ML23156A068

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PR-025 - 56FR36113 - NRC Licensee Reinvestigation Program
ML23156A068
Person / Time
Issue date: 07/13/1991
From: Taylor J
NRC/EDO
To:
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PR-025, 56FR36113
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ADAMS Template: SECY-067 DOCUMENT DATE: 07/13/1991 TITLE: PR-025 - 56FR36113 - NRC LICENSEE REINVESTIGATION PROGRAM.

CASE

REFERENCE:

PR-025 56FR36113 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

STATUS OF RULEMARING PROPOSED RULE: PR-025 OPEN ITEM (Y/N) N RULE NAME: NRC LICENSEE REINVESTIGATION PROGRAM.

PUB.

PROPOSED RULE FED REG CITE: 56FR36113 PROPOSED RULB PUBLICATION DATE: 07/13/91 NUMBER OF COMMENTS: 1 ORIGINAL DATE FOR COMMENTS: 09/13/91 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 56FR03719 FINAL RULE PUBLICATION DATE: 01/31/92 NOTES ON PROPOSED AND FINAL RULE SIGNED BY EDO. FILE LOCATED ON Pl.

STATUS OF RULE TO FIND THE STAFF CONTACT OR VIEW THE RULEMARING HISTORY PRESS PAGE DOWN KEY HISTORY OF THE RULE PART AFFECTED: PR-025 RULE TITLE: NRC LICENSEE REINVESTIGATION PROGRAM.

PUB.

OPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: I I FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: SRM DATE: I I SIGNED BY SECRETARY: 02/06/92 STAFF CONTACTS ON THE RULE CONTACTl: DUANE G. KIDD MAIL STOP: 5721MNBB PHONE:

CONTACT2: MAIL STOP: PHONE:

DOCKET NO. PR-025 (56FR36113)

In the Matter of NRC LICENSEE REINVESTIGATION PROGRAM.

PUB.

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

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10101191 10/01/91 COMMENT OF BABCOCK l WILCOX, NAVAL NUC. FUEL DIV.

(R. W. CARSON, JR.) ( 1) 01/22/92 01/17/92 FEDERAL REGISTER NOTICE - FINAL RULE

DOCKET N PROPOS

  • 92 Jn 22 A9 :23 NUCLEAR REGULATORY COMMISSION 10 CFR Part 25 RIN 3150 - AD86 NRC Licensee Reinvestigation Program AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission is amending its regulations to require a reinvestigation program for NRC licensee personnel with "Q" and "L" access authorizations and to amend the fee schedule to recover the investigative costs. The reinvestigation program is consistent with the Department of Energy's program for its contractors and is consistent with NRC's policy of reinvestigating its own employees, consultants, contractors, experts and panel members. This amendment is necessary to achieve a higher level of assurance that licensee personnel with access to Restricted Data or National Security Information remain eligible for such access.

3/3,/q~

Effective Date: (60 days after the date of publication in the Federal Register)

FOR FURTHER INFORMATION CONTACT: Duane G. Kidd, Division of Security, Office of Administration, U. s. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-4127.

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SUPPLEMENTARY INFORMATION:

Background

The NRC currently requires a reinvestigation every five years for its employees, consultants, contractors, experts, and panel members with "Q" or "L" access authorization, but does not require a reinvestigation for licensee personnel with the same level of access authorizations. A recommendation was made in the 1988 GAO Report "NRC's Security Clearance Program Can be Strengthened" and amplified in 1989 hearings before Congressman Synar that NRC have a reinvestigation program for its "L" cleared employees, consultants, contractors, experts, and panel members to assure their continued reliability, integrity, and trustworthiness. The rationale behind that recommendation applies equally to licensee personnel with "L" and "Q" access authorizations.

The final rule establishes the requirement that licensee cess authorizations were granted five or more ct to a reinvestigation similar in scope to RC employees and contractors and consistent by the Department of Energy for its con-crac-cor::. wuv ..... ;e access to Restricted Data or National Security Information. The final rule also amends Appendix A "Fees for N~C Access Authorization" to recover the costs of the reinvestigations required by these changes. The rule does, however, allow for recognition of other Federal agencies',

principally the Department of Energy's, reinvestigations. In 2

cases where NRC can verify an appropriate reinvestigation by another Federal agency, there is no charge to the licensee or other organization. Where there is no other reinvestigation, or the reinvestigation does not meet NRC requirements, the fee is assessed. However, the assessed fee is usually nominal, as reflected in Appendix A.

Public Comments On July 31, 1991, the Commission published a proposed rule for comment in the Federal Register (56 FR 36113) to require a reinvestigation program for NRC licensee personnel with "Q" and "L" access authorizations and amend the fee schedule to recover investigative costs. The comment period expired on September 13, 1991. one comment was received from the public on October 7, 1991, after the comment period had closed. The comment concurred with the concept of the proposed reinvestigation program but objected to a procedural aspect of its implementation.

Specifically, the proposed rule would have required a licensee to submit duplicate original applications for reinvestigation both to NRC and to any other Federal agency conducting reinvestigations in those cases where a licensee was subject to both programs. The commenter recommended that an original packet be submitted to only one agency, and that the licensee provide NRC with an abbreviated format listing critical identifying data for the employee and information concerning the reinvestigation package submitted to the other agency (e.g., DOE). Since the 3

paperwork burden on affected licensees would be substantially reduced by the commenter's recommendations and copies of the original security clearance package can be obtained from the reinvestigating agency, if required in specific individual cases, this comment has been adopted and the final rule revised to adopt this comment.

Environmental Impact: Categorical Exclusion The NRC has determined that this final regulation is the type of action described as a categorical exclusion in 10 CFR 51.22(c) (1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

Paperwork Reduction Act statement This final rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 u.s.c. 3501 et seq.). These requirements were approved by the Office of Management and Budget, approval number 3150-0046.

Regulatory Analysis The Commission has prepared a regulatory analysis on this final regulation. The analysis examines the costs and benefits or the alternatives considered by the Commission. The analysis is available for inspection in the NRC Public Document Room, Room LL6, 2120 L Street, NW. (Lower Level), Washington, DC. Single 4

copies of the regulatory analysis may be obtained from Duane G.

Kidd, Division of Security, Office of Administration, u. s.

Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-4127.

Regulatory Flexibility Certification Based upon the information available at this stage of the rulemaking proceeding and in accordance with the Regulatory Flexibility Act, 5 u.s.c. 605(b), the Commission certifies that this final rule does not have a significant economic impact on a substantial number of small entities. This rulemaking only applies to those licensees and others who generate, receive, safeguard and store National Security Information or Restricted Data (as defined in 10 CFR Part 25). Approximately 31 NRC licensee and other license related interests are affected under the provisions of 10 CFR Part 25. Because these licensees are not classified as small entities as defined by the NRC's size standards (December 9, 1985; 50 FR 50241), the Commission finds that this rule does not have a significant economic impact upon a substantial number of small entities.

5

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does apply to this final rule because it falls within the criteria of 10 CFR Part 50.109(a) (1), but that a backfit analysis is not required because this final rule qualifies for exemption under 50.109(a) (4) (iii) that reads "That the regulatory action involves * *

  • redefining what level of protection to the * .

common defense and security should be regarded as adequate."

List of Subjects 10 CFR Part 25 Classified information, Criminal penalty, Investigations, Reporting and recordkeeping requirements, Security measures.

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. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 25.

PART 25 - ACCESS AUTHORIZATION FOR LICENSEE PERSONNEL

1. The authority citation for Part 25 continues to read as follows:

AUTHORLTY: 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.,

6

p.398 (50 U.S.C. 401, note); E.O. 12356, 47 FR 14874, April 6, 1982.

Appendix A also issued under 96 Stat. 1051 (31 u.s.c. 9701).

For the purposes of sec. 223, 68 Stat. 958, as amended, (42 u.s.c. 2273), §§ 25.13, 25.17(a), 25.33(b) and (c) are issued under sec. 161i, 68 Stat. 949, as amended (42 u.s.c. 2201(i));

and§§ 25.13 and 25.33(b) are issued under sec. 1610, 68 Stat.

950, as amended (42 u.s.c. 2201(0)).

2. In §25.8, paragraph (c) is revised to read as follows:

§25.8 Information collection requirements: 0MB approval.

(c) This part contains information collection requirements in addition to those approved under the control number specified in paragraph (a) of this section. These information collection requirements and the control numbers under which they are approved are as follows:

(1) In§§ 25.17(b), 25.21(c), 25.27(a), 25.29, and 25.31, NRC Form 237 is approved under control number 3150-0050.

(2) In§§ 25.17(c), 25.21(c), 25.27(b), 25.29, 25.31, SF-86 is appro~ed under control number 3150-0007.

(3) In§ 25.21(b), NRC Form 354 is approved under control number 3150-0026.

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(4) In§ 25.33, NRC Form 136 is approved under control number 3150-0049.

(5) In§ 25.35, NRC Form 277 is approved under control number 3150-0051.

3. In §25.17, paragraph (e) is revised to read as follows:

§25.17 Approval for processing applicants for access authorization.

(e) Applications for access authorization or access authorization renewal processing must be accompanied by a check or money order, payable to the United States Nuclear Regulatory Commission, representing the current cost for the processing of each "Q" and "L" access authorization, or renewal request.

Access authorization and access authorization renewal fees will

  • be published each time the Office of Personnel Management notifies NRC of a change in the rates it charges NRC for the conduct of investigations. Any such changed access authorization or access authorization renewal fees will be applicable to each access authorization or access authorization renewal request received upon or after the date of publication. Applications from individuals having current Federal access authorizations may be processed more expeditiously and at less cost, since the Commission may accept the certification of access authorization 8

and investigative data from other Federal Government agencies that grant personnel access authorizations.

4. Section 25.19 is revised to read as follows:

§ 25.19 Processing applications.

Each application for access authorization or access authorization renewal, together with its accompanying fee, must be submitted to the NRC Division of Security. If necessary, the NRC Division of Security may obtain approval from the appropriate Commission office exercising 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 Security shall notify the submitter in writing and return the original application (security packet) and its accompanying fee.

  • 5. In §25.21, paragraph (a) is revised and paragraph (c) is added to read as follows:

§ 25.21 Determination of initial and continued eligibility for access authorization.

(a) Following receipt by the NRC Division of Security of the reports of the personnel security investigations, the record will be reviewed to determine that granting an access authorization or renewal of access authorization will not endanger the common defense and security and is clearly consistent with the national 9

interest. If such a determination is made, access authorization will be granted or renewed. Questions as to initial or continued eligibility will be determined in accordance with Part 10 of Chapter I.

(c) (1) Except as provided in paragraph (c) (2) of this section, NRC "Q and "L" access authorizations expire five years from the date of issuance. If a continued "Q" or "L" access authorization is required, an application for renewal must be submitted at least 120 days prior to its expiration date.

Failure to make a timely application will result in expiration of access authorization. Access authorization for which a timely application for renewal has been made may be continued beyond the expiration date pending final action on the application. An

  • application for renewal 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 §25.l?(c).

(2) An exception to the access authorization expiration date, the time for submission of renewal applications, and the paperwork required for renewal applications is provided for:

(i) Those individuals whose original access authorization date of issuance is more than five years old as of the effective 10

date of this final rule. For those individuals, an application for renewal must be submitted (within 180 days of the effective date of this final rule); and, (ii) Those individuals who have a current and active access authorization from another Federal agency, are subject to a reinvestigation program by that agency that is determined by NRC to meet NRC's requirements (the DOE Reinvestigation Program has been determined to meet NRC's requirements), and for which the e licensee or other person has notified NRC of the applicability of this exception at least 120 days prior to the original expiration date of the access authorization. For those individuals, the licensee or other person may submit to NRC, concurrent with its next submission to the other government agency (after the effective date of this rule), a completed 1100 rn1est for Access Authorization," containing the ne, to include Social Security Numper, date o

  • request, i.e., renewal, Reinvestigation S Agency Conducting Reinvestigation, signe~ -~

licensee contractor official as the supporting documentation for an NRC access authorization renewal application. Any NRC access authorization continued in response to a renewal application submitted pursuant to this paragraph will, thereafter, not expire until the date set by the other government agency for the next reinvestigation of the individual pursuant to the other agency's reinvestigation program provided that period is no longer than seven years from the date of the NRC renewal. At that time (and 11

at the time of each subsequent reinvestigation of the individual), the licensee or other person, may again submit, concurrent with its submission to the other government agency, a completed NRC Form 237, "Request for Access Authorization,"

containing the individuals full name, Social Security Number, date of birth, type of request, i.e., renewal, Reinvestigation Submittal Date, and Agency Conducting Reinvestigation, signed by a licensee or licensee contractor official as the supporting documentation for an NRC access authorization renewal application. Failure to file a renewal application concurrent with the submission of an individual's SF-86 to the other government agency pursuant to their reinvestigation requirements, even if less than five years has passed since the date of issuance or renewal of the NRC "Q" or "L" access authorization, will result in the expiration of the individual's NRC access authorization.

6. Section 25.23 is revised to read as follows:

§25.23 Notification of grant of access authorization.

(a) The determination to grant or renew access authorization will be furnished in writing to the licensee or organization that initiated the request. Upon receipt of the notification of original grant of access authorization, the licensee or organization shall obtain, as a condition for grant of access authorization and access to classified information, an executed "Classified Information Nondisclosure Agreement (SF-312) from 12

the affected individual. The individual shall also be given a security orientation briefing in accordance with §95.33 of this chapter. The signed SF-312 must be promptly forwarded to the NRC Division of Security. Records of access authorization grant and renewal notification must be maintained by the licensee or other organization for three years after the access authorization has been terminated by the NRC Division of Security. This information may also be furnished to other representatives of the

- Commission, to licensees, contractors, or other Federal agencies.

Notifications of access authorization will not be given in writing to the affected individual except:

(1) In those cases in which the determination was made as a result of a Personnel Security Hearing or by Personnel Security Review Examiners, or (2) When the individual also is the official designated by the licensee to whom written NRC notifications are forwarded.

7. Section §25.25 is revised to read as follows:

§25.25 Cancellation of requests for access authorization.

When a request for an individual's access authorization or renewal of access authorization is withdrawn or cancelled, the requestor shall notify the NRC Division of Security immediately by telephone so that the full field investigation, National Agency Check with Credit Investigation or other personnel security action may be discontinued. The requestor shall identify the full name and date of birth of the individual, the 13

date of request, and the type of access authorization ("Q" or "L") or access authorization renewal requested. The requester shall confirm each telephone notification promptly in writing.

8. In 25.27, paragraph (a) is revised to read as follows:

§25.27 Reopening of cases in which requests for access authorizations are cancelled.

(a) In conjunction with a new request for access e authorization (NRC Form 237) or renewal of access authorization for individuals whose cases were previously cancelled, new fingerprint cards (FD-257) in duplicate and a new Security Acknowledgment (NRC Form 176) (for cases where no final access authorization was previously issued} must be furnished to the NRC Division of Security along with the request.

9. In §25.31, a new paragraph ( d} is added to read as
  • follows:

§25.31 Extensions and transfers of access authorizations.

(d} The date of an extension or transfer of access authorization may not be used to determine when a request for renewal of access authorization is required. Access authorizatiQn renewal requests must be timely submitted, in accordance with §25.2l(c).

10. Appendix A to Part 25 is revised to read as follows:

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APPENDIX A to Part 25 - FEES FOR NRC ACCESS AUTHORIZATION Category Fee 1

Initial "L" Access Authorization $45 1

Reinstatement of "L" Access Authorization. $45 1

Extension or Transfer of "L" Access Authorization. $45 Renewal of "L" Access Authorization . . 1

$45 Initial "Q" Access Authorization . $2,600 Initial "Q" Access Authorization (expedited processing) . . . . . . . . . . * . . . . . . $3,000 2

Reinstatement of "Q" Access Authorization. $2,600 Reinstatement of "Q" Access Authorization (expedited 2

processing) . . . . . . . . . . . . . . . . $3, ooo Extension or Transfer of "Q" 2

Extension or Transfer of "Q (expedited processing) . $3,000 Renewal of "Q (Initial five year reinvestigation)

Renewal of "Q" (subsequent five year reinvestigations) 1 If the NRC determines, based on its review of available data, that a full field investigation is necessary, a fee of

$2,600 will be assessed prior to the conduct of the investigation.

2 Full fee will only be charged if investigation is required.

Dated at Rockville, MD, this ;7 111 day of 1992.

For the Commission.

15

Enclosure 2 REGULATORY ANALYSIS

1. Statement of Problem In 1989, Congressional Hearings were held before Congressman Synar that resulted from the 1988 GAO Report "NRC's Security
  • Clearance Program Can be Strengthened" that recommended that NRC establish a reinvestigation program for individuals with "L" access authorizations. Until that time, only personnel with "Q" access authorization were reinvestigated. On April 28, 1989, the EDO approved a reinvestigation program for all NRC employees, consultants, experts, and panel members with NRC "L" access authorization and on November 15, 1990 approved a reinvestigation program for NRC contractors.

This established the policy that all NRC employees, consultants, contractors, experts, and panel members, whether they had "Q" or "L" access authorization, would be reinvestigated every five years to assure their continued eligibility for access authorization. There currently is no reinvestigation program for licensee personnel with the same access .authorizations.

2. Objective

/

The objective of this regulatory initiative is to establish a reinvestigation program for licensee personnel with NRC "Q" or "L" access authorization.

3. Alternatives There is no reasonable alternative to the revision of this regulation that would achieve the desired result.
4. Consequences There are approximately 31 affected entities licensed by the NRC. Each licensee person who needs access to NRC National Security Information or Restricted Data must have an access authorization granted to them by the NRC. Each of these individuals who is still in a position requiring such access five years after the original access authorization was granted will be required to submit documentation to NRC as the basis for a reinvestigation, provide information establishing that another government agency had conducted or was conducting a personnel security investigation of the individual, which met NRC standards, within the last five years; or for individuals covered by the DOE reinvestigation program, comply with requirements similar to those contained

in 10 CFR 11.15(c) (2) and (3) for Material Access Authorizations.

5. Decision Rationale The only available method of imposing this requirement on selected licensees is to revise 10 CFR Part 25. Other avenues would lack the requisite formality and legality necessary to require all affected NRC licensees to comply with the requirement for five year personnel security reinvestigations.
6. Implementation The Division of Security intends to publish the final rule amending 10 CFR Part 25 by February 15, 1992.

Approved for Publication The Commission delegated to the EDO (10 CFR 1.31(c)) the authority to develop and promulgate rules as defined in the Administrative Procedure Act (5 u.s.c. 551 (4)) subject to the limitations in NRC Manual Directive 9.17, Organization and Functions, Office of the Executive Director for Operations, paragraphs 0213, 038, 039, and 0310.

The enclosed rule, entitled, "NRC Licensee Reinvestigation Program," will amend Part 25 to require a reinvestigation program for licensee personnel with "Q" and "L" access authorizations.

This final rule does not constitute a significant question of policy, nor does it amend regulations contained in 10 CFR Parts 7, a 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.

~ bate , Executive r Operations

DOCKET NUMBER PR ri 5_

PROPOSED RULE _______ d_  ? "\

l5bF~3" 11

~ (D Babcock & Wilcox Naval Nuclear Fuel Division a McDermott company P. 0 . Box 785 LOC.:1':[1 [D Lynchburg, Virginia 24505-0785 USNP.C (804) 522-6000 October 1, 1991 91-153

  • 91 OCT -7 P 1 :04 Secretary , F *,

U. s. Nuclear Regulatory Commission \* L' r*

ATTN: Docketing and Service Branch Washington, DC 20555 Gentlemen:

Babcock & Wilcox, Naval Nuclear Fuel Division, submits the following comments in regard to the proposed amendments to 10 CFR

25. Although the official comment period expired on September 13, 1991, Babcock & Wilcox sought and was granted an extension and assurance of due cons i deration for comments submitted after the expiration date, by way of a telephone conference with the NRC Division of Security on September 20, 1991.

The Nuclear Regulatory Commi ssion proposes to amend its regulations contained in 10 CFR Part 25 to require a reinvestigat i on program for NRC licensee personnel with "Q" and "L" access authorizations.

These proposed amendments are deemed necessary by the NRC to achieve a higher level of assurance that licensee personnel with access to Restricted Data or National Security Information remain eligible for such access.

The proposed amendments allow for recognition of reinvestigations by other agencies, principally the Department of Energy.

- Babcock & Wilcox concurs with the NRC proposal to recogn i ze reinvestigations conducted by the Department of Energy. However, B&W recommends that the proposed rule be revised to relieve licensees from the requirement to i mplement the unduly burdensome documentation requirements associated with the current proposed amendment. The proposed documentation requirements constitute a duplication of existing documentation required by the NRC in the Part 11 reinvestigation program, as well as a duplication of the DOE required submittals as stated in the proposed amendment.

As i llustrated in the attached flow chart, implementation of the proposed documentation wi ll require B&W and other licensees to submit, in tripl icate, indi vidual security information packages for each person granted access authorization for special nuclear materi al, National Security Information, or Restricted Data.

U.S. NUCLEAR REGULATORY COMMISSION DOCKETING & SERVICE SECTION OFFICE OF THE SECRETARY OF THE COMMISSION Document Statistics Po51:J"*'l*'* f"'. !r ___

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LO

    • 1er; _ I _

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Add'! Cop11:h ~,-:pfOGu~ _,3___ ,,___ _

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U. S. N. R. C. October 1, 1991 Additionally, the current and proposed requirements would entail not just the submission of copies of this data to each agency, but the submission of original forms, 11 * *

  • SF-86 that is dated and bears an original signature, together with a request form (NRC Form 237) signed by a licensee or other official .. " [10 CFR 25.21(c) (2) (ii)].

Two of these three completely redundant information packages must be submitted to NRC to satisfy both the current Part 11 requirements and the proposed requirements for Part 25. This submittal must be made concurrent with submittal of the same original forms to DOE.

As stated in the proposed amendment to Part 25, the NRC is allowing for the recognition of reinvestigations conducted by the DOE. The redundant documentation is required by NRC only as supporting documentation. B&W believes that the requested documentation significantly exceeds that which should be required to serve this purpose and constitutes an undue burden on affected licensees. This is especially evident in view of the fact that such data contained in DOE files is accessible by the NRC.

The paperwork burden and associated costs can be significantly reduced if the NRC would allow licensees who are subject to equivalent DOE access authorization programs to submit to the NRC pertinent information on each individual in an abbreviated format concurrent with submittal of Form SF-86 to the DOE. The information submitted for each individual would include:

-Name

-Date of Birth

-Social Security Number

-Clearance Type and Number

-Grant Date

-Reinvestigation Submittal Date NRC could use this information to access and audit the individual's security record currently on file with DOE. This approach would provide the NRC with the information required to fulfill the intent of the proposed amendment while not placing a greater than necessary burden on affected licensees.

The current Part 25 requirements allow this exact type of submission for initial requests for access authorization for these same personnel. Part 25 .17 (c) (2) requires only the submittal of NRC Form 176 as supporting documentation of the DOE investigation. B&W believes that this documentation should also be considered adequate supporting documentation for subsequent reinvestigations.

U. S. N. R. C. October 1, 1991 It is noteworthy that the proposed amendments will make the Part 25 reinvestigation requirements consistent with those in Part 11.

However, when Part 11 was implemented, DOE had no five-year reinvestigation requirement. Now that affected licensees are required to comply with the DOE reinvestigation criteria, including the submittal of the previously listed documentation, B&W thinks that the abbreviated documentation suggested should be sufficient to satisfy NRC needs.

For the reasons outlined in this letter, and since Parts 11 & 25 are both currently undergoing revision, B&W strongly recommends that these two regulations be considered jointly by all interested parties prior to publication of any final rule.

In summary, B&W requests that security clearances be conducted entirely under the current DOE system and that NRC verify the DOE security records based on information provided by B&W. IF the NRC and DOE are both primarily responsible for maintaining B&W security records, the company will continue to be unnecessarily burdened with the responsibility and cost of complying with three separate systems with no resulting benefit to any of the parties involved.

B&W contends that there is ample justification for the determinations requested herein. We would be pleased to furnish any additional information you may need and would welcome a meeting with NRC representatives for detailed discussions on this matter.

Sincerely,

/J~~~

R. w. Carson, Jr.

Manager, Licensing &

Training

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~ or ~~~l -*-* DOC HCO US NRC NUCLEAR REGULATORY COMMISSION 10 CFR Part 25 *91 ,J l 30 A10 :13 RIN 3150 - AD86 NRC Licensee Reinvestigation Program AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission proposes to amend its

- regulations to require a reinvestigation program for NRC licensee personnel with "Q" and "L" access authorizations and to amend the fee schedule to cover investigative costs. The proposed reinvestigation program is consistent with the Department of Energy's pro9ram for its contractors and is consistent with NRC's policy of reinvestigating its own employees, consultants, contractors, experts and panel members. This amendment is necessary to achieve a higher level of assurance that licensee personnel with access to Restricted Data or National Security Information remain eligible for such access.

SEP 1 3 1091.

DATE: Comment period expires Comments received after this date will be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date.

1

ADDRESSES: Mail written comments to: Secretary, U. s.

Nuclear Regulatory Commission, Washington, DC 20555, ATTENTION:

Docketing and *service Branch.

Deliver comments to: 11555 Rockville Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m. Federal workdays.

Copies of the regulatory analysis and comments received may be examined at: Room LL6, 2120 L Street, NW. (Lower Level),

Washington, DC.

- FOR FURTHER INFORMATION CONTACT: Duane G. Kidd, Division of Security, Office of Administration, U. s. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-4127.

SUPPLEMENTARY INFORMATION: The NRC currently requires a reinvestigation every five years for its employees, consultants, contractors, experts, and panel members with "Q" or "L" access authorization but does not require a reinvestigation for licensee personnel with the same level of access authorizations. A recommendation was made in the 1988 GAO Report "NRC's Security Clearance Program Can be Strengthened" and amplified in 1989 hearings before Congressman Synar that NRC have a reinvestigation program for its L" cleared employees, consultants, contractors, experts, and panel members to assure their continued reliability, integrity, and trustworthiness. The rationale behind that recommendation applies equally to licensee personnel with "L" and "Q" access authorizations. The proposed rule will establish the 2

requirement that licensee personnel would be subject to a reinvestigation every five years similar in scope to that required for NRC employees and contractors and consistent with that required by the Department of Energy for its contractors who have access to Restricted Data or National Security Information.

The proposed rule would also amend Appendix A "Fees for NRC Access Authorization" to recover the costs of the reinvestigations required by these changes. The proposed amendments, however, allow for recognition of other agency's,

- principally the Department of Energy's, reinvestigations. In cases where NRC can verify an appropriate reinvestigation by another Federal agency, there would be no charge to the licensee or other organization. Where there was no other r~investigation, or the reinvestigation did not meet NRC requirements, the fee would be assessed. However, the fee would most often be nominal, as reflected in Appendix A.

Environmental Impact: Categorical Exclusion The NRC has determined that this proposed regulation is the type of action described as a categorical exclusion in 10 CFR 51.22(c) (1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.

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Paperwork Reduction Act statement

-This proposed rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1980 (44 u.s.c. 3501 et seq.). This rule has been submitted to the Office of Management and Budget for review and approval of the paperwork requirements.

Public reporting burden for this collection of information is estimated to average .6 hours6.944444e-5 days <br />0.00167 hours <br />9.920635e-6 weeks <br />2.283e-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 collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Information and Records Management Branch (MNBB-7714), U.S.

Nuclear Regulatory Commission, Washington, DC 20555; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-

  • - 3019, (3150-0046), Office of Management and Budget, Washington, DC 20503.

Regulatory Analysis The Commission has prepared a regulatory analysis on 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 4

Room, Room LL6, 2120 L Street, NW. (Lower Level), Washington, DC.

single copies of the analysis may be obtained from Duane G. Kidd, Division of Security, Office of Administration, U. s. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 492-4127.

Regulatory Flexibility Certification Based upon the information available at this stage of the rulemaking proceeding and in accordance with the Regulatory Flexibility Act, 5 u.s.c. 605(b), the Commission certifies that, if promulgated, this rule will not have a significant economic impact on a substantial number of small entities. This rulemaking only applie~ to those licensees and others who generate, receive, safeguard and store National Security Information or Restricted Data (as defined in 10 CFR Part 25).

Approximately 31 NRC licensee and other license related interests would be affected under the provisions of 10 CFR Part 25.

Because these licensees are not classified as small entities as defined by the NRC's size standards (December 9, 1985; 50 FR 50241), the Commission finds that this rule will not have a significant economic impact upon a substantial number of small entities.

5

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does apply to this rulemaking initiative because it falls within the criteria of 10 CFR Part 50.109(a) (1), but that a backfit analysis is not required because this rulemaking qualifies for exemption under 50.109(a) (4) (iii) that reads "That the regulatory action involves * * . redefining what level of protection to the

  • * . common defense and security should be regarded as adequate."

List of Subjects 10 CPR Part 25 Classified information, Criminal penalty, Investigations, Penalty, Reporting and recordkeeping requirements, Security measures.

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 is proposing to adopt the following amendments to 10 CFR Part 25.

PART 25 - ACCESS AUTHORIZATION FOR LICENSEE PERSONNEL

1. 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 6

U.S.C. 5841); E.O. 10865, as amended, 3 CFR 1959-1963 COMP.,

p.398 (50 U.S.C. 401, note); E.O. 12356, 47 FR 14874, April 6, 1982.

Appendix A also issued under 96 Stat. 1051 (31 u.s.c. 9701).

For the purposes of sec. 223, 68 Stat. 958, as amended, (42 u.s.c. 2273), §§ 25.13, 25.17(a), 25.33(b) and (c) are issued under sec. 161i, 68 stat. 949, as amended (42 u.s.c. 2201(i));

and§§ 25.13 and 25.33(b} are issued under sec. 1610, 68 Stat.

950, as amended (42 u.s.c. 2201(0)).

2. In §25.17, paragraph (e) is revised to read as follows:

S 25.17 Approval for processing applicants for access authorization.

(e) Applications for access authorization or access authorization renewal processing must be accompanied by a check or money order, payable to the United States Nuclear Regulatory Commission, representing the current cost for the processing of each "Q," "L," access authorization, or renewal request. Access authorization and access authorization renewal fees will be published each time the Office of Personnel Management notifies NRC of a change in the rates it charges NRC for the conduct of investigations. Any such changed access authorization or access authorization renewal fees will be applicable to each access authorization or access authorization renewal request received 7

upon or after the date of publication. Applications from individuals having current Federal access authorizations may be processed more expeditiously and at less cost, since the Commission may accept the certification of access authorization and investigative data from other Federal Government agencies that grant personnel access authorizations.

3. Section 25.19 is revised to read as follows:

S 25.19 Processing applications.

e Each application for access authorization or access authorization renewal, together with its accompanying fee, must be submitted to the NRC Division of Security. If necessary, the NRC Division of Security may obtain approval from the appropriate Commission office exercising 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 Security shall notify the submitter in writing and return the original application (security packet) and its accompanying fee.

4. In §25.21, paragraph (a) is revised and paragraph (c) is added to read as follows:

S 25.21 Determination of initial and continued eligibility for access authorization.

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(a) Following receipt by the NRC Division of Security of the reports of the personnel security investigations, the record will be reviewed to determine that granting an access authorization or renewal of access authorization will not endanger the common defense and security and is clearly consistent with the national interest. If such a determination is made, access authorization will be granted or renewed. Questions as to initial or continuing eligibility will be determined in accordance with Part 10 of Chapter I.

(c) (1) Except as provided in paragraph (c) (2) of this section; NRC "Q" and L" access authorizations expire five years from the date of issuance. If continued Q" or "L" access authorization is required, an application for renewal must be submitted at least 120 days prior to its expiration date.

Failure to make a timely application will result in expiration of access authorization. Access authorization for which a timely application for renewal has been made may be continued beyond the expiration date pending final action on the application. An application for renewal 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 §25.17(c).

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(2) An exception to the access authorization expiration date and the time for submission of renewal applications is provided for:

(a) Those individuals whose original access authorization date of issuance is more than five years old as of the effective date of this rule amendment. For those individuals an application for renewal must be submitted (within 180 days of the effective date of this rule); and,

  • (b) Those individuals who have a current and active access authorization from another federal agency, and are subject to a reinvestigation program by that agency that is determined by NRC to meet NRC's requirements (the DOE Reinvestigation Program has been.determined to meet.NRC's requirements), and for which the licensee or other person has notified NRC of their intention to use this exception at least 120 days prior to the original expiration date of the access authorization. For those individuals, the licensee or other person may submit to NRC, concurrent with its next submission to the other government agency after (the effective date of this rule) (provided that period is no longer than seven years from the date of original issuance or last renewal), a copy of the SF-86 that is dated and bears an original signature, together with a request form (NRC Form 237) signed by a licensee or other official as the supporting documentation for an NRC access authorization renewal application. Any NRC access authorization continued in response to a renewal application submitted pursuant to this 10

paragraph will, thereafter, not expire until the date set by the other government agency for the next reinvestigation of the individual pursuant to the other agency's reinvestigation program provided that period is no longer than seven years from the date of the NRC renewal. At that time (and at the time of each subsequent reinvestigation of the individual), the licensee or other person, may again submit, concurrent with its submission to the other government agency, a copy of the SF-86 that is dated and bears an original signature together with a request form {NRC Form 237) signed by a licensee or other contractor official as the supporting documentation for an NRC access authorization renewal application. Failure to file a renewal application concurrent with the submission of an individual's SF-86 to the other government agency pursuant to their reinvestigation requirements will result in the expiration of the individual's NRC access authorization.

5. Section §25.23 is revised to read as follows:

§25.23 Notification of grant of access authorization.

The determination to grant or renew access authorization will be furnished in writing to the licensee or other person that initiated the request. Upon receipt of the notification of original grant of access authorization, the licensee or other person shall obtain, as a condition for grant of access authorization and access to classified information, an executed 11

Classified Information Nondisclosure Agreement** (SF 312) from the affected individual. The individual shall also be given a sec~rity orientation briefing in accordance with §95.33 of this chapter. The signed SF 312 must be promptly forwarded to the NRC Division of Security. Records of access authorization grant and renewal notification must be maintained by the licensee or other organization for three years after the access authorization has been terminated by the NRC Division of Security. This information may also be furnished to other representatives of the Commission, to licensees, contractors, or other Federal agencies.

Notifications of access authorization will not be given in writing to the affected individual except:

(a) - In those cases in which the determination was made as a result of a Personnel Security Hearing or by Personnel Security Review Examiners, or (b) When the individual also is the official designated by the licensee to whom written NRC notifications are forwarded.

6. Section §25.25 is revised to read as follows:

§25.25 Cancellation of requests for access authorization.

When a request for an individual's access authorization or renewal of access authorization is withdrawn or cancelled, the requester shall notify the NRC Division of Security immediately by telephone so that the full field investigation, National Agency Check with Credit Investigation or other personnel security action may be discontinued. The requester shall 12

identify the full name and date of birth of the individual, the date of request, and the type of access authorization (Q' ' or

L) or access authorization renewal originally requested. The requester shall confirm each telephone notification promptly in writing.

7. In 25.27, paragraph (a) is revised to read as follows:

§25.27 Reopening of cases in which requests for access authorizations are cancelled.

(a) In conjunction with a new request for access authorization or renewal of access authorization for individuals whose cases were previously cancelled, new fingerprint cards in duplicate and a new Security Acknowledgment (for cases where no final access authorization was previously issued) must be furnished to the NRC Division of Security along with the request.

- §25.31 8.

follows:

In §25.31, a new paragraph (d) is added to read as Extensions and transfers of access authorizations.

(d) The date of an extension or transfer of access authorization may not be used to determine when a request for renewal of access authorization is required. Access authorization renewal requests must be timely submitted in accordance with §25.21(c).

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9. Appendix A to Part 25 is revised to read as follows:

APPENDIX A to Part 25 - FEES FOR NRC ACCESS AUTHORIZATION Category Fee 1

Initial "L" Access Authorization $45 Reinstatement of "L" Access Authorization 1 $45 1

Extension or Transfer of "L" Access Authorization $45 Renewal of "L" Access Authorization 1 $45 Initial "Q" Access Authorization . $2,600 Initial "Q" Access Authorization {expedited processing) * . . . . . . . . . . . . * * * $3 I 000 2

Reinstatement of "Q" Access Authorization $2,600 Reinstatement of "Q" Access Authorization {expedited processing) . . . . . . . . . . . . . . . .

Extension pr Transfer of "Q" 2

Extension or Transfer of "Q" {expedited processing) * $3,000 1

Renewal of "Q" (Initial five year reinvestigation) $1500 Renewal of "Q" {subsequent five year reinvestigations)

  • 1 $45 1 If the NRC determines, based on its review of available data, that a full field investigation is necessary, a fee of

$2,600 will be assessed prior to the conduct of the investigation.

2 Full fee will only be charged if investigation is required.

Dated at Rockville, MD, this &t,( th day of 7i: 1991.

For the Nuclear R e g a . ~ Commission or for Operations 14

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