensee, or other person visiting an affected facility for the purpose of conducting official business, who possesses an active NRC or DOE - O access authorization or an equivalent Federal security clearance granted by another Federal agency (" Top Secret") based on a comparable single scope background investigation may be permitted, in accordance with 11.11, the same level of unescorted access that an NRC - U special nuclear material access authorization would afford.
(2) Any Federal employee, employee of a contractor of a Federal agency, licensee, or other person visiting an affected facility for the purpose of conducting official business, who possesses an active NRC or DOE - L access authorization or an equivalent security clearance granted by another Federal agency (" Secret") based on a comparable or greater background investigation consisting of a national agency check with law and credit may be permitted, in accordance with 911.11, the same level of unescorted access that an NHC - R special nuclear material access authorization would afford. An NRC or DOE - L access authorization or an equivalent security clearance (" Secret"), based on a background investigation or national agency check with credit, which was granted or being processed by another Federal agency before January 1,1998, is acceptable to meet this requirement.
225. Section 11.16 is revised to read as follows:
611.16 Cancellation of reauest for sDecial nuclear material access authorization.
When a request for an individual's access authorization is withdrawn or canceled, the licensee shall notify the Chief, Personnel Security Branch, NRC Division of Facilities and Security immediately, by telephone, so that the investigation may be discontinued. The caller shall provide the full name and date of birth of the individual, the date of request, and the type of 40
i access authorization originally requested ("U" or "R"). !The licensee shall promptly submit written confirmation of the telephone notification to the Personnel Security Branch, NRC Division of Facilities and Security.$ A portion of the fee for the "U" special nuclear material access i
authorization may be refunded depending upon the status of the single scope investigation at the ;
- time of withdrawal or cancellation. 1 296. In 911.21, paragraphs (c) and (d) are revised to read as follows:
611.21 Aoolication of the criteria.
(c) When the reports of investigation of an individual contain information reasonably falling within one or more of the classes of derogatory information listed in $10.11, it shall create a question as to the individual's eligibility for special nuclear material access authorization. lIn such cases, the application of the criteria shall be made in light of and with specific regard to whether the existence of such information supports a reasonable belief that the granting of a special nuclear material access authorization would be inimical to the common defense and security.i
.The Director, Division of Facilities and Security, may authorize the granting of special nuclear material access authorization on the basis of the information in the case or may authorize the conduct of an interview with the individual and, on the basis of such interview and such other investigation as the Director deems appropriate, may authorize the granting of special nuclear.
material access authorization. Otherwise, a question concerning the eligibility of an individual for special nuclear material access authorization shall be resolved in accordance with the procedures
' set forth in f610.20 through 10.38 of this chapter.
(d) In resolving a question conceming the eligibility or continued eligibility of an individual for special nuclear material access authorization by action of the Hearing Examiner or a Personnel Security Review Panel,' the following principle shall be applied by the Examiner and the Personnel Security Review Panel: Where there are grounds sufficient to establish a 41
)
p reasonable belief as to the truth of the information regarded as substantially derogatory and when the existence of such information supports a reasonable belief that granting access would be inimical to the common defense and security, this shall be the basis for a recommendation for denying or revoking special nuclear material access authorization if not satisfactorily rebutted by the individual or shown to be mitigated by circumstance.
PART 25--ACCESS AUTHORIZATION FOR LICENSEE PERSONNEL .
247. The authority citation for_ Part 25 continues to read as follows:
Authority: Secs. 145,161,68 Stat. 942,948, as amended (42 U.S.C. 2165,2201); sec. 201,88 Stat.1242, as amended (42 U.S.C. 5841); E.O.10865,' as amended,3 CFR 1959-1963 Comp.:, p. 398 (50 U.S.C. 401, note); E.O. 12829, 3 CFR,1993 Comp. p. 570; E.O.12958, 3 7 CFR,1995 Comp., p!.333; E.O.12968,3 CFR,1995 Comp., p .396. 4 Appendix A 'also issued under 96 ' Stat.1051 (31 U.S.'C. 9701).
258, in 9 25.5 the definitions of "L" access authorization. National Security Information and "Q" access authorization are revised to read as fnllows:
6 25.5 Definitions.
"L" access authorization means an access authorization granted by the Commission which is normally based on a national agency check with law and credit investigation (NACLC) or an access national agency check and inquiries investigation (ANACl)) conducted by the Office of Personnel Management.
- =* * *.
- 1 National Security information means information that has been determined pursuant to Executive Order 12958 or any predecessor order to require protection against unauthorized disclosure and that is so designated.
42 l
~_
"O" access authorization means an access authorization granted by the Commission normally based on a single scope background investigation conducted by the Office of Personnel
- Management, the Federal Bureau of Investigation, or other U.S. Government agency which conducts personnel security investigations.
269. Section 25.9 is revised to read as follows:
6 25.9 Communications.
Except where otherwise specified, all communications and reports concerning the regulations in this part should be addressed to the Director, Division of Facilities and Security, U.S. Nuclear Regulatory Commission, Washington, DC 20555.
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30 Section 25.11"is' revised to resd as followsi 6 25.11 Specific exemptong
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The NRC may, upon application by any' interested' person or upon its'own initiative, grant exemptions fEom^the requirements of the regulations'of this part; which are-(i) A0thorized by laN, will not present an'dhdue risk to the public hsalth snd safety, snd are ' consistent with'the common defense and securityi or)
(2) Coincidental with'one or more bf ths following:
'(i) Application of the'reguistion in t6s particulai circumstances conflicts with other rules of requirements of the NRC; or (ii) Application"of the regulation in the particular circumstinces would not serve the underlying purpose of tns" rule'of is'not necessary to achieve thiunderlying purpose of the rule; or
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(iii) Coi-Cce would result iri undue hardship or other costs that are sign'ficantly i in excess'of those contemplaied when ths regulation was sdopted, or'thst are significantly in excess
~
of those'insurre' d byotherssimilarlysitusted;or 43
1 l
(iv) The exemption would result in benefit to the common defense and security that compensates for any decrease in the security that may result from the grant of the exemption;'or 1
. , . - ,a -g , , : - . .
(1 (v)The ' exemption would provide only temporary rellof from the applicable regulation and i the licensee or applicant has m$de good faith efforts to comply with the regulation; or 1
4 (vi) There is present any.other material circumstance not considered when the regulation
)
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~ 1 was adopted for'which'it would be in the public interest to grant'an exemption. If such condition is J
. . ~ . . . . .
relied on' exclusively for satisfying paragraph (2) of this section, the exemption may not be )
granted'until the Exebutive Disctof for'Opefations has consulted with the Commission.
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i velthest en eccese autherizetien. lleveever, no NnO er OCA erapicycc l5 permitted accese to any classified inferinat;en Lat;l the approprlete level ef eccess authorizetlen h&5 been granted to that emp;eyce by NCO ci the OCA.
2031. Section 25.19 is revised to read as follows:
6 25.19 Processina aoolications. I 1
l Each application for access authorization or access authorization renewal must be j submitted t, the CSA. If the NRC is the CSA, the application and its accompanying fee must be submitted to the NRC Division of Facilities and Security. If necessary, the NRC Division of Facilities and Security may obtain approval from the appropriate Commission office exercising i
licensing or regulatory authority before processing the access authorization or access authorization renewal request. If the applicant is disapproved for processing, the NRC Division of Facilities and Security shall notify the submitter in writing and return the original application ;
(security packet) and its accompanying fee. ;
2932. In s25.21, paragraph (c) is revised to read as follows:
6 25.21 Determination of initial and continued eliaibility for access authorization, j (c)(1) Except as provided in paragraph (c)(2) of this section, NRC "O" access authorization must be renewed every five years from the date of issuance. Except as provided in (c)(2) of this section, NRC "L" access authorization must be renewed every ten years from the date of issuance. An application for renewal must be submitted at least 120 days before the expiration of the five year period for "O" access authorization and ten-year period for "L" access authorization, and must include:
(i) A statement by the licensee or other person that the individual continues to require access to classified National Security information or Restricted Data; and (ii) A personnel security packet as described in 625.17(d).
4 45 1
1 l
I
(2) ' Renewal applications and the required paperwork are not required for individuals who have a current and active access authorization from another Federal agency and who are subject to a reinvestigation program by that agency that is determined by the NRC to meet the NRC's requirements. (The DOE Reinvestigation Program has been determined to meet the NRC's requirements). For these individuals, the submission of the SF-86 by the licensee or other person to the other government agency pursuant to their reinvestigation requirements will satisfy
' the NRC renewal submission and paperwork requirements,' even if lass than five years hasve passed since the date of issuance or renewal of the NRC "O" accass authorization or if less than 10 years have passed since the date of issuance or renewal of the NRC "L" access authorization.
Any NRC access authorization continued in response to the provisions of this paragraph will, thereafter, not be due for renewal until the date set by the other Government agency for the next reinvestigation of the individual pursuant to the other agency's reinvestigation program. However, the period of time for the initial and each subsequent NRC "O" renewal application to the NRC may not exceed seven years or, in the case of NRC "L" renewal application, twelve years. Any
]
. 1 Individual who is subject to the reinvestigation program requirements of another Federal agency
'but, for administrative or other reasons, does not submit reinvestigation forms to that agency
- within seven years for "O" renewal or twelve years for "L" renewal of the previous submission, l
shall submit a renewal application to the NRC using the forms prescribed in -625.17(d) before the i
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expiration of the seven-year period'for "Q" renewal or twelvei-year period 'f or "L" renewal. '
(3) If the NRC is not the CSA, reinvestigation program procedures and requirements will be set by the CSA.
303. In 925.23, paragraph (a) is revised to read as follows:
6 25.23 Notification of arant of access authorization.
(a) In those cases in which the determination was made as a result of a Personnel 46
Security Hearing or by a Personnel Security Review Panel ; or 3+4. Section 25.25 is revised to read as follows:
6 25.25 Cancellation of reauests for access authorization.
When a request for an individual's access authorization or renewal of access authorization is withdrawn or canceled, the requestor shall notify the CSA immediately by telephone so that the single scope background investigation, national agency check with law and credit investigation, or other personnel security action may be discontinued. The requestor shallidentify the full name and date of birth of the individual, the date of request, and the type of access authorization or access authorization renewal requested. The requestor shall confirm each telephone notification promptly in writing.
305. In 25.27, paragraph (b) is revised to read as follows:
6 25.27 Reocenina of cases in which reauests for access authorizations are canceled.
(b) Additionally, if 90 days or more have elapsed since the date of the last Questionnaire for National Security Positions (SF-86), or CSA equivalent, the individual must complete a personnel security packet (see 25.17(d)). The CSA, based on investigative or other needs, may require a complete personnel security packet in other cases as well. A fee, equal to the amount paid for an initial request, will be charged only if a new or updating investigation by the NRC is required.
396. In $25.31, paragraphs (a), (b), and (c) are revised to read as follows:
6 25.31 Extensions and transfers of access authorizations.
(a) The NRC Division of Facilities and Security may, on request, extend the authorization of an individual who possesses an access authorization in connection with a particular employer or activity, to permit access to classified information in connection with an assignment with 47
another employer or activity.
(b) The NRC Division of Facilities and Security may, on request, transfer an access authorization when an individual's access authorization under one employer or activity is terminated, simultaneously with the individual being granted access authorization for another employer or activity.'
- (c) Requests for extension or transfer of access authorization must state the full name of
. the person, his date of birth and level of access authorization. The Director, Division of Facilities and Security, may require a new personnel security packet (see -925.17(c)) to be completed by
- the applicant.' A fee, equal to the amount paid for an initial request, will be charged only if a new
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or updating investigation by the NRC is required.
347.'In $25.33, paragraphs (a) and (b) are revised to read as follows:
6 25.33 Termination of access authorizations.
(a) Access authorizations will be terminated when:
(1) Access authorization is no longer required; (2) An individual is separated from the employment or the activity for which he or she {
obtained an access authorization for a period of 90 days or more; or (3) An individual, pursuant to 10 CFR Part 10 or other CSA-approved adjudicatory -
. standards, is no longer eligible for access authorization.
- (b) A representative of the licensee or other organization that employs the individual whose access authorization will be terminated shall immediately notify the CSA when the circumstances noted in paragraph (a)(1) or (a)(2) of this section exist; inform the individual the+
his or her access authorization is being terminated, and the reason; and that he or she will b : 4 considered for reinstatement of access authorization if he or she resumes work requiring it.
i p
-48
r 358. In $25.35, paragraph (b) is revised to read as follows:
' 6 25.35 Classified visits.
(b) Representatives of the Federal Government, when acting in their official capacities as i
inspectors, investigators, or auditors, may visit a licensee, certificate holder, or other% facility without furnishing advanced notification, provided these representatives present appropriate Govemment credentials upon arrival. Normally, however, Federal representatives will provide
- advance notification in the form of an NRC Form 277, " Request for Visit or Access Approval," '
with the "need-to-know" certified by the appropriate NRC office exercising licensing or regulatory .
authority and verification of NRC access authorization by the Division of Facilities and Security.
369. In $25.37, paragraph (b) is revised to read as follows:
6 25.37 Violations.
- (b) National Security Information is protected under the requirements and sanctions of Executive Order 12958.
9740. Appendix A to Part 25 is revised to read as follows:
Aooendix A to Part 25-Fees for NRC Access Authorization Category Fee Initial "L" access authorization............. .............................................................. ........ .... ' $100-30 Initial "L" access authorization (expedited processing)................................................. 1 $200-3
- Reinstatement of "L" access a uthorization.... ..... ... . . .. . ... . . .... . ... .. . . ... . . ....... ..... . . . .. .. . .... ... . . .. . . . . .... . .
- t 49
l
$120-30 I Extension or Transfer of "L" access authorization.................................................................... a
$120-30 Renewal of "L" access authorization............................................................................. t $100-30 l Initial "Q" access authorization........... .................................... ......... ...... ........ ............... . $3275
$"2856 Initial "Q" access authorization (expedited processing)................................................. $3000
$3295 Reinstatement of "Q" access authorization................................................................... $0270 $
2856 Reinstatement of "Q" access authorization (expedited processing)............................... a
$9000$3295 Exte nsion or Tra n sf e r of "O".... . . . .. . . ........ . .. . .. . .. . .. . . . .. . . .... . .. . .. .. . ... . . . . . . .. . . ... . . .. . .. .. .. . .... . .. .. . $3075
$ 2856 Extension or Transfer of "O" (expedited processing)..................................................... a
$3000$3295 Renewal of "Q" access authorization............................................................................. i $4700
$'705 1
0041'. The Title of Part 95 is revised to read as follows:
PART 95 - FACILITY SECURITY CLEARANCE AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION AND RESTRICTED DATA 0942. The authority citation for Part 95 continues to read as follows Authority:. Secs. 145,161,193,68 Stat. 942,948, as amended (42 U.S.C. 2165,2201);
sec. 201,88 Stat.1242, as amended (42 U.S.C. 5841); E.O.10865, as amended,3 CFR 50
1959-1963 Comp., p. 398 (50 U.S.C. 401, note); E.O. 12829,3 CFR 1993 Comp., p570p.'570; E.O.12958,as amended,3 CFR 1995 Comp., p.*333; E.O.12968,3 CFR 1995 Comp., pS94p'."
391.
403. In $95.5 the definitions of NRC "L" access authorization, NRC "O" access authorization and security container are revised to read as follows:
6 95.5 Definitions.
NRC "L" access authorization means an access authorization granted by the Commission which is normally based on a national agency check with law and credit investigation (NACLC) or an access national agency check and inquiries investigation (ANACl)) conducted by the Office
- of Personnel Management.
NRC "O" access authorization means an access authorization granted by the Commission normally based on a single scope background investigation conducted by the Office of Personnel Management, the Federal Bureau of Investigation, or other U.S. Government agency which conducts personnel security investigations.
Security container includes any of the following repositories: !
(1) A security filing cabinet--one that bears a Test Certification Label on the side of the locking drawer, inside wall adjacent to the locking drawer, or interior door plate, endor is marked, General Services Administration Approved Security Container on the exterior of the top drawer or l
door.
(2) A safe--burglar-resistive cabinet or chest which bears a label of the Underwriters' Laboratories, Inc. certifying the unit to be a TL-15, TL-30, or TRTL-30, and has a body fabricated of not less than 1 inch steel and a door fabricated of not less than 1 % inches steel 51 l
l exclusive of the combination lock and bolt work; or bears a Test Certification Label on the inside i- .. of the door endor is marked General Services Administration Approved Security Container and has a body of steel at least % " thick, and a combination locked steel door at least 1" thick, exclusive of bolt work and locking devices, and an automatic unit locking mechanism, (3) A vault--a windowless enclosure constructed with walls, floor, roof and door (s) that will delay penetration sufficient to enable the arrival of emergency response forces capable of preventing theft, diversion, damage or compromise of classified information or matter, when delay
' time is assessed in conjunction with detection and communication subsystems of the physical protection system.
' (4) A vault-type room-a room which has a combination lock door and is protected by an intrusion alarm system which alarms upon the unauthorized penetration of a person anywhere i into the room.
(5) Other rep':/ bries which in the judgment of the Division of Facilities and Security would provide comparavie physical protection.
. . . . . I
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M. fin $95.8,' paragraph'(b) is revised to 'read as foll6wsi
~4 95.8 information collection roouirements: OMB approval.
[ I * *
~
. (b) The approved information"collectiorirequirements contained iri this part appoa'r in
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$$95.15,' 95.15, 9537, 95.18[95.21, 95.25, 95.33, 95.34,'95' 36', 95.37, 95.39, 95.41, 95.43, 95 45,95.47, 95.53, ahd95.57.
4+5. Section 95.9 is revised to read as follows:
~ 6 95.9 Communications.
Except where otherwise specified, all communications and reports concerning the regulations in this part should be addressed to the Director, Division of Facilities and Security, 52 i.
Nuclear Regulatory Commission, Washington, DC 20555.
- 46. Section '95.11 is resised to rea'd'as followsi 6 95.11 Specific exemptions
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The NRC may, upon"aphilcation by any interisted pirson' or'upon its own initistive, grant exemptions from the iroquirements of the' regulations of this'part, whicharel (1) Authorized by lad siill hot present an undue risk t6 the public health and safety,'an'd
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are consistent'with the' common defense 5nd securitp; or,
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(2) Coincidental with on's or.mors of the following:
(i)' Application of.th's 'regdiatidn 16 the pArticular circums'tances cdnflists with othsr rules or
" requirements of the NRC'; oi (ii) Application of the ' reg61stion'in ths psrticulai.circumstsnces would not se'rve' the undertying" purpose of t6e rule or is not necessary to' achieve the underlying purpose of the rule; or
- (iii) Compliance'would result in undde hardship' o'r other costs thai'are significantly' in
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excess of'those contemplated When the regulation was adSpted,'or that'are significantly in excess
~
of'those incurrsd bYothers similarly situated; oi
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(is)'The exemptish would result in tsenefit to the common" defense And ' security th'at compensates fdr anyldesrease in security that may result from~ the grant of the exemption; or
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- (v) The"exernption would' provide only temporary relief from ths" applicable regblaiion and
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the licehsee'er applicant has'made good faith ~ efforts to comply.with the regstatiod; or
- (vi) Tlie're'is present'any othsfmaiorial 6ircumstance not considered' when the regulation
~
was' adopt 6d"for which'It'would be in'ths public interest'to grant'an exemption'. lf such"cohdition'is
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feiidon 5xclusively for satisfying' para' raph g (2) of this'section, the ' exemption may not be
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iMiteid until thA EsAcutive'Directdr for.Opefatiohs has consulted with the Commission.
427. In $95.15, paragraph (a) is revised to read as follows:
53
6 95.15 Acoroval for orocessina licensees and others for facility clearance.
(a) A licensee, certificate holder, or other person who has a need to use, process, store, reproduce, transmit, transport, or handle NRC classified information at any location in connection with Commission related activities shall promptly request an NRC facility clearance. This specifically includes situations where a licensee, certificate holder, or other person needs a contractor or consultant to have access to NRC classified information, or others who require 1
access to classified information in connection with NRC regulated activities, but do not require use, storage, or possession of classified information outside of NRC facilities. However, it is not necessary for a licensee, certificate holder, or other person to request an NRC facility clearance for access to another agency's classified information at that agency's facilities or to store that agency's classified information at their facility, provided no NRC classified information is involved and they meet the security requirements of the other agency. .lf NRC classified information is involved, the requirements of 95.17 apply.
438. In @95.17, the introductory text of paragraph (a) and paragraph (a)(1) are revised to read as follows:
6 95.17 Processina facility clearance.
(a) Following the receipt of an acceptable request for facility clearance, the NRC will l
either accept an existing facility clearance granted by a current CSA and authorize possession of l l
license or certificate related classified information or process the facility for a facility clearance.
Processing will include-- )
1 1
(1) A determination based on review and approval of a Standard Practice Procedures l Plan that granting of the Facility Clearance would not be inconsistent with the national interest, l including a finding that the facility is not under foreign ownership, control, or influence to such a degree that a determination could not be made. An NRC finding of foreign ownership, control, or 54
influence is based on factors concerning the foreign intelligence threat, risk of unauthorized technology transfer, type and sensitivity of the information that requires protection, the extent of foreign influence, record of compliance with pertinent laws, and the nature of international security and information exchange agreements. The licensee, certificate holder, or other person is required to advise NRC within 30 days of any significant events or changes that may affect its status concerning foreign ownership, control, or influence (e.g., changes in ownership; changes that affect the company's answers to original FOCl questions; indebtedness; and changes in the required form that identifies owners, officers, directors, and executive personnel) 449. Section 95.19 is revised to read as follows:
6 95,19 Chanoes to security oractices and procedures.
(a) Except as specified in paragraph (b) of this section, each licensee, certificate holder or other person shall obtain prior CSA approval for any proposed change to the name, location, security procedures and controls, or floor plan of the approved facility. i A written description of the proposed change must be furnished to the CSA with copies to the Director, Division of Facilities and Security, Office of Administration, NRC, Washington, DC 20555-0001 (if NRC is not the CSA), and the NRC Regional Administrator of the cognizant Regional Office listed in appendix A of part 73. These substantive changes to the Standard Practice Procedures Plan that
-affect the security of the facility must be submitted to NRC Division of Facilities and Security, or CSA, at least 30 days prior to the change so that itthey may be evaluated.- The CSA shall
. promptly respond in writing to all such proposals. Some examples of substantive changes requiring prior CSA approval include -
(1) A change in the approved facility's classified mail address; or (2) A temporary or permanent change in the location of the approved facility (e.g., moving or relocating NRC's classified interest from one room or building to another). Approved changes 55
c will be reflected in a revised Security Practices er,d Standard Practice Procedures Plan submission within 30 days of approval. Page changes rather than a complete rewrite of the plan may be submitted.
(b) A licensee or other person may effect a minor, non-substantive change to an approved Standard Practice Procedures Plan for the safeguarding of classified information without receiving prior CSA approval. These minor changes that do not affect the security of the facility may be submitted to the addressees ..oted in paragraph (a) of this section within 30 days of the change. Page changes rather than a complete rewrite of the plan may be submitted. Some examples of minor, non-substantive changes to the Standard Practice Procedures Plan include -
(1) The designation / appointment of a new facility security officer; or (2) A revision to protective personnel patrol routine, provided the new routine continues to meet the minimum requirements of this part. I (c) A licensee, certificate holder, or other person must update its NRC facility clearance every five years either by submitting a complete Standard Practice Procedures Plan or a cehification that the ' existing plan is fully current to the Division of Facilities and Security. at lesst every 5 years.
l 4550. Section 95.20 is revised to read as follows:
6 95.20 Grant. denial or termination of facility clearance.
The Division of Facilities and Security shall provide notification in writing (or orally with written confirmation) to the licensee or other organization of the Commission's grant, acceptance of another agency's facility clearance, denial, or termination of facility clearance. This information must also be furnished to representatives of the NRC, NRC licensees, NRC certificate holders, NRC contractors, or other Federal agencies having a need to transmit classified information to the licensee or other person.
4651. Section 95.21 is revised to read as follows:
j 56 l l
1
6 95.21 Withdrawal of reauests for facility security clearance.
When a request for facility clearance is to be withdrawn or canceled, the requester shall notify the NRC Division of Facilities and Security in the most expeditious manner so that processing for this approval may be' terminated. [The notification must identify the full name of the
~
individual requesting discontinuance, his or her' position with the facility, and the full identification of the facility.IThe requestor shall confirm the telephone notification promptly in writing.
4752. In 595.25, the introductory text of paragraph (a), paragraphs (a)(2), (b), (c)(2), (f),
(g), (h), (i), (j)(6), and (j)(7) are revised to read as follows:
! 95.25 Protection of National Security Information and Restricted Data in storaae.
(a) Secret matter, while unattended or not in actual use, must be stored in--
(2) Any steel file cabinet that has four sides and a top and bottom (all permanently attached by welding, rivets, or peened bolts so the contents cannot be removed without leaving visible evidence of entry) and is secured by a rigid metal lock bar and an approved key operated or combination padlock. iThe keepers of the rigid metal lock bar must be secured to the cabinet l
by welding, rivets, or bolts, so they cannot be removed and replaced without leaving evidence of l
' the entry. The drawers of the container must be held securely so their contents cannot be I removed without forcing open the drawer. This type cabireet will be accorded supplemental
- protection during non-working hours. .
i
. (b) Confidential matter while unattended or not in usa must be stored in the same l manner as SECRET matter except that no supplemental protection is required.
- (c) *
(2) Combinations must be changed by a person authorized access to the contents of the )
container, or by the Facility Security Officer or his or her designee.
57
(f) Combinations shall be changed only by persons authorized access to Secret or Confidential National Security information and/or Restricted Data depending upon the matter authorized to be stored in the security container.
(g) Posted information. Containers may not bear external markings indicating the level of classified matter authorized for storage. A record of the names of persons having knowledge of the combination must be posted inside the container.
i (h) End of day security checks. J (1) Facilities that store classified matter shall establish a system of security checks at the close of each working day to ensure that all classified matter and security repositories have been appropriately secured.
(2) Facilities operating with multiple work shifts shall perform the security checks at the end of the last working shift in which classified matter had been removed from storage for use.
l The checks are not required during continuous 24-hour operations.
(i) Unattended security container found opened. If an unattended security container !
housing classified matter is found unlocked, the custodian or an alternate must be notified )
I immediately-T and the container inust be secured by protective personnel-and. ' An effort must
~
be made to determind if the contents inventer ed as seen as pese:bie bewere compromised not !
later than the next workday day. A reped ,eflect;ng all actions taken ingst be subinltted te the
, seepen5;ble neglena: Office (lig 10 OIn part 70, Append lx A, for addresees) wlth an lnferination cepy to the NnO OMe en of rac;l ales and Oscurity within OO days after the event. The llcenx; shall retaln recerde pertalnlng te these inetters for 0 years after cernpietlen of fina; corrective actroit:
g) . .
(1) A key and lock custodian shall be appointed to ensure proper custody and handling of 58
keys and locks used for protection of classified matter; (6) Keys and spare locks must be protected equivalent to the level of classified matter involved; (7) Locks must be changed or rotated at least every 12 months, and must be replaced after loss or c~o mpromise of their operable keys; and l 4053. Section 95.27 is revised to read as follows:
6 95.27 Protection while in use.
While in use, classified matter must be under the direct control of an authorized individual to preclude physical, audio, and visual access by persons who do not have the prescribed access authorization or other written CSA disclosure authorization (see 9-95695.36 for additional information concerning disclosure authorizations).
4954. In $95.29, paragraphs (a), (c)(2), and (c)(4) are revised to read as follows:
6 95.29 Establishment of restricted or closed areas.
(a) If, because of its nature, sensitivity or importance, classified matter cannot otherwise be offectively controlled in accordance with the provisions of $$95.25 and 95.27, a Restricted or Closed area must be established to protect such matter.
(c) *
(2) Access must be limited to authorized persons who have an appropriate security clearance and a need-to-know for the classified matter within the area. . Persons without the appropriate level of clearance and/or need-to-know must be escorted at all times by an authorized person where inadvertent or unauthorized exposure to classified information cannot otherwise be effectively prevented.
59
(4) Open shelf or bin storage of classified matter in Closed Areas requires CSA approval.
Only areas protected by an approved intrusion detection system will qualify for approval.
505. In s95.33, paragraph (f) is revised to read as follows:
6 95.33 Security education.
(f) Refresher Briefings. The licensee or other facility shall conduct refresher briefings for all cleared employees every 3 years. As a minimum, the refresher briefing must reinforce the information provided during the initial briefing and inform employees of appropriate changes in security regulations. This requirement may be satisfied by use of audio / video materials and and/or by issuing written materials.
5+6. A new s95.34 is added to read as follows:
6 95.34 Control of visitors (a) Uncleared visitors. Licensees, certificate holders, or others subject to this part shall take measures to preclude access to classified information by uncleared visitors.
(b) Foreign visitors. Licensees, certificate holders, or others subject to this part shall take measures as may be necessary to preclude access to classified information by foreign visitors.
The licensee, certificate holder, or others shall retain records of visits for 5 years beyond the date of the visit.
(1) The names, dates of birth, and organizational affiliation and status (e.g., resident aliens, dual citizenship) of foreign visitors shall be provided to the Division of Facilities and Security 60 days in advance of the visit. Unless an objection to the visit is received from the NRC Division of Facilities and Security within the 60 day period, the visit may proceed as scheduled.
(2) The ;kenn, cert;fkete he; der, er othere shall rnte;n recerde of wiene for 5 yeare 60
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pereenne ethei then preperly eccese evtherl zed Ocinrniee:en ticenecc eraplcyces, ei other lndMdusle esther l zed eccees by the Ocmmlee:en.
(c) Accese to clesemed nettenel eecurity informetion et NnO-ll censed feclll::ee by 20therized repicecatet. ace of lACA le perinitted ln ecccidence # h G05.00 cf thle pert.
597. In $95.36, paragraphs (a), (c), and (d) are revised to read as follows:
6 95.36 Access by representatives of the International Atomic Enerav Aaency or by particioants in other international aareements.
(a) Based upon written disclosure authorization from the NRC Division of Facilities and Security that an individual is an authorized representative of the international Atomic Energy Agency (IAEA) or other international organization and that the individual is authorized to make visits or inspections in accordance with an established agreement with the United States Government, a licensee, certificate holder or other person subject to this part shall permit the individual (upon presentation of the credentials specified in $75.7 of this chapter and any other credentials identified in the disclosure authorization) to have access to matter which is classified National Security Information that is relevant to the conduct of a visit or inspection.: A disclosure authorization under this section does not authorize a licensee, certificate holder, or other person subject to this part to provide access to Restricted Data.
(c) In accordance with the specific disclosure authorization provided by the Division of Facilities and Security, licensees, or other persons subject to this part are authorized to release l
(i.e., transfer possession of) copies of documents which contain classified National Security j 1
Information directly to IAEA inspectors and other representatives officially designated to request and receive classified National Security Information documents. -These documents must be marked specifically for release to IAEA or other international organizations in accordance with instructions contained in the NRC's disclosure authorization letter. Licensees and other persons )
62 l
l
o subject to this part may also forward these documents through the NRC to the international
- organization's headquarters in accordance with the NRC disclosure authorization. Licensees and other persons may not reproduce documents containing classified National Security Information except as provided in $95.43.
(d) Records regarding these visits and inspections must be maintained for 5 years beyond the date of the visit or inspection. iThese records must specifically identify each document which has been released to an authorized representative and indicate the date of the release.i These records must also identify (in such detail as the Division of Facilities and Security, by letter, may require) the categories of documents that the authorized representative has had access and the date of this access.s} A licensee or other person subject to this part shall also retain Division of Facilities and Security disclosure authorizations for 5 years beyond the date of any visit or inspection when access to classified information was permitted.
548. In $95.37, paragraph (c)(1)(iv) is removed and paragraphs (c)(1)(l) and (h)(2) are revised to read as follows:
6 95.37 Classification and orecaration of documents.
(c) *
, (1) * * *
(i) Derivative classifications of classified National Security Information must contain the identity of the source document or the classification guide, including the agency and office of origin, on the " Derived From" line and its classification date. If more than' one source is cited, the
" Derived From" line should indicate " Multiple Sources." The derivative classifier shall maintain the identification of each source with the file or record copy of the derivatively classified document.
63
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(h)*
(2) In the event of a question regarding classification review, the holder of the information or the authorized classifier shall consult the NRC Division of Facilities and Security, Information Security Branch, for assistance.
559. In f95.39, paragraphs (b)(3) and (c)(2) are revised to read as follows:
6 95.39 Extemal transmission of classified matter 1
(b)*
(3) The outer envelope or wrapper must contain the addressee's classified mailing address. The outer envelope or wrapper may not contain any classification, additional markino e other notation that indicate that the enclosed document contains classified information. The Classified Mailing Address shall be uniquely designated for the receipt of classified information.
The classified shipping address for the receipt of material (e.g., equipment) should be different from the classified mailing address for the receipt of classified documents.
(c)*
(2) Confidential matter may be transported by one of the methods set forth in paragraph i
(c)(1) of this section, by U.S. express or certified mail. Express or certified mail may be used in transmission of Confidential documents to Puerto Rico or any United States territory or possession.
5660. In 695.45, paragraph (a) is revised to read as follows:
6 95.45 Chanaes in classification.
64 i
l
)
f I
(a) Documents containing classified National Security Information must be downgraded or declassified as authorized by the NRC classification guides or as determined by the NRC.
Requests for downgrading or declassifying any NRC classified information should be forwarded to the NRC Division of Facilities and Security, Office of Administration, Washington, DC 20555-0001. Requests for downgrading or declassifying of Restricted Data will be forwarded to the NRC Division of Facilities and Security for coordination with the Department of Energy.
5761. Section 95.47 is revised to read as follows:
l 6 95.47 Destruction of matter containina classified information.
Documents containing classified information may be destroyed by burning, pulping, or another
{
method that ensures complete destruction of the information that they contain. 3The method of destruction must preclude recognition or reconstruction of the classified information. Any doubts on methods should be referred to the CSA.
5062. Section 95.53 is revised to read as follows:
6 95.53 Termination of facility clearance.
(a) If the need to use, process, store, reproduce, transmit, transport, or handle classified matter no longer exists, the facility clearance will be terminated. ;The facility may deliver all documents and matter containing classified information to the Commission or to a person authorized to receive them or destroy all such documents and matter. In either case, the facility shall submit a certification of nonpossession of classified information to the NRC Division of Facilities and Security within 30 days of termination of facility clearance.
(b) In any instance where facility clearance has been terminated based on a determination of the CSA that further possession of classified matter by the facility would not be in the interest of the national security, the facility shall, upon notice from the CSA, dispose of classified documents in a manner specified by the CSA.
65
5963. Section 95.57 is revised to read as follows:
6 95.57 Reports.
Each licensee or other person having a facility clearance shall report to the CSA and the Regional Administrator of the appropriate NRC Regional Office listed in 10 CFR part 73, Appendix A, (a) Any alleged or suspected violation of the Atomic Energy Act, Espionage Act, or other Federal statutes related to classified information'(e.g., deliberate disclosure of classified
]
informatido to' persons not authorized to receive it, theft of slassified information). Incidents such as this must be reported within 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> of the event followed by written confirmation within 30 days of theincident; ,
(b) Any infractions, losses, compromises or possible compromise of classified information or classified documents not falling within paragraph (a) of this section. Incidents such as these must be reported vie entered into a written netifice ;en veh;n 00 doye of the ;nc; dent. The report l
ehe;l !ac;ede de:e;le of the ;nc! dent log, a copy of which is to'be provided to NRC on a monthly !
basis? Details of security infractions including corrective action taken; must be ava'lable i to the CSA upon request. !
(c) in addition, NRC requires records for all classification actions (documents classified, declassified, or downgraded) to be submitted to the NRC Division of Facilities and Security.
~
These may be submitted either on an "as completed" basis or every 00 days monthly. The information may be submitted either electronically by an on-line system (NRC prefers the use of a dial-in automated system connected to the Division of Facilities and Security) or by paper copy using NRC Form 790.
66
)
Dated at Rockville, Maryland, this day of I ,19909.
For the Nuclear Regulatory Commission.
EWilliam D. Jcasph ca;ler. Travers' Executive Director for Operations.
4 i
67
Acoroved for Publication The' Commission has delegated to the EDO (10 CFR 1.31(c))'the authority to develop and promulgate rules as defined in the APA (5 U.S.C. 551(4)), subject to the limitations specified in NRC Management Directive 9.17, " Organization and Functions, Office of the Executive Director for Operations," paragraphs 0213, 038,039, and 0310.
The attached final rule entitisd, "Conformance to National Policies for Access to and Protection of Classified Information," amends 10 CFR Part 2," Rules of Practice for Domestic Licensing Proceedings and issuance of Orders;" Part 10. " Criteria and Procedures for Determining Eligibility for Access to Restricted Data or National Security information or an Employment Clearance;"
Part II, " Criteria and Procedures for Determining Eligibility for Access to or Control Over Special Nuclear Material;" Part 25, " Access Authorization for Licensee Personnel;" and Part 95, " Security Facility Approval and Safeguarding of National Security Information and Restricted Data," to conform them to new national security policies established by Executive Orders 12958 and 12968, and the National Industrial Security Program Operating Manual.
This final rule does not constitute a significant question of policy, nor does it amend reg'ulations contaired in 10 CFR Parts 7,8, or 9 Subpart C concerning matters of policy. I therefore find that this rule is within the scope of my rulemaking authority and am proceeding to issue it.
Date William D. Travers, l Executive Director for. Operations.
l 1
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REGULATORY ANALYSIS
- 1. Statement of Problem On April 17,1995, and August 2,1995, the President signed Executive Orders 12958,
" Classified National Security information," and 12968, " Access to Classified information,"
respectively, which revised requirements for handling, protecting, and accessing classified information. The requirements of these national security policy documents, and their implementing documen;e directives are applicable to licensees, certificate holders, and.
others regulated by NRC. The .effect of the Executive Orders and the National Industrial Security Program Operating Manual (NISPOM) is that 10 CFR Part 10, " Criteria and Procedures for Determining Eligibility for Access to Restricted Data or National Security information or and Employment Clearance;" 10 CFR Part 11, " Criteria and Procedures for ,
Determining Eligibility for Access to or Control Over Special Nuclear Material;" 10 CFR
' Part 25, " Access Authorization for Licensee Personnel;" and 10 CFR Part 95, " Security Facility Approval and Safeguarding of National Security Information and Restricted Data,"
are no longer consistent with national security policies and directives.-
Adetionally, the NGO must republlsh, fer edd;;;enal psblic comment, ss25.15 end ^5.05 whlch addiees the personnel security inveetlgatie requirements for access to Oecre; neeticted Ca:a. These proposed changes were erlginal y pub llshed as a proposed rLlemeklng en August 5,1^^0 (01 In 40555), end weeld h&ve perm l:ted eccess te most Cecie; nestrlcted Oa a i.;;h en "L" clearance based on & No;;ene: Agency Check i.;;h lnquiries and Oredit Check (NAOlO). The Depadmen; of Onergy (000) ebjected to these I
chengee and recommended tha;, pend lng de:ermlna;;en of wha; cene: .ates the most sene:Gie nee:ricted Ca:a &nd its upgrade to Top Cecret, s!l pereennel wi;h access to Cecret neo r;c;ed Da:a con:,,,06 :o heve a "O" clearance base ' en & Oingle Ocepe Deckgreund invest; gat;en (000;). Oecause this requirement m&y exceed the requlremente of app;; cab;e nadenel pellcy (i.e., the NlOPO".i), and reeult in edd; Gena l I costa
~ . , , . te
, _ ;;cen;cce
. end ceit;flcate he;ders, the NnO w :hdrew n__,_,___,,__.x,.___.,~,-_ . :he chenges to s,s25.151!md
.,...-,-n. - -_, l W W . Ve# IE 4 L3 IU lli 191 4 W3UII ben 31Ig TYI IMal 5 TT G'J f WWIIGs IUM V3 4 MPI B4 5 3, 5 e'7 G f gVL 5 I1 E i VV%Ff g GIIW e a;od they wesid be repub ehed at a later date for add { Gena: pub !c commcat. _ . _
a comment was received during the' comment period requesting a minor clarifying change to 62.790(d) of 10 CFR Part 2, " Rules of Practice For Domestic Licensing Proceedings And issuance'of Orders," to specifically include classified material protection plans within its coverage.
Finally, a reorganization within the Office of Administration requires editorial changes to _.
those portions of the regulations indicating to whom specific reports are to be forwarded, j
and to reflect a change in responsibilities for certain decisions from the Executive Director for. Operations to the Deputy Executive for Management Services.
- 2. Obiective l 2
The objective of this regulatory initiative is to conform NRC's regulations for access to and the protection of classified information at licensee, certificate holder, and other NRC regulated facilities possessing or having employees with access to classified information, with national policies for the protection of such information. Alee, the objecitee le te reeets; the preJlovely deferred propese: cencernlng the lrrsceSget se requl ret, ente for eccess te Oscret Ocetdcted Oete.
- 3. - Alternatives There is no reasonable alternative to the revision of these regulations that would achieve the desired result.
4.' Conseauences There are approximately 20 affected entities licensed or otherwise regulated by the NRC.
Each licensee, certificate holder, or other entity who requires access to National Security information or Restricted Data to conduct official business related to an NRC-regulated activity must have a facility clearance under the provisions of Part 95. _ individuals, other-than USEC personnel who are cleared by DOE, who have access to classified information must have a personnel security clearance granted to them under Part 25 by NRC, which are adjudicated under the criteria and procedures of Part 10. Also, each licensee who requires access to or control over formula' quantities of special nuclear material requires
. the individuals with such control or access to undergo personnel security screening under Part 11.
l These entities will be required to_ comply with the requirements of 10 CFR Parts 11,25 and 95, which will involve costs to these entities. In most cases, there will be minor revisions to
)
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Tec,l,ty Oscudty Standards Practice Procedures Plans required to conform to new or .
revised requirements for access to classified information or Sspecial Nnuclear Mmaterial or protection of classified information. Individuals who have already been cleared for access to classified information or Sspecial Nnuclear Mmaterial will be not be required to prepare additional or revised paperwork except, perhaps at the time of a regularly scheduled reinvestigation. !The costs, however, should be no higher than under the current regulatione, end .T,ey be le's.;;if the prepeeed pereennel eecsdty requ,reniente for eccese te Osmet ncetdcted Dete era edepted. These changes will not have an impact on other NRC programs or requirements at these facilities.
- 5. Decision Rationale
-The only available method of imposing these requirements on selected licensees and others is to revise 10 CFR Parts 2,L10,11,25, and 95. Other avenues would lack the requisite formality and legality necessary to require all affected NRC licensees and ottiers to adhere to the changes in requirements for the protection of classified information.
- 6. Imolementatio_r1 i
3 l
The Division of Facilities and Security intends to publish the -- "" " ****" "9 10 CFR Parts 2,$10,11,25, and 95 by AugustMarch 31,199E, 9 1
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DAILY STAFF NOTES OFFICE OF ADMINISTRATION Final Rule sianed by EDO l
On . the Executive Director for Operations approved a prepcsed final rule which revises 10 CFR Parts 2,10,11,25, and 95 to conform NRC regulations to current national security policies for access to classified information at NRC and NRC regulated facilities and the protection of classified information at industrial facilities, e.g., licensees and certificate
- holders. It also revises these parts to reflect a reorganization of the Office of Administration and the redelegation of certain authorities to the Deputy Executive Director for Management Services.
This constitutes notice to the Commission that, in accordance with the rulemaking authority delegated to the EDO, the EDO has signed this prepceed final rule for publication in the Federal Register.