[Federal Register Volume 72, Number 222 (Monday, November 19, 2007)]
[Notices]
[Pages 65094-65098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22572]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 72-25; EA-06-298]


In the Matter of Foster Wheeler Environmental Corporation, Idaho 
Spent Fuel Facility; Independent Spent Fuel Storage Installation 
Modifying License (Effective Immediately)

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Issuance of Order Imposing Fingerprinting and Criminal History 
Check Requirements for Access to Safeguards Information.

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FOR FURTHER INFORMATION CONTACT: L. Raynard Wharton, Senior Project 
Manager, Licensing and Inspection Directorate, Division of Spent Fuel 
Storage and Transportation, Office of Nuclear Material Safety and 
Safeguards (NMSS), U.S. Nuclear Regulatory Commission (NRC), 
Washington, DC 20555-0001. Telephone: (301) 492-3316; fax number: (301) 
492-3348; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

Introduction

    The attached Immediately Effective Order was issued to the licensee 
on February 23, 2007. However, due to an administrative error, the 
Order was not published in the Federal Register at the time the Order 
was issued. Accordingly, this Order is now being published in the 
Federal Register to ensure that adequate notice has been given of an 
opportunity to request a hearing. The effective date of the Immediately 
Effective Order remains February 23, 2007, and its publication in the 
Federal Register does not impose any new or different requirements on 
the licensee. Requests for hearing from anyone other than the licensee 
must be filed within 20 days of the date of publication of this Notice 
in accordance with Section IV of the Immediately Effective Order.
    Pursuant to 10 CFR 2.202, NRC (or the Commission) is providing 
notice, in the matter of Foster Wheeler Environmental Corporation's 
(FWENC) Idaho Spent Fuel Facility Independent Spent Fuel Storage 
Installation (ISFSI) Order Modifying License (Effective Immediately).

II. Further Information

    The NRC has issued a specific license, to the FWENC, authorizing 
storage of spent fuel in an ISFSI in accordance with the Atomic Energy 
Act (AEA) of 1954, as amended, and Title 10 of the Code of Federal 
Regulations (10 CFR) Part 72. On August 8, 2005, the Energy Policy Act 
of 2005 (EPAct) was enacted. Section 652 of the EPAct amended Section 
149 of the AEA to require fingerprinting and a Federal Bureau of 
Investigation (FBI) identification and criminal history records check 
of any person who is to be permitted to have access to Safeguards 
Information (SGI). \1\ The NRC's implementation of this requirement 
cannot await the completion of the SGI rulemaking, which is underway, 
because the EPAct fingerprinting and criminal history check 
requirements for access to SGI were immediately effective upon 
enactment of the EPAct. Although the EPAct permits the Commission by 
rule to except certain categories of individuals from the 
fingerprinting requirement, which the Commission has done [see 10 CFR 
73.59, 71 FR 33989 (June 13, 2006)], it is unlikely that licensee 
employees are excepted from the fingerprinting requirement by the 
``fingerprinting relief'' rule. Individuals relieved from 
fingerprinting and criminal history checks under the relief rule 
include Federal, State, and local officials and law enforcement 
personnel; Agreement State inspectors who conduct security inspections 
on behalf of the NRC; members of Congress and certain employees of 
members of Congress or Congressional Committees; and representatives of 
the International Atomic Energy Agency (IAEA) or certain foreign 
government organizations. In addition, individuals who have a 
favorably-decided U.S. Government criminal history check within the 
last five (5) years, and individuals who have active federal security 
clearances (provided in either case that they make available the 
appropriate documentation), have satisfied the EPAct fingerprinting 
requirement and need not be fingerprinted again. Therefore, in 
accordance with Section 149 of the AEA, as amended by the EPAct, the 
Commission is imposing additional requirements for access to

[[Page 65095]]

SGI, as set forth by this Order, so that affected licensees can obtain 
and grant access to SGI. \2\ This Order also imposes requirements for 
access to SGI by any person, \3\ from any person, whether or not a 
Licensee, Applicant, or Certificate Holder of the Commission or 
Agreement States.
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    \1\ Safeguards Information is a form of sensitive, unclassified, 
security-related information that the Commission has the authority 
to designate and protect under Section 147 of the AEA.
    \2\ The storage and handling requirements for certain SGI have 
been modified from the existing 10 CFR Part 73 SGI requirements that 
require a higher level of protection; such SGI is designated as 
Safeguards Information-Modified Handling (SGI-M). However, the 
information subject to the SGI-M handling and protection 
requirements is SGI, and licensees and other persons who seek or 
obtain access to such SGI are subject to this Order.
    \3\ Person means (1) any individual, corporation, partnership, 
firm, association, trust, estate, public or private institution, 
group, government agency other than the Commission or the Department 
of Energy (DOE), except that the DOE shall be considered a person 
with respect to those facilities of the DOE specified in Section 202 
of the Energy Reorganization Act of 1974 (88 Stat. 1244), any State 
or any political subdivision of, or any political entity within a 
State, any foreign government or nation or any political subdivision 
of any such government or nation, or other entity; and (2) any legal 
successor, representative, agent, or agency of the foregoing.
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II

    The Commission has broad statutory authority to protect and 
prohibit the unauthorized disclosure of SGI. Section 147 of the AEA 
grants the Commission explicit authority to issue such Orders as 
necessary to prohibit the unauthorized disclosure of SGI. Furthermore, 
Section 652 of the EPAct amended Section 149 of the AEA to require 
fingerprinting and an FBI identification and a criminal history records 
check of each individual who seeks access to SGI. In addition, no 
person may have access to SGI unless the person satisfies all other 
applicable requirements (e.g., 10 CFR 73.21).
    To provide assurance that appropriate measures are being 
implemented to comply with the fingerprinting and criminal history 
check requirements for access to SGI, FWENC shall implement the 
requirements of this Order. In addition, pursuant to 10 CFR 2.202, I 
find that in consideration of the common defense and security matters 
identified above, which warrant the issuance of this Order, the public 
health, safety and interest require that this Order be effective 
immediately.

III

    Accordingly, pursuant to Sections 103, 104, 147, 149, 161b, 161i, 
161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and 
the Commission's regulations in 10 CFR 2.202, Parts 72 and 73, it is 
hereby ordered, effective immediately, that your specific license is 
modified as follows:
    1. No person may have access to SGI unless that person has a need-
to-know the SGI, has been fingerprinted and has a favorably-decided FBI 
identification and criminal history records check, and satisfies all 
other applicable requirements for access to SGI. Fingerprinting and the 
FBI identification and criminal history records check are not required, 
however, for any person who is relieved from that requirement by 10 CFR 
73.59 [71 FR 33989 (June 13, 2006)], or who has a favorably-decided 
U.S. Government criminal history records check within the last five (5) 
years, or who has an active federal security clearance, provided in the 
latter two cases, that the appropriate documentation is made available 
to FWENC's NRC-approved reviewing official.
    No person may have access to any SGI, if the NRC has determined, 
based on fingerprinting and an FBI identification and criminal history 
records check, that the person may not have access to SGI.
    No person may provide SGI to any other person except in accordance 
with Condition III.A. above. Prior to providing SGI to any person, a 
copy of this Order shall be provided to that person.
    C. 1. FWENC shall, within twenty (20) days of the date of this 
Order, establish and maintain a fingerprinting program that meets the 
requirements of the Attachment to this Order.
    FWENC shall, within twenty (20) days of the date of this Order, 
submit the fingerprints of one (1) individual who currently has access 
to SGI in accordance with the previously-issued NRC Orders, whom 
continues to need access to SGI, and whom FWENC nominates as the 
``reviewing official'' for determining access to SGI by other 
individuals. The NRC will determine whether this individual (or any 
subsequent reviewing official) may have access to SGI and, therefore, 
will be permitted to serve as FWENC's reviewing official.\4\ FWENC may, 
at the same time or later, submit the fingerprints of other individuals 
for whom access to SGI is sought. Fingerprints shall be submitted and 
reviewed in accordance with the procedures described in the Attachment 
of this Order.
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    \4\ The NRC's determination of this individual's access to SGI, 
in accordance with the process described in Enclosure 3 to the 
transmittal letter of this Order, is an administrative determination 
that is outside the scope of this Order.
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    FWENC may allow any individual who currently has access to SGI in 
accordance with the previously-issued NRC Orders, to continue to have 
access to previously-designated SGI, without being fingerprinted, 
pending a decision by the NRC-approved reviewing official (based on 
fingerprinting, an FBI criminal history records check, and a 
trustworthy and reliability determination) that the individual may 
continue to have access to SGI. FWENC shall make determinations on 
continued access to SGI by May 25, 2007, in part on the results of the 
fingerprinting and criminal history check, for those individuals who 
were previously granted access to SGI before the issuance of this 
Order.
    4. FWENC shall, in writing, within twenty (20) days of the date of 
this Order, notify the Commission: (1) If it is unable to comply with 
any of the requirements described in the Order, including the 
Attachment; or (2) if compliance with any of the requirements is 
unnecessary in its specific circumstances. The notification shall 
provide FWENC's justification for seeking relief from, or variation of, 
any specific requirement.
    FWENC responses to C.1., C.2., C.3., and C.4. above shall be 
submitted to the Director, Office of Nuclear Material Safety and 
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001. In addition, responses shall be marked as ``Security-Related 
Information--Withhold under 10 CFR 2.390.''
    The Director, Office of Nuclear Material Safety and Safeguards, may 
in writing, relax or rescind any of the above conditions upon 
demonstration of good cause by FWENC.

IV

    In accordance with 10 CFR 2.202, FWENC must, and any other person 
adversely affected by this Order may, submit an answer to this Order 
within 20 days of the date of the Order. In addition, FWENC and any 
other person adversely affected by this Order may request a hearing on 
this Order within 20 days of the date of the Order. Where good cause is 
shown, consideration will be given to extending the time to answer or 
request a hearing. A request for extension of time must be made, in 
writing, to the Director, Office of Nuclear Material Safety and 
Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, and include a statement of good cause for the extension.
    The answer may consent to this Order. If the answer includes a 
request for a hearing, it shall, under oath or

[[Page 65096]]

affirmation, specifically set forth the matters of fact and law on 
which FWENC relies and the reasons as to why the Order should not have 
been issued. If a person other than FWENC requests a hearing, that 
person shall set forth with particularity the manner in which his 
interest is adversely affected by this Order and shall address the 
criteria set forth in 10 CFR 2.309(d).
    A request for a hearing must be filed in accordance with the NRC E-
Filing rule, which became effective on October 15, 2007. The NRC E-
Filing Final Rule was issued on August 28, 2007, (72 FR 49139) and 
codified in pertinent part at 10 CFR Part 2, Subpart B. The E-Filing 
process requires participants to submit and serve documents over the 
internet or, in some cases, to mail copies on electronic optical 
storage media. Participants may not submit paper copies of their 
filings unless they seek a waiver in accordance with the procedures 
described below.
    To comply with the procedural requirements associated with E-
Filing, at least five (5) days prior to the filing deadline the 
requestor must contact the Office of the Secretary by e-mail at 
[email protected], or by calling (301) 415-1677, to request (1) a 
digital ID certificate, which allows the participant (or its counsel or 
representative) to digitally sign documents and access the E-Submittal 
server for any NRC proceeding in which it is participating; and/or (2) 
creation of an electronic docket for the proceeding (even in instances 
when the requestor (or its counsel or representative) already holds an 
NRC-issued digital ID certificate). Each requestor will need to 
download the Workplace Forms ViewerTM to access the 
Electronic Information Exchange (EIE), a component of the E-Filing 
system. The Workplace Forms ViewerTM is free and is 
available at http://www.nrc.gov/site-help/e-submittals/install-viewer.html. Information about applying for a digital ID certificate is 
also available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html.
    Once a requestor has obtained a digital ID certificate, had a 
docket created, and downloaded the EIE viewer, it can then submit a 
request for a hearing through EIE. Submissions should be in Portable 
Document Format (PDF) in accordance with NRC guidance available on the 
NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. 
A filing is considered complete at the time the filer submits its 
document through EIE. To be timely, electronic filings must be 
submitted to the EIE system no later than 11:59 p.m. Eastern Time on 
the due date. Upon receipt of a transmission, the E-Filing system time-
stamps the document and sends the submitter an e-mail notice confirming 
receipt of the document. The EIE system also distributes an e-mail 
notice that provides access to the document to the NRC Office of the 
General Counsel and any others who have advised the Office of the 
Secretary that they wish to participate in the proceeding, so that the 
filer need not serve the document on those participants separately. 
Therefore, any others who wish to participate in the proceeding (or 
their counsel or representative) must apply for and receive a digital 
ID certificate before a hearing request is filed so that they may 
obtain access to the document via the E-Filing system.
    A person filing electronically may seek assistance through the 
``Contact Us'' link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, 
which is available between 8:30 a.m. and 4:15 p.m., Eastern Time, 
Monday through Friday. The help line number is (800) 397-4209 or 
locally, (301) 415-4737.
    Participants who believe that they have good cause for not 
submitting documents electronically must file a motion, in accordance 
with 10 CFR 2.302(g), with their initial paper filing requesting 
authorization to continue to submit documents in paper format. Such 
filings must be submitted by (1) first class mail addressed to the 
Office of the Secretary of the Commission, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Rulemaking and 
Adjudications Staff; or (2) courier, express mail, or expedited 
delivery service to the Office of the Secretary, Sixteenth Floor, One 
White Flint North, 11555 Rockville, Pike, Rockville, Maryland 20852, 
Attention: Rulemaking and Adjudications Staff. Participants filing a 
document in this manner are responsible for serving the document on all 
other participants. Filing is considered complete by first-class mail 
as of the time of deposit in the mail, or by courier, express mail, or 
expedited delivery service upon depositing the document with the 
provider of the service.
    Documents submitted in adjudicatory proceedings will appear in 
NRC's electronic hearing docket which is available to the public at 
http://ehd.nrc.gov/EHD_Proceeding/home.asp, unless excluded pursuant 
to an order of the Commission, an Atomic Safety and Licensing Board, or 
a Presiding Officer. Participants are requested not to include personal 
privacy information, such as social security numbers, home addresses, 
or home phone numbers in their filings. With respect to copyrighted 
works, except for limited excerpts that serve the purpose of the 
adjudicatory filings and would constitute a Fair Use application, 
Participants are requested not to include copyrighted materials in 
their works.
    If a hearing is requested by FWENC or a person whose interest is 
adversely affected, the Commission will issue an Order designating the 
time and place of any hearing. If a hearing is held, the issue to be 
considered at such hearing shall be whether this Order should be 
sustained.
    Pursuant to 10 CFR 2.202(c)(2)(i), FWENC may, in addition to 
requesting a hearing, at the time the answer is filed or sooner, move 
the presiding officer to set aside the immediate effectiveness of the 
Order on the grounds that the Order, including the need for immediate 
effectiveness, is not based on adequate evidence, but on mere 
suspicion, unfounded allegations, or error.
    In the absence of any request for hearing, or written approval of 
an extension of time in which to request a hearing, the provisions as 
specified in Section III shall be final twenty (20) days from the date 
of this Order without further Order or proceedings. If an extension of 
time for requesting a hearing has been approved, the provisions as 
specified in Section III shall be final when the extension expires, if 
a hearing request has not been received. An answer or a request for 
hearing shall not stay the immediate effectiveness of this order.

    Dated this 7th day of November 2007.

    For the Nuclear Regulatory Commission.
Micheal F. Weber,
Director, Office of Nuclear Material Safety and Safeguards.

Requirements for Fingerprinting and Criminal History Checks of 
Individuals When Licensee's Reviewing Official Is Determining Access to 
Safeguards Information

General Requirements

    Licensees shall comply with the requirements of this attachment.
    A. 1. Each licensee subject to the provisions of this attachment 
shall fingerprint each individual who is seeking or permitted access to 
Safeguards Information (SGI). The licensee shall review and use the 
information received from the Federal Bureau of Investigation (FBI) and 
ensure that the provisions contained in the subject Order and this 
attachment are satisfied.

[[Page 65097]]

    2. The licensee shall notify each affected individual that the 
fingerprints will be used to secure a review of his/her criminal 
history record and inform the individual of the procedures for revising 
the record or including an explanation in the record, as specified in 
the ``Right to Correct and Complete Information'' section of this 
attachment.
    3. Fingerprints need not be taken if an employed individual (e.g., 
a licensee employee, contractor, manufacturer, or supplier) is relieved 
from the fingerprinting requirement by 10 CFR 73.59, has a favorably 
decided U.S. Government criminal history check within the last five (5) 
years, or has an active federal security clearance. Written 
confirmation from the Agency/employer that granted the federal security 
clearance or reviewed the criminal history check must be provided. The 
licensee must retain this documentation for a period of three (3) years 
from the date the individual no longer requires access to SGI 
associated with the licensee's activities.
    4. All fingerprints obtained by the licensee pursuant to this Order 
must be submitted to the Commission for transmission to the FBI.
    5. The licensee shall review the information received from the FBI 
and consider it, in conjunction with the trustworthy and reliability 
requirements of the previously issued Nuclear Regulatory Commission 
(NRC or Commission) Orders, in making a determination of whether to 
grant access to SGI to individuals who have a need-to-know the SGI.
    6. The licensee shall use any information obtained as part of a 
criminal history records check solely for the purpose of determining an 
individual's suitability for access to SGI.
    7. The licensee shall document the basis for its determination 
whether to grant access to SGI.
    B. The licensee shall notify the NRC of any desired change in 
reviewing officials. The NRC will determine whether the individual 
nominated as the new reviewing official may have access to SGI based on 
a previously-obtained or new criminal history check and, therefore, 
will be permitted to serve as the licensee's reviewing official.

Prohibitions

    A licensee shall not base a final determination to deny an 
individual access to SGI solely on the basis of information received 
from the FBI involving: (1) An arrest more than one (1) year old for 
which there is no information of the disposition of the case; or (2) an 
arrest that resulted in dismissal of the charge, or an acquittal.
    A licensee shall not use information received from a criminal 
history check obtained pursuant to this Order in a manner that would 
infringe upon the rights of any individual, under the First Amendment 
to the Constitution of the United States, nor shall the licensee use 
the information in any way that would discriminate among individuals on 
the basis of race, religion, national origin, sex, or age.

Procedures for Processing Fingerprint Checks

    For the purpose of complying with this Order, licensees shall, 
using an appropriate method listed in 10 CFR 73.4, submit to the NRC's 
Division of Facilities and Security, Mail Stop T-6E46, one completed, 
legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where 
practicable, other fingerprint records, for each individual seeking 
access to SGI, to the Director of the Division of Facilities and 
Security, marked for the attention of the Division's Criminal History 
Check Section. Copies of these forms may be obtained by: (1) Writing 
the Office of Information Services, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; (2) calling (301) 415-5877; or (3) e-mail to 
[email protected]. Practicable alternative formats are set forth in 10 CFR 
73.4. The licensee shall establish procedures to ensure that the 
quality of the fingerprints taken results in minimizing the rejection 
rate of fingerprint cards from illegible or incomplete cards.
    The NRC will review submitted fingerprint cards for completeness. 
Any Form FD-258 fingerprint record containing omissions or evident 
errors will be returned to the licensee for corrections. The fee for 
processing fingerprint checks includes one re-submission, if the 
initial submission is returned by the FBI because the fingerprint 
impressions cannot be classified. The one free re-submission must have 
the FBI Transaction Control Number reflected on the re-submission. If 
additional submissions are necessary, they will be treated as initial 
submittals and will require a second payment of the processing fee.
    Fees for processing fingerprint checks are due upon application. 
Licensees shall submit payment with the application for processing 
fingerprints by corporate check, certified check, cashier's check, 
money order, or electronic payment, made payable to ``U.S. NRC.'' [For 
guidance on making electronic payments, contact the Facilities Security 
Branch, Division of Facilities and Security, at (301) 415-7739]. 
Combined payment for multiple applications is acceptable. The 
application fee (currently $27) is the sum of the user fee charged by 
the FBI for each fingerprint card or other fingerprint record submitted 
by the NRC on behalf of a licensee, and an NRC processing fee, which 
covers administrative costs associated with NRC handling of licensee 
fingerprint submissions. The Commission will directly notify licensees 
that are subject to this regulation of any fee changes.
    The Commission will forward to the submitting licensee all data 
received from the FBI as a result of the licensee's application(s) for 
criminal history checks, including the FBI fingerprint record.

Right to Correct and Complete Information

    Prior to any final adverse determination, the licensee shall make 
available, to the individual the contents of any criminal records, 
obtained from the FBI for the purpose of assuring correct and complete 
information. Written confirmation by the individual of receipt of this 
notification must be maintained by the licensee for a period of one (1) 
year from the date of the notification. If, after reviewing the record, 
an individual believes that it is incorrect or incomplete in any 
respect and wishes to change, correct, or update the alleged 
deficiency, or to explain any matter in the record, the individual may 
initiate challenge procedures. These procedures include either direct 
application, by the individual challenging the record to the agency 
(i.e., law enforcement agency) that contributed the questioned 
information, or direct challenge as to the accuracy or completeness of 
any entry on the criminal history record, to the Assistant Director, 
Federal Bureau of Investigation Identification Division, Washington, DC 
20537-9700 (as set forth in 28 CFR 16.30 through 16.34). In the latter 
case, the FBI forwards the challenge to the agency that submitted the 
data and requests that agency to verify or correct the challenged 
entry. Upon receipt of an official communication directly from the 
agency that contributed the original information, the FBI 
Identification Division makes any changes necessary in accordance with 
the information supplied by that agency. The licensee must provide at 
least ten (10) days for an individual to initiate an action challenging 
the results of an FBI criminal history records check after the record 
is made available for his/her review. The licensee may make a final SGI 
access determination based on the criminal history record only upon 
receipt of the FBI's ultimate

[[Page 65098]]

confirmation or correction of the record. A final adverse determination 
on access to SGI, the licensee shall provide the individual its 
documented basis for denial. Access to SGI shall not be granted to an 
individual during the review process.

Protection of Information

    1. Each licensee that obtains a criminal history record on an 
individual pursuant to this Order shall establish and maintain a system 
of files and procedures for protecting the record and the personal 
information from unauthorized disclosure.
    2. The licensee may not disclose the record or personal information 
collected and maintained to persons other than the subject individual, 
his/her representative, or to those who have a need to access the 
information in performing assigned duties in the process of determining 
access to SGI. No individual authorized to have access to the 
information may re-disseminate the information to any other individual 
who does not have a need-to-know.
    3. The personal information obtained on an individual from a 
criminal history records check may be transferred to another licensee 
if the gaining licensee receives the individual's written request to 
re-disseminate the information contained in his/her file, and the 
gaining licensee verifies information such as the individual's name, 
date of birth, social security number, sex, and other applicable 
physical characteristics for identification purposes.
    4. The licensee shall make criminal history records, obtained under 
this section, available for examination by an authorized NRC 
representative, to determine compliance with the regulations and laws.
    5. The licensee shall retain all fingerprint and criminal history 
records received from the FBI, or a copy, if the individual's file has 
been transferred, for three (3) years after termination of employment 
or determination of access to SGI. After the required three (3) year 
period, these documents shall be destroyed by a method that will 
prevent reconstruction of the information in whole or in part.

 [FR Doc. E7-22572 Filed 11-16-07; 8:45 am]
BILLING CODE 7590-01-P