[Federal Register Volume 85, Number 228 (Wednesday, November 25, 2020)]
[Notices]
[Pages 75380-75383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26103]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 52-026; NRC-2008-0252]


Southern Nuclear Operating Company, Inc.; Vogtle Electric 
Generating Plant, Unit 4; Background Check Process for Participation in 
ITAAC Proceeding

AGENCY: Nuclear Regulatory Commission.

ACTION: Opportunity to initiate background check for access to 
safeguards information.

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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 4. 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 the Defense Counterintelligence 
and Security Agency (DCSA) well before the hearing process begins.

DATES: This pre-clearance process is available until publication in the 
Federal Register of the notice of intended operation for VEGP Unit 4. 
When the notice of intended operation is published, it will govern 
access to SGI for the proceeding on VEGP Unit 4.

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 Docket IDs in Regulations.gov to Jennifer Borges; 
telephone: 301-287-9127; 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: Cayetano Santos Jr., Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone: 301-415-7270, 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 4 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 
4. When the notice of intended operation is published, it will govern 
access to SGI for the proceeding on VEGP Unit 4.

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.

B. Information on ITAAC Closure Process and Associated Hearing 
Opportunity

    Southern Nuclear Operating Company, Inc., was issued a COL for VEGP 
Unit 4 on February 10, 2012. Appendix C of the COL includes the

[[Page 75381]]

ITAAC for VEGP Unit 4. 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 4 are available 
electronically at https://www.nrc.gov/reactors/new-reactors/col-holder/vog4.html. These supporting documents include an ITAAC status report 
(https://www.nrc.gov/reactors/new-reactors/new-licensing-files/vog4-icnsr.pdf), which provides links to (1) the licensee's ITAAC 
notifications submitted under 10 CFR 52.99(c); (2) NRC construction and 
vendor 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 (UINCs), which document the NRC staff's review 
of uncompleted ITAAC notifications submitted under 10 CFR 
52.99(c)(3).\1\ 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/vog4.html includes links to other supporting documents, such as 
the combined license (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 4 
docket number, 52-026, one should enter the term ``05200026'' 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 4.
    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 4 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 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-

[[Page 75382]]

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 
69 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 DCSA 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 4 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 4. 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 
the DCSA, 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: 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.
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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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    (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, 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 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

[[Page 75383]]

SF-85 is completed electronically through a secure website that is 
owned and operated by the DCSA.
    (2) A check or money order payable in the amount of $326.00 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 4.
    (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 an NRC finding that the acceptance criteria in the 
combined license 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 (ASLBP) 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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    Dated: November 20, 2020.

    For the Nuclear Regulatory Commission.
Omar R. L[oacute]pez-Santiago,
Chief, Vogtle Project Office, Office of Nuclear Reactor Regulation.
[FR Doc. 2020-26103 Filed 11-24-20; 8:45 am]
BILLING CODE 7590-01-P