[Federal Register Volume 75, Number 124 (Tuesday, June 29, 2010)]
[Notices]
[Pages 37479-37483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15730]
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NUCLEAR REGULATORY COMMISSION
[EA-10-073; Project No. 0769; NRC-2010-0207]
In the Matter of NuScale Power, Inc. and All Other Persons; Who
Seek or Obtain Access to Safeguards Information Described Herein; Order
Imposing Safeguards Information Protection Requirements for Access to
Safeguards Information (Effective Immediately)
I
NuScale Power, Inc. (NuScale) has submitted a letter of intent to
the U.S. Nuclear Regulatory Commission (NRC) for a design certification
application in 2012.
In June 2009, the Commission published a rulemaking in the Federal
Register (74 FR 28112) requiring applicants for a variety of licensing
activities, including nuclear power plant designers, to perform a
design-specific assessment of the effects of the impact of a large,
commercial aircraft and to incorporate design features and functional
capabilities into the nuclear power plant design to provide additional
inherent protection with reduced use of operator actions. A discussion
of the specific requirements for applicants for new nuclear power
reactors can be found in Section V of the Federal Register notice. To
assist designers in completing this assessment, the Commission has
decided to provide the detailed aircraft impact characteristics that
should be used as reasonable inputs for reactor vendors and architect/
engineers who have the need to know and who meet the NRC's requirements
for the disclosure of such information to use in the required aircraft
impact assessments.
The NRC derived these characteristics from agency analyses
performed on operating reactors to support, in part, the development of
a broadly effective set of mitigation strategies to combat fires and
explosions from a spectrum of hypothetical aircraft impacts. Although
these detailed characteristics were not selected as a basis for
designing new reactors, the staff is suggesting them as a starting
point for aircraft impact assessments. On July 10, 2009, the NRC issued
a draft regulatory guide (DG)-1176, ``Guidance for the Assessment of
Beyond-Design-Basis Aircraft Impacts.'' The agency did not receive any
comments on the document. The staff is currently working to finalize
the regulatory guide and intends to include these aircraft impact
characteristics in the safeguards information (SGI) version of its
final regulatory guide. In addition, the staff recognizes that no
national or international consensus has been reached on the selection
of appropriate characteristics for such analyses. Therefore, the
information should be considered preliminary and subject to authorized
stakeholder comment. The detailed aircraft characteristics that are the
subject of this Order are hereby designated as SGI,\1\ in accordance
with Section 147 of the Atomic Energy Act of 1954, as amended (AEA).
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\1\ SGI is a form of sensitive, unclassified, security-related
information that the Commission has the authority to designate and
protect under Section 147 of the AEA.
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On October 24, 2008, the NRC revised Title 10 of the Code of
Federal Regulations 10 CFR part 73, section 73.21, ``Protection of
Safeguards Information: Performance Requirements,'' to include
applicants in the list of entities required to protect SGI (73 FR
63546). The NRC is issuing this order to NuScale to impose requirements
for the protection of SGI in addition to the requirements set forth in
10 CFR 73.21. These additional requirements include nomination of a
reviewing official, restrictions on storage of SGI, and access to SGI
by certain individuals.
To implement this Order, NuScale must nominate an individual who
will review the results of the Federal Bureau of Investigation (FBI)
criminal history records check to make SGI access determinations. This
individual, referred to as the ``reviewing official,'' must be someone
who seeks access to SGI. Based on the results of the FBI criminal
history records check, the NRC staff will determine whether this
individual may have access to SGI. If the NRC determines that the
individual may not be granted access to SGI, the enclosed order
prohibits that individual from obtaining access to any SGI. Once the
NRC approves a reviewing official, that reviewing official, and only
that reviewing official, can make SGI access determinations for other
individuals who have been identified by NuScale as having a need to
know SGI, and who have been fingerprinted, have had a criminal history
records check and a background check, in accordance with this order.
The reviewing official can only make SGI access determinations for
other individuals, but cannot approve other individuals to act as
reviewing officials. Only the NRC can approve a reviewing official.
Therefore, if NuScale wishes to have a new or additional reviewing
official, the NRC must approve that individual before he or she can act
in that capacity.
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. To provide
assurance that NuScale is continuing to implement appropriate measures
to ensure a consistent level of protection to prohibit unauthorized
disclosure of SGI, and to comply with the fingerprinting, criminal
history records check, and background check requirements for access to
SGI, NuScale shall implement the requirements for the protection of SGI
as set forth in 10 CFR 73.21, 10 CFR 73.22, and this Order.
Certain categories of individuals are relieved by rule from the
fingerprinting requirements under 10 CFR 73.59, ``Relief from
Fingerprinting, Identification and Criminal History Records Checks and
Other Elements of Background Checks for Designated Categories of
Individuals.'' Those individuals include Federal, State, and
[[Page 37480]]
local law enforcement personnel; Agreement State inspectors who conduct
security inspections on behalf of the NRC; members of Congress; certain
employees of members of Congress or congressional committees who have
undergone fingerprinting for a prior U.S. Government criminal history
check; and representatives of the International Atomic Energy Agency or
certain foreign government organizations. In addition, individuals who
have had a favorably-decided U.S. Government criminal history check
within the last 5 years, or individuals who have active Federal
security clearances (provided in either case that they make available
the appropriate documentation), have already been subjected to
fingerprinting and criminal history checks and, thus, have satisfied
the fingerprinting requirement.
In addition, pursuant to 10 CFR 2.202, ``Orders,'' I find that in
light of the 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 147, 149, 161b, 161i, 161o, 182,
and 186 of the AEA, and the Commission's regulations in 10 CFR 2.202
and 10 CFR Part 73, ``Physical Protection of Plants and Materials,'' it
is hereby ordered, effective immediately, that NuScale and all other
persons who seek or obtain access to safeguards information as
described herein shall comply with the requirements set forth in 10 CFR
73.21, 10 CFR 73.22, and this order.
A. 1. No person may have access to any SGI if the NRC, when making
an SGI access determination for a nominated reviewing official, has
determined, based on fingerprinting and an FBI identification and
criminal history records check, that the person nominated may not have
access to SGI.
2. NuScale shall store SGI designated by this Order only in the
facility or facilities specifically approved in writing by the NRC for
storage of SGI designated by this Order. NuScale may request, in
writing, NRC approval of additional facilities for the storage of the
SGI designated by this Order that the NRC will consider on a case-by-
case basis.
3. NuScale may provide SGI designated by this Order to individuals
(such as foreign nationals, U.S. citizens living in foreign countries,
or individuals under the age of 18) for whom fingerprinting and an FBI
criminal history records check is not reasonably expected to yield
sufficient criminal history information to form the basis of an
informed decision on granting access to SGI, provided that the
individual satisfies the requirements of this Order, and that NuScale
has implemented measures, in addition to those set forth in this Order,
to ensure that the individual is suitable for access to the SGI
designated by this Order. Such additional measures must include, but
are not limited to, equivalent criminal history records checks
conducted by a local, State, or foreign governmental agency, and/or
enhanced background checks including employment and credit history. The
NRC must review these additional measures and approve them in writing.
B. No person may provide SGI to any other person except in
accordance with Section III.A. above. Before providing SGI to any
person, a copy of this Order shall be provided to that person.
C. NuScale shall comply with the following requirements:
1. NuScale shall, within 20 days of the date of this Order, submit
the fingerprints of one individual whom (a) NuScale nominates as the
``reviewing official'' for determining access to SGI by other
individuals and (b) has an established need to know the information.
The NRC will determine whether this individual (or any subsequent
reviewing official) may have access to SGI and, therefore, will be
permitted to serve as NuScale's reviewing official.\2\ NuScale may, at
the same time or later, submit the fingerprints of other individuals to
whom NuScale seeks to grant access to SGI. Fingerprints shall be
submitted and reviewed in accordance with the procedures described in
the attachment to this Order.
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\2\ The NRC's determination of this individual's access to SGI
in accordance with the process described in Enclosure 3 to the
transmittal letter of this order is an administrative determination
that is outside the scope of this order.
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2. NuScale shall, in writing, within 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 NuScale's justification for seeking
relief from, or variation of, any specific requirement.
NuScale shall submit responses to C.1. and C.2 above to the
Director, Office of New Reactors, U.S. Nuclear Regulatory Commission,
Washington, DC 20555. In addition, NuScale shall mark its responses as
``Security-Related Information--Withhold Under 10 CFR 2.390.''
Except for the requirements for fingerprinting, the Director,
Office of New Reactors, may, in writing, relax or rescind any of the
above conditions upon demonstration of good cause by NuScale.
IV
In accordance with 10 CFR 2.202, NuScale must, and any other person
adversely affected by this Order may, submit an answer to this Order
and may request a hearing with regard to this Order, within 20 days of
the date of this Order. Where good cause is shown, the NRC will
consider extending the time to request a hearing. A request for
extension of time in which to submit an answer or request a hearing
must be made in writing to the Director, Office of New Reactors, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, and include a
statement of good cause for the extension. The answer may consent to
this Order. Unless the answer consents to this Order, the answer shall,
in writing and under oath or affirmation, specifically set forth the
matters of fact and law by which NuScale or other entities adversely
affected rely, and the reasons as to why the NRC should not have issued
this Order. Any answer or request for a hearing shall be submitted to
the Secretary, Office of the Secretary, U.S. Nuclear Regulatory
Commission, ATTN: Rulemakings and Adjudications Staff, Washington, DC
20555. Copies shall also be sent to the Director, Office of New
Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555, to
the Assistant General Counsel for Materials Litigation and Enforcement
at the same address, and to NuScale, if the answer or hearing request
is by an entity other than NuScale. Because of possible delays in
delivery of mail to U.S. Government offices, the agency asks that
answers and requests for hearing be transmitted to the Secretary of the
Commission, either by means of facsimile transmission to (301) 415-1101
or via e-mail to [email protected], and also to the Office of the
General Counsel either through facsimile transmission to (301) 415-3725
or via e-mail to [email protected]. If an entity other than NuScale
requests a hearing, that entity shall set forth, with particularity,
the manner in which this Order adversely affects its interest and shall
address the criteria set forth in 10 CFR 2.309, ``Hearing Requests,
Petitions to Intervene, Requirements for Standing, and Contentions.''
If NuScale, or a person whose interest is adversely affected,
requests a hearing, the Commission will issue an order
[[Page 37481]]
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), NuScale may, in addition to
demanding 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 above in
Section III shall be final 20 days from the date of this Order without
further order or proceedings.
If the agency approves an extension of time for requesting a
hearing, the provisions, as specified above 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 at Rockville, Maryland, this 2nd day of June 2010.
For the Nuclear Regulatory Commission.
Michael R. Johnson,
Director, Office of New Reactors.
Guidance for Evaluation of Access to Safeguards Information With the
Inclusion of Criminal History Records (Fingerprint) Checks
When a licensee or other person \3\ submits fingerprints to the
Nuclear Regulatory Commission (NRC) pursuant to an NRC Order, it will
receive a criminal history summary of information, provided in federal
records, since the individual's eighteenth birthday. Individuals retain
the right to correct and complete information and to initiate challenge
procedures described in Enclosure 3. The licensee will receive the
information from the criminal history records check for those
individuals requiring access to Safeguards Information (SGI), and the
reviewing official will evaluate that information using the guidance
below. Furthermore, the requirements of all Orders, which apply to the
information and material to which access is being granted, must be met.
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\3\ As used herein, ``licensee'' means any licensee or other
person who is required to conduct fingerprinting.
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The licensee's reviewing official is required to evaluate all
pertinent and available information in making a determination of access
to SGI, including the criminal history information pertaining to the
individual as required by the NRC Order. The criminal history records
check is used when determining whether an individual has a record of
criminal activity that indicates that the individual should not have
access to SGI. Each determination of access to SGI, which includes a
review of criminal history information, must be documented to include
the basis for the decision that is made.
(i) If negative information is discovered that was not provided by
the individual, or which is different in any material respect from the
information provided by the individual, this information should be
considered, and decisions made based on these findings, must be
documented.
(ii) Any record containing a pattern of behaviors which indicates
that the behaviors could be expected to recur or continue, or recent
behaviors which cast questions on whether an individual should have
access to SGI, should be carefully evaluated prior to any authorization
of access to SGI.
It is necessary for a licensee to resubmit fingerprints only under
two conditions:
(1) The FBI has determined that the fingerprints cannot be
classified due to poor quality in the mechanics of taking the initial
impressions; or
(2) the initial submission has been lost.
If the FBI advises that six sets of fingerprints are unclassifiable
based on conditions other than poor quality, the licensee may submit a
request to the NRC for alternatives. When those search results are
received from the FBI, no further search is necessary.
Process To Challenge NRC Denials or Revocations of Access to Safeguards
Information
1. Policy
This policy establishes a process for individuals whom the Nuclear
Regulatory Commission (NRC) licensees or other person \4\ nominate as
reviewing officials to challenge and appeal NRC denials or revocations
of access to Safeguards Information (SGI). Any individual nominated as
a licensee reviewing official whom the NRC has determined may not have
access to SGI shall, to the extent provided below, be afforded an
opportunity to challenge and appeal the NRC's determination. This
policy shall not be construed to require the disclosure of SGI to any
person, nor shall it be construed to create a liberty or property
interest of any kind in the access of any individual to SGI.
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\4\ As used herein, ``licensee'' means any licensee or other
person who is required to conduct fingerprinting.
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2. Applicability
This policy applies solely to those employees of licensees who are
nominated as a reviewing official, and who are thus considered, by the
NRC, for initial or continued access to SGI in that position.
3. SGI Access Determination Criteria
Determinations for granting a nominated reviewing official access
to SGI will be made by the NRC staff. Access to SGI shall be denied or
revoked whenever it is determined that an individual does not meet the
applicable standards. Any doubt about an individual's eligibility for
initial or continued access to SGI shall be resolved in favor of the
national security and access will be denied or revoked.
4. Procedures To Challenge the Contents of Records Obtained From the
FBI
a. Prior to a determination by the NRC Facilities Security Branch
Chief that an individual nominated as a reviewing official is denied or
revoked access to SGI, the individual shall:
(i) Be provided the contents of records obtained from the FBI for
the purpose of assuring correct and complete information. 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 will forward the challenge
to the agency that submitted the data and request 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 necessary
changes in accordance with the information supplied by that agency.
(ii) Be afforded ten (10) days to initiate an action challenging
the results
[[Page 37482]]
of an FBI criminal history records check (described in (i), above)
after the record is made available for the individual's review. If such
a challenge is initiated, the NRC Facilities Security Branch Chief may
make a determination based upon the criminal history record only upon
receipt of the FBI's ultimate confirmation or correction of the record.
5. Procedures To Provide Additional Information
a. Prior to a determination by the NRC Facilities Security Branch
Chief that an individual nominated as a reviewing official is denied or
revoked access to SGI, the individual shall:
(i) Be afforded an opportunity to submit information relevant to
the individual's trustworthiness and reliability. The NRC Facilities
Security Branch Chief shall, in writing, notify the individual of this
opportunity, and any deadlines for submitting this information. The NRC
Facilities Security Branch Chief may make a determination of access to
SGI only upon receipt of the additional information submitted by the
individual, or, if no such information is submitted, when the deadline
to submit such information has passed.
6. Procedures To Notify an Individual of the NRC Facilities Security
Branch Chief Determination To Deny or Revoke Access to SGI
a. Upon a determination by the NRC Facilities Security Branch Chief
that an individual nominated as a reviewing official is denied or
revoked access to SGI, the individual shall be provided a written
explanation of the basis for this determination.
7. Procedures To Appeal an NRC Determination To Deny or Revoke Access
to SGI
a. Upon a determination by the NRC Facilities Security Branch Chief
that an individual nominated as a reviewing official is denied or
revoked access to SGI, the individual shall be afforded an opportunity
to appeal this determination to the Director, Division of Facilities
and Security. The determination must be appealed within twenty (20)
days of receipt of the written notice of the determination by the
Facilities Security Branch Chief, and may either be in writing or in
person. Any appeal made in person shall take place at the NRC's
headquarters, and shall be at the individual's own expense. The
determination by the Director, Division of Facilities and Security,
shall be rendered within sixty (60) days after receipt of the appeal.
8. Procedures To Notify an Individual of the Determination by the
Director, Division of Facilities and Security, Upon an Appeal
a. A determination by the Director, Division of Facilities and
Security, shall be provided to the individual in writing, and include
an explanation of the basis for this determination. A determination by
the Director, Division of Facilities and Security, to affirm the
Facilities Branch Chief's determination to deny or revoke an
individual's access to SGI is final and not subject to further
administrative appeals.
General Requirements
Licensees and other persons who are required to conduct
fingerprinting shall comply with the requirements of this enclosure.\5\
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\5\ As used herein, A``licensee'' means any licensee or other
person who is required to conduct fingerprinting in accordance with
these requirements.
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A. The licensee shall notify the U.S. Nuclear Regulatory Commission
(NRC) of any desired change in reviewing officials, in compliance with
C.1 of the subject Order. The NRC will determine whether the individual
nominated as the new reviewing official may have access to safeguards
information (SGI) based on a previously-obtained or new criminal
history check and, therefore, will be permitted to serve as the
licensee's reviewing official.
Procedures for Processing Fingerprint Checks
For the purpose of complying with this order, licensees shall,
using an appropriate method listed in Title 10 of the Code of Federal
Regulations (10 CFR) part 73, section 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 writing the
Office of Information Services, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, by calling (301) 415-5877, or by 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 due to 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 Federal Bureau of Investigations (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) 415-7404.]
Combined payment for multiple applications is acceptable. The
application fee (currently $36) is the sum of the user fee charged by
the FBI for each fingerprint card or other fingerprint record submitted
by the NRC on behalf of a licensee, and an NRC processing fee, which
covers administrative costs associated with NRC handling of licensee
fingerprint submissions. The Commission will directly notify licensees
who are subject to this regulation of any fee changes.
The Commission will forward to the submitting licensee all data
received from the FBI as a result of the licensee's application(s) for
criminal history records checks, including the FBI fingerprint record.
Right To Correct and Complete Information
Prior to any final adverse determination, the licensee shall make
available to the individual the contents of any criminal records
obtained from the FBI for the purpose of assuring correct and complete
information. Written confirmation by the individual of receipt of this
notification must be maintained by the licensee for a period of one (1)
year from the date of the notification. If, after reviewing the record,
an individual believes that it is incorrect or incomplete in any
respect and wishes to change, correct, or update the alleged
deficiency, or to explain any matter in the record, the individual may
initiate challenge procedures. These procedures include either direct
[[Page 37483]]
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 upon the criminal history record only upon
receipt of the FBI's ultimate confirmation or correction of the record.
Upon a final adverse determination on access to SGI, the licensee shall
provide the individual its documented basis for denial. Access to SGI
shall not be granted to an individual during the review process.
Protection of Information
1. Each licensee who obtains a criminal history record on an
individual pursuant to this Order shall establish and maintain a system
of files and procedures for protecting the record and the personal
information from unauthorized disclosure.
2. The licensee may not disclose the record or personal information
collected and maintained to persons other than the subject individual,
his/her representative, or to those who have a need to access the
information in performing assigned duties in the process of determining
access to Safeguards Information. No individual authorized to have
access to the information may re-disseminate the information to any
other individual who does not have a need-to-know.
3. The personal information obtained on an individual from a
criminal history record check may be transferred to another licensee if
the licensee holding the criminal history record check receives the
individual's written request to re-disseminate the information
contained in his/her file, and the current licensee verifies
information such as the individual's name, date of birth, social
security number, sex, and other applicable physical characteristics for
identification purposes.
4. The licensee shall make criminal history records, obtained under
this section, available for examination by an authorized representative
of the NRC to determine compliance with the regulations and laws.
5. The licensee shall retain all fingerprint and criminal history
records received from the FBI, or a copy if the individual's file has
been transferred, for three (3) years after termination of employment
or determination of access to SGI (whether access was approved or
denied). After the required three (3) year period, these documents
shall be destroyed by a method that will prevent reconstruction of the
information in whole or in part.
[FR Doc. 2010-15730 Filed 6-28-10; 8:45 am]
BILLING CODE 7590-01-P