[Federal Register Volume 84, Number 198 (Friday, October 11, 2019)]
[Notices]
[Pages 54928-54932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22277]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 52-025; NRC-2008-0252]
Southern Nuclear Operating Company, Inc.; Vogtle Electric
Generating Plant, Unit 3; Background Check Process for Participation in
ITAAC Proceeding
AGENCY: Nuclear Regulatory Commission.
ACTION: Opportunity to initiate background check for access to
safeguards information; public meeting.
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SUMMARY: In approximately 4 to 7 months, the U.S. Nuclear Regulatory
Commission (NRC) will publish in the Federal Register a notice of
intended operation, which will allow the public to submit requests for
hearing regarding the licensee's conformance with the acceptance
criteria in the combined license (COL) for Vogtle Electric Generating
Plant (VEGP) Unit 3. These acceptance criteria are part of the
inspections, tests, analyses, and acceptance criteria (ITAAC) included
in the COL. If a member of the public believes access to Safeguards
Information (SGI) is necessary to file a hearing request, then members
of the public must satisfy several standards, including a determination
by the NRC that they are ``trustworthy and reliable.'' Because the
background checks used to support trustworthiness and reliability
determinations take some time to complete, the NRC is providing this
``pre-clearance'' process, by which members of the public may initiate
background checks to be completed by an investigative agency well
before the hearing process begins. Also, the NRC will hold a public
information meeting on the ITAAC hearing process.
DATES: This pre-clearance process is available until publication in the
Federal Register of the notice of intended operation for VEGP Unit 3.
When the notice of intended operation is published, it will govern
access to SGI for the proceeding on VEGP Unit 3.
A public information meeting on the ITAAC hearing process will be
held on October 30, 2019, at 6:00 p.m. at Augusta Technical College,
Waynesboro, Georgia. The NRC will provide background information on the
ITAAC hearing process and answer questions on it.
ADDRESSES: Please refer to Docket ID NRC-2008-0252 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly-available information related to this document
using any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2008-0252. Address
questions about NRC docket IDs in Regulations.gov to Anne Frost;
telephone: 301-287-9232; email: [email protected]. For technical
questions, contact the individual listed in the FOR FURTHER INFORMATION
CONTACT section of this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's Public
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or
by email to [email protected]. Refer to Section II of this document
for instructions on how to submit the request for a background check.
FOR FURTHER INFORMATION CONTACT: Chandu Patel, Office of Nuclear
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone: (301) 415-3025, email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
The NRC hereby gives notice that members of the public who believe
they may need access to SGI to file a hearing request in the upcoming
ITAAC proceeding for VEGP Unit 3 may initiate background checks for
access to SGI before the proceeding begins. This notice describes how
the required background check forms may be obtained and how the
required forms and fee must be submitted. Requests to initiate
background checks under this notice may be made until publication in
the Federal Register of the notice of intended operation for VEGP Unit
3. When the notice of intended operation is published, it will govern
access to SGI for the proceeding on VEGP Unit 3.
A. Requirements for Access to SGI
Safeguards Information is a special category of sensitive
unclassified information defined in section 73.2 of title 10 of the
Code of Federal Regulations (10 CFR) and protected from unauthorized
disclosure under Section 147 of the Atomic Energy Act of 1954, as
amended (AEA). Although SGI is unclassified information, it is handled
and protected more like Classified National Security Information than
like other sensitive unclassified information (e.g., privacy and
proprietary information). Requirements for access to SGI and
requirements for SGI handling, storage, and processing are in 10 CFR
part 73.
To obtain access to SGI in an adjudicatory context, persons must
(1) demonstrate a ``need to know'' for the SGI, (2) be deemed
``trustworthy and reliable,'' and (3) demonstrate a likelihood of
establishing standing. As relevant to adjudications, ``need to know''
is defined in 10 CFR 73.2 as a determination by the originator of the
SGI that the SGI is necessary to enable the proposed recipient to
proffer and/or adjudicate a specific contention in that proceeding, and
the proposed recipient of the specific SGI possesses demonstrable
knowledge, skill, training, or education to effectively utilize the
specific SGI in the proceeding. ``Trustworthiness and reliability'' is
defined in 10 CFR 73.2 as the characteristics of an individual
considered dependable in judgment, character, and performance, such
that disclosure of SGI to that individual does not constitute an
unreasonable risk to the public health and safety or common defense and
security. A determination of trustworthiness and reliability for this
purpose is based upon a background check. The standing requirements are
in 10 CFR 2.309.
[[Page 54929]]
B. Information on ITAAC Closure Process and Associated Hearing
Opportunity
Southern Nuclear Operating Company, Inc., was issued a COL for VEGP
Unit 3 on February 10, 2012. Appendix C of the COL includes the ITAAC
for VEGP Unit 3. The ITAAC establish the means to verify whether the
facility has been constructed and will be operated in conformance with
the license, the AEA, and NRC rules and regulations. Section 185b of
the AEA requires the Commission to ensure that the prescribed
inspections, tests, and analyses are performed and to find, prior to
operation of the facility, that the prescribed acceptance criteria are
met. This AEA requirement is also set forth in 10 CFR 52.103(g), which
expressly provides that operation of the facility may not begin unless
and until the NRC finds that the acceptance criteria for all ITAAC are
met. Once the 10 CFR 52.103(g) finding is made, the licensee may
proceed to the operational phase, which begins with initial fuel load.
The NRC's finding on whether the acceptance criteria are met will
be based on the licensee's submission of ITAAC notifications required
by 10 CFR 52.99(c) and on the results of NRC inspections. Supporting
documents pertaining to ITAAC closure for VEGP Unit 3 are available
electronically at https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html. These supporting documents include an ITAAC status report
(https://www.nrc.gov/reactors/new-reactors/new-licensing-files/vog3-icnsr.pdf), which provides links to (1) the licensee's ITAAC
notifications submitted under 10 CFR 52.99(c); (2) NRC construction
inspection reports; (3) Verification Evaluation Forms, which document
the NRC staff's review of ITAAC closure notifications submitted under
10 CFR 52.99(c)(1) and ITAAC post-closure notifications submitted under
10 CFR 52.99(c)(2); and (4) uncompleted ITAAC Notification Checklists,
which document the NRC staff's review of uncompleted ITAAC
notifications submitted under 10 CFR 52.99(c)(3).\1\ In addition,
vendor inspection reports for new reactors, some of which relate to
VEGP Unit 3, are available at https://www.nrc.gov/reactors/new-reactors/oversight/quality-assurance/vendor-insp/insp-reports.html. The
NRC staff determinations made in items (3) and (4) are interim
determinations that do not become final unless and until the NRC makes
the 10 CFR 52.103(g) finding at the end of construction that all
acceptance criteria are met. The NRC staff will periodically update
these sources of information to reflect the submission of additional
licensee ITAAC notifications and future NRC inspection reports and
review documents.
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\1\ The NRC staff is not required to review the licensee's
uncompleted ITAAC notifications but may do so if the licensee
provides them far enough in advance so that staff review of these
notifications contribute to the ITAAC closure process. The staff's
review of an uncompleted ITAAC notification focuses on the ITAAC
completion methodology described in the notification.
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In addition, to provide additional background information to
members of the public, https://www.nrc.gov/reactors/new-reactors/col-holder/vog3.html includes links to other supporting documents, such as
the COL (which includes the ITAAC); the updated final safety analysis
report (UFSAR) for the facility; licensee reports on departures from
the UFSAR; NRC-issued licensing actions for the facility; the NRC's
final safety evaluation report for the COL application review;
information on the AP1000 design certification, which the facility
references; and information on processes related to ITAAC. Finally, to
search for documents in ADAMS using the VEGP Unit 3 docket number 52-
025, one should enter the term ``05200025'' in the ``Docket Number''
field when using the web-based search (advanced search) engine in
ADAMS.
As required by Section 189a.(1)(B)(i) of the AEA and 10 CFR
52.103(a), the NRC must publish in the Federal Register a notice of
intended operation at least 180 days before scheduled initial fuel
load. This notice shall provide 60 days for any person whose interest
may be affected by operation of the plant to request that the
Commission hold a hearing on whether the facility as constructed
complies, or on completion will comply, with the acceptance criteria in
the COL. For a hearing request in an ITAAC proceeding to be granted,
the petitioner must show standing as required by 10 CFR 2.309 and must
submit a contention meeting the standards of 10 CFR 2.309(f)(1)(i)
through (v) and (vii).\2\ In accordance with Section 189a.(1)(B)(ii) of
the AEA, the contention standards include the requirement that the
petitioner show, prima facie, that one or more of the acceptance
criteria in the COL have not been, or will not be, met and that the
specific operational consequences of nonconformance would be contrary
to providing reasonable assurance of adequate protection of the public
health and safety. Section 189a.(1)(B)(v) of the AEA requires the NRC,
to the maximum possible extent, to render a decision on the issues
raised by the hearing request within 180 days of the notice of intended
operation or by scheduled initial fuel load, whichever is later.
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\2\ The requirements of 10 CFR 2.309(f)(1)(vi) do not apply to
ITAAC proceedings.
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The Commission published detailed generic procedures for the ITAAC
hearing process in ``Final Procedures for Conducting Hearings on
Conformance with the Acceptance Criteria in Combined Licenses'' (ITAAC
Hearing Procedures) (81 FR 43266; July 1, 2016). The Commission intends
to use these generic procedures (with appropriate modifications) in
case-specific orders that will govern ITAAC proceedings. The ITAAC
Hearing Procedures differ from 10 CFR part 2 in a number of ways,
primarily because of the need to meet the statutory goal for timely
completing the hearing. To meet this goal, the ITAAC hearing process
will be conducted on a much shorter schedule than is used for other NRC
hearings. Therefore, the NRC encourages interested members of the
public to study the ITAAC Hearing Procedures and commence their hearing
preparations well before publication of the notice of intended
operation for VEGP Unit 3.
The notice of intended operation must be published at least 180
days prior to scheduled fuel load, but the NRC announced its intention
in the ITAAC Hearing Procedures to publish the notice of intended
operation between 210 and 285 days before scheduled fuel load.\3\ Based
on current projections, the NRC anticipates publishing the notice of
intended operation for VEGP Unit 3 in approximately 4 to 7 months. This
anticipated publication window is based on the licensee's schedule for
constructing the facility and submitting ITAAC notifications required
by 10 CFR 52.99(c). The notice of intended operation may be published
outside this window if the licensee's schedule changes.
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\3\ The NRC intends to publish the notice of intended operation
210 days before scheduled fuel load if the licensee submits its
uncompleted ITAAC notifications 225 days before scheduled fuel load
as required by 10 CFR 52.99(c)(2). However, if the licensee submits
its uncompleted ITAAC notifications earlier than required and meets
certain other prerequisites, the NRC intends to publish the notice
of intended operation at a correspondingly earlier time, but not
prior to 285 days before scheduled fuel load.
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C. Access to SGI in ITAAC Hearings
Given the range of matters covered by the ITAAC, the NRC believes
that petitioners may deem it necessary to obtain access to SGI for the
purpose of submitting an admissible contention. Therefore, as discussed
in the ITAAC
[[Page 54930]]
Hearing Procedures, the notice of intended operation will set forth
procedures providing such petitioners the opportunity to demonstrate
they meet the requirements for access to SGI in the ITAAC hearing
context. These requirements include a demonstration of ``need to
know,'' a determination of ``trustworthiness and reliability,'' and a
demonstration of likelihood to establish standing. If access is
granted, non-disclosure agreements/affidavits will need to be executed
before access is provided. Also, handling, storage, and processing of
SGI must satisfy the requirements of 10 CFR part 73.
The background check used to support trustworthiness and
reliability determinations can take some time, and delay could occur if
persons seeking access to SGI are not already cleared for access and do
not seek clearance until the notice of intended operation is
published.\4\ To avoid delays in an already-abbreviated hearing
schedule, the NRC is providing this pre-clearance process, by which
members of the public may initiate background checks well before the
hearing process begins. The other requirements for access to SGI (i.e.,
need to know and likelihood of standing) would be addressed in a
request for access to SGI submitted after the notice of intended
operation is published. Access to SGI will only be provided if all
requirements are satisfied.
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\4\ Our most recent information indicates that the average time
to perform a background check that supports the NRC's
trustworthiness and reliability determinations for access to SGI is
87 days. This average time is subject to change and should not be
relied upon. The time needed for any particular background
investigation may be more or less than the average time because of
the subject's personal history or the investigating agency's work
load. Also, some additional time beyond that taken by the
investigating agency will be needed for the NRC's Office of
Administration to make a decision based on the information it has
received.
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There is no guarantee that early initiation of the background check
will be of practical use to a petitioner. For example, the petitioner
might not satisfy the other requirements for access to SGI.
Consequently, it is the petitioner's choice whether to pursue the pre-
clearance process. The costs for initiating the background check are
not refundable, even if the background check is of no practical use to
a petitioner (e.g., an adverse determination is made on the background
check, or the petitioner fails to satisfy other requirements for access
such as need to know). Nevertheless, while use of the pre-clearance
process is voluntary, the ITAAC Hearing Procedures (81 FR 43282) state:
[T]he NRC will not delay its actions in completing the hearing
or making the 10 CFR 52.103(g) finding because of delays from
background checks for persons seeking access to SGI. In other words,
members of the public will have to take the proceeding as they find
it once they ultimately obtain access to SGI for contention
formulation. The pre-clearance process is designed to prevent the
SGI background-check process from becoming a barrier to timely
public participation in the hearing process. As stated in Attachment
1 to the SUNSI-SGI Access Procedures (p. 11), ``given the strict
timelines for submission of and rulings on the admissibility of
contentions (including security-related contentions) . . . potential
parties should not expect additional flexibility in those
established time periods if they decide not to exercise the pre-
clearance option.''
II. Pre-Clearance Process
The pre-clearance process in this notice is based on the pre-
clearance process in the ``Procedures to Allow Potential Intervenors to
Gain Access to Relevant Records that Contain Sensitive Unclassified
Non-Safeguards Information or Safeguards Information,'' dated February
29, 2008 (ADAMS Accession No. ML080380626), as modified and
supplemented by provisions in the ITAAC Hearing Procedures and the
final rule, ``Protection of Safeguards Information'' (73 FR 63546;
October 24, 2008).
A. Any potential party \5\ who believes access to SGI may be
necessary to formulate contentions for the upcoming ITAAC proceeding
for VEGP Unit 3 may request initiation of a pre-clearance background
check. Requestors should submit these requests within 20 days of
publication of this pre-clearance notice. Requests may be initiated
after 20 days, but a delay in submitting the request will lead to a
corresponding delay in NRC action on the request. Requests for a pre-
clearance background check may be made until the notice of intended
operation is published for VEGP Unit 3. Once published, the notice of
intended operation will govern access to SGI.
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\5\ A ``potential party'' is any person who intends to
participate as a party by demonstrating standing and filing an
admissible contention in accordance with the instructions in the
notice of intended operation.
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B. To request initiation of the background check to be conducted by
an investigative agency, the requestor must submit a background check
request letter, two forms, and the fee for the background check, as
discussed in Section II.C of this notice.
(1) To initiate the background check, Form FD-258 (fingerprint
card) and Form SF-85, ``Questionnaire for Non-Sensitive Positions,''
must be completed and submitted. The requestor should contact the NRC's
Office of Administration at (301) 415-3710 to request a package
containing the Form FD-258 and to obtain access to Form SF-85. To
obtain access to Form SF-85, each individual for whom a background
check is being requested will be asked to provide the individual's full
legal name, social security number, date and place of birth, telephone
number, and email address.\6\ Instructions for completing these two
forms will be provided directly to the individual for whom the
background check is being requested. Form FD-258 and the fee must be
delivered to the following address:
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\6\ After providing this information, the individual usually
should be able to obtain access to the online Form SF-85 within two
business days.
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U.S. Nuclear Regulatory Commission, Office of Administration,
Personnel Security Branch, ATTN: Pre-Clearance SGI Background Check
Materials for ITAAC Proceeding, Mail Stop TWFN 07-D04M, 11555 Rockville
Pike, Rockville, MD 20852.
(2) The requestor must submit a background check request letter to
the Office of the Secretary, U.S. Nuclear Regulatory Commission, and
provide a copy to the Deputy General Counsel for Hearings and
Administration, Office of the General Counsel. Email submission is
preferred. The email addresses for the Office of the Secretary and the
Office of the General Counsel are [email protected] and
[email protected], respectively. The U.S. mail address
for both offices is: U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001. The expedited delivery or courier mail address for both
offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike,
Rockville, Maryland 20852.
C. Forms, Fee, and Background Check Request Letter
(1) Required Forms: The requestor must submit the following forms:
(a) A completed Form FD-258 (fingerprint card), signed in original
ink, and submitted in accordance with 10 CFR 73.57(d) for each
individual for whom a background check is being requested. Copies of
Form FD-258 will be provided in the background check request package
supplied by the Office of Administration for each individual for whom a
background check is being requested. The fingerprint card will be used
to satisfy the requirements of 10 CFR part 2, 10 CFR 73.22(b)(1), and
AEA Section 149, which mandates that all persons with access to SGI
must be fingerprinted for a Federal Bureau of
[[Page 54931]]
Investigation identification and criminal history records check;
(b) A completed Form SF-85, ``Questionnaire for Non-Sensitive
Positions'' for each individual for whom a background check is being
requested. The completed Form SF-85 will be used to conduct the
background check required for access to SGI, as required by 10 CFR part
2, subpart C, and 10 CFR 73.22(b)(2), to determine the individual's
trustworthiness and reliability. For security reasons, Form SF-85 is
completed electronically through a secure website that is owned and
operated by the investigative agency.
(2) A check or money order payable in the amount of $340.00 to the
U.S. Nuclear Regulatory Commission for each individual for whom a
background check is being requested.
(3) Background Check Request Letter: The background check request
letter must:
(a) Request initiation of a background check for the purpose of
determining trustworthiness and reliability for access to SGI that may
be relevant to the upcoming ITAAC proceeding for VEGP Unit 3.
(b) Provide the name and address of the potential party and a
description of the potential party's particularized interest that could
be harmed by a finding by the NRC that the acceptance criteria in the
COL are met.\7\
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\7\ The NRC staff will review this statement of interest for the
limited purpose of determining whether to initiate the requested
background check. The NRC staff will review the statement of
interest only to confirm that there is some description of why the
potential party's interest could be affected. A positive
determination by the NRC staff is not a conclusion that the
potential party has met the requirements for standing under 10 CFR
2.309.
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(c) Identify each individual for whom access to SGI will be
requested, including the identity of any expert, consultant, or
assistant who will aid the petitioner in evaluating the SGI.
(d) If the requestor or any individual for whom access to SGI will
be requested believes they belong to one or more of the categories of
individuals that are exempt from the criminal history records check and
background check requirements in 10 CFR 73.59, the requestor should
provide a statement identifying which exemption the person is invoking
and explaining the person's basis for believing that the exemption
applies. While processing the request, the Office of Administration
will make a final determination on whether the claimed exemption
applies. Alternatively, the requestor may contact the Office of
Administration for an evaluation of the person's exemption status prior
to submission of the background check request. Persons who are exempt
from the background check are not required to submit the forms and fee
described in Sections II.C.(1) and II.C.(2) of this notice; however,
all other requirements for access to SGI, including need to know, still
apply.
(e) State that the completed forms and fee described in Sections
II.C.(1) and II.C.(2) of this notice have been submitted for each
individual for whom access to SGI will be requested (except for those
exempted by 10 CFR 73.59).
(4) To avoid delays in processing background check requests, the
requestor should review all submitted materials for completeness and
accuracy (including legibility) before submitting them to the NRC. The
NRC will return incomplete packages to the sender without processing.
D. Results of Background Check
(1) If the background check results in a favorable trustworthiness
and reliability determination, the NRC staff will so notify the
requestor. In its discretion, the responsible NRC staff may proceed at
that time with an inspection of the requestor's information protection
system to confirm it is sufficient to protect SGI from inadvertent
release or disclosure.\8\ Once the notice of intended operation is
published, an associated request for access to specified SGI will still
need to address the other requirements for access, in accordance with
the requirements in the notice of intended operation.
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\8\ The requestor may wish to defer this inspection to a later
time, but if the NRC staff decides that an inspection is necessary
to confirm that the requestor's information protection system is
sufficient, this inspection must be conducted before SGI is provided
to the requestor. However, the requestor may opt to view SGI at an
approved SGI storage location rather than establish its own SGI
protection program to meet SGI protection requirements.
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(2) If the background check results in an adverse trustworthiness
and reliability determination, the NRC staff will so notify the
requestor with a brief statement of the reasons for denial.
(a) Before the Office of Administration makes a final adverse
determination, the individual against whom the adverse determination
has been made must be provided an opportunity to correct or explain
information. Specifically, the Office of Administration will (i)
provide to the individual any records, including those required to be
provided under 10 CFR 73.57(e)(1), that were considered in the
trustworthiness and reliability determination; and (ii) resolve any
challenge by the individual to the completeness or accuracy of these
records. The individual may make this challenge by submitting
information and/or an explanation to the Office of Administration
within 10 days of the distribution of the records described previously.
(b) The requestor may challenge a final adverse determination by
submitting a request for review of the adverse determination to the
Chief Administrative Judge of the Atomic Safety and Licensing Board
Panel in accordance with 10 CFR 2.336(f)(1)(iv) and by the method
described in the final adverse determination. Because a final adverse
determination is sufficient grounds for denying a subsequent request
for SGI access submitted after the notice of intended operation is
published, the requestor should not wait until a subsequent denial to
appeal the adverse trustworthiness and reliability determination.
(3) If the notice of intended operation is published while the
background check is in progress or while an appeal of an adverse
determination is pending, the petitioner should still submit the other
components of its request for access consistent with the requirements
set forth in the notice of intended operation. Those elements of the
access determination will be handled in accordance with the procedures
and timelines in the notice of intended operation. The petitioner's
submission of its request need not repeat the information already
submitted specifically for the background check--it may simply
reference the pre-clearance background check request--but it must
provide all other information requested in the notice of intended
operation.\9\ To avoid confusion, however, the submission should
identify the petitioner's contact information, the agency action, and
the notice of intended operation.
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\9\ If a background check has been initiated using the pre-
clearance process and the NRC staff has made a final adverse
determination, the requestor should timely appeal that determination
if it intends to pursue its request for access; the staff will rely
on that determination and will not initiate a second background
check if the requestor submits the complete access request described
in the notice of intended operation.
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III. Public Meeting
The NRC will hold a public information meeting on the ITAAC hearing
process on October 30, 2019 at 6:00 p.m. at Augusta Technical College,
Waynesboro, Georgia. At the meeting, the NRC will provide background
information on the ITAAC hearing process and answer questions on it.
The notice for this public meeting will be made available
electronically in
[[Page 54932]]
ADAMS and posted on the NRC's Public Meeting Schedule website at
https://www.nrc.gov/pmns/mtg. The agenda for the public meeting will be
noticed no fewer than 10 days prior to the meeting on the Public
Meeting Schedule website. Any meeting updates or changes will be made
available on this website. Information regarding topics to be
discussed, changes to the agenda, whether the meeting has been
cancelled or rescheduled, and the time allotted for public questions
can be obtained from the Public Meeting Schedule website.
Dated at Rockville, Maryland, this 8th day of October, 2019.
For the Nuclear Regulatory Commission.
Victor E. Hall,
Chief, Construction Inspection Program Branch, Division of Licensing,
Siting, and Environmental Analysis, Office of New Reactors.
[FR Doc. 2019-22277 Filed 10-10-19; 8:45 am]
BILLING CODE 7590-01-P