UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

OFFICE OF THE GENERAL COUNSEL 

WASHINGTON, D.C. 20555-0001 

February 29, 2008 

PROCEDURES TO ALLOW POTENTIAL INTERVENORS TO GAIN ACCESS TO RELEVANT 

RECORDS THAT CONTAIN SENSITIVE UNCLASSIFIED NON-SAFEGUARDS 

INFORMATION OR SAFEGUARDS INFORMATION

Intent

The U.S. Nuclear Regulatory Commission (NRC or Commission) has established procedures to 

allow potential parties and their representatives to gain access to certain records that contain 

Sensitive Unclassified Non-Safeguards Information (SUNSI) or Safeguards Information (SGI). 

These procedures will be applicable to persons who have requested or who may request to 

participate in NRC adjudications conducted under 10 CFR Part 2, Subparts G, K, or L, who, in 

connection with a particular proceeding, seek to gain access to such records. 

Background Information

Commission regulations in 10 CFR Part 2, “Rules of Practice for Domestic Licensing 

Proceedings and Issuance of Orders” govern the conduct of NRC adjudicatory proceedings. 

Potential parties who may request a hearing or petition to intervene in a hearing under 10 CFR 

Part 2 may deem it necessary to obtain access to SUNSI (including, but not limited to, 

proprietary, confidential commercial, security-related information) or SGI (as defined in 10 CFR 

§ 73.2) to meet Commission requirements for hearing requests or for intervention. The 

Commission has finalized procedures (see the Attachments to this notice) to allow such 
- 2 -

 

potential parties to submit information requests and enter into protective 

agreements prior to becoming a party to a proceeding so that those who have a need for SUNSI 

or a “need to know” for SGI can receive relevant information to prepare a valid contention. By 

notice in the Federal Register, the Commission sought public comment on a draft version of 

these procedures (see 72 FR 43569; August 6, 2007). The Commission has modified the 

procedures (and this background information section) in response to comments received. In 

addition, a more detailed response to the comments is provided on the NRC website at ADAMS 

Accession No. ML080380633. 

As explained below, the attached procedures would be included by order in a Federal Register 

notice of hearing or a notice of opportunity for hearing. The Commission expects that requests 

for such information at this stage of a proceeding will initially be made to and decided by the 

NRC staff as specified in the procedures. However, these procedures will not be employed 

automatically in all proceedings, but only to those when the Commission deems them 

appropriate (e.g., those instances in which the application that is the subject of the potential 

proceeding contains SUNSI or SGI which is relevant to the licensing action to which the 

application applies). Although the Commission anticipates that they will be appropriate for most 

types of proceedings, these procedures will not apply to (1) license transfer adjudications, in 

which the Commission has already chosen a different procedural approach;1

 and (2) the 

1 See Consolidated Edison Co. (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 231 (2001); 

Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 

3), CLI-00-22, 52 NRC 266, 292 (2000). In these decisions, the Commission established a procedure for 

making confidential commercial information available to petitioners to intervene in which the applicant and 

petitioners may negotiate a confidentiality agreement or a proposed protective order. If no agreement 

can be reached, one or more individuals may move for issuance of a protective order. 
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pending High Level Waste (HLW) Pre- License Application Presiding Officer 

proceeding (PAPO), or any subsequent adjudication regarding the Department of Energy’s 

expected application for a construction authorization for an HLW repository. 

The procedures entail a case-by-case approach for reviewing requests for access to SUNSI and 

SGI, and incorporate the principles that have previously been applied for access to sensitive 

financial information in license transfer proceedings. These principles include requiring a 

showing of need for the information and a reasonable likelihood of establishing standing. The 

procedures reflect the longstanding practice of NRC staff access determinations in the first 

instance, subject to review by a presiding officer if contested. The procedures also describe how 

the public will be informed of this process. The procedures address: 

 (1) When and where to submit requests for access to SUNSI and SGI that is 

possessed by the NRC;2

 (2) Who will assess initially whether the proposed recipient has shown a need for 

SUNSI (or need to know for SGI) and a likelihood of establishing standing; 

 (3) Who will decide initially whether the proposed recipient is qualified (i.e., 

trustworthy and reliable) to receive SGI; 

 (4) Use of nondisclosure affidavits/agreements and protective orders; and 

2

 The procedures do not address information possessed solely by a licensee or applicant. 
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(5) Time periods for making standing, need, and access determinations, 

producing documents, submitting contentions, and seeking review of 

determinations. 

Discussion

Under current Commission practice, access to sensitive financial information by those seeking 

participation in license transfer proceedings should be granted when the NRC has a reasonable 

basis to believe a petitioner can establish standing. The Commission believes this approach 

should be followed for granting access to the broader class of SUNSI and to Safeguards 

Information, because the approach is essential for determining whether a request is for the 

legitimate purpose of preparing a hearing request or intervention petition. 

In addition to the likelihood of establishing standing, a showing of “need” (for access to SUNSI) 

or “need to know”3

 (for SGI access) is also important to prevent misuse or unnecessary 

disclosure of sensitive information. A need to know for SGI access includes demonstrating 

technical competence, and is required in order to prevent a “fishing expedition” by untutored lay 

persons.4

 A showing of technical competence is required of anyone (whether a potential party, 

3

 “Need to know” is more than a general relevance test and includes a determination that the SGI 

requested is indispensable and that the “recipient” is technically competent to evaluate the information 

requested. See, Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-6, 59 NRC 62, 72-

73 (2004); Catawba, CLI-04-21, 60 NRC 21, 27-31 (2004). Broad SGI requests under these procedures 

are highly unlikely to meet this standard; furthermore, NRC staff redaction of information from requested 

documents before their release may be appropriate to comport with the need to know requirement. As 

SGI access determinations under these procedures remain subject to need to know, these procedures do 

not authorize unrestricted disclosure or less scrutiny than ordinarily would be applied in connection with 

an already-admitted contention. 

4 See Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-21, 60 NRC 21, 31 

(2004) (boards should not tolerate “fishing expeditions” in the security arena). 
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counsel or prospective witness) who requests access to SGI. Technical competence can be 

shown either by a demonstration by the individual seeking access that he/she has the requisite 

expertise to evaluate the requested information, or through reliance on an expert, consultant, or 

other person who possesses the knowledge, skill, experience, or training to understand and use 

the SGI sought. This dual showing of need to know and likelihood of establishing standing will 

ensure, consistent with the Commission’s admonition, that access to SGI “be as narrow as 

possible,” limiting disclosure to that “necessary or required.”5

 Finally, because granting access 

to SGI additionally involves a determination that the recipient is trustworthy and reliable, these 

procedures describe the process by which a potential party can request the initiation of the 

necessary background check. 

The procedures, which would be included by order in a Federal Register notice of hearing or a 

notice of opportunity for hearing, would instruct persons who claim a need for access to SUNSI 

or SGI in order to prepare a hearing request or intervention petition to submit a request within 

ten days of the issuance of the notice. The notice would further indicate that any requests 

submitted subsequent to this 10-day period would not be entertained unless the requester 

demonstrates good cause for late submission. 

The procedures include time periods for submission of requests, for NRC staff determinations, 

and for challenges to NRC staff determinations (both favorable and adverse). These periods 

are intended to minimize the potential for delay in the admission of contentions. These 

5 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-06, 59 NRC 62, 74 (2004) 

(citing 10 CFR §§ 73.2, 73.21, 95.5). 
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procedures also include a “pre-clearance” process that would permit a potential party 

who may seek access to SGI to request initiation of the necessary background check in 

advance of a notice of hearing or notice of opportunity for hearing. The Commission considers 

this pre-clearance process to be available to potential parties in connection with a particular 

action even before the general procedures are published in the Federal Register with respect to 

that action. 

Assuming that both need and a likelihood of establishing standing are shown, a requester could 

be granted access to SUNSI within 30 days of receipt of the request or as soon as redacted 

versions could be prepared (if not already supplied by an applicant or licensee) and/or reviewed 

by the NRC staff to ensure that information beyond the scope of the request (or not shown to be 

needed) is not disclosed.6

The target date for SGI access determinations under these procedures is within 180 days after 

receipt of a request; however, there could be instances when processing of the request could 

take longer.7

 A determination of whether to grant access to SGI will await completion of 

background checks to verify that the intended recipient is trustworthy and reliable, the 

completion of a readiness inspection of the recipient’s information protection systems, 

6

 Confidential commercial information is routinely made available in NRC licensing proceedings 

under a protective order without background investigations. See, 10 CFR §§ 2.390(b)(6), 2.390(b)(2), 

2.705(c). 

7

 The NRC staff’s best estimate is that determinations can be completed in four to six months. 

However, because the completion time for access determinations may vary based on the information 

revealed during the background check (including a criminal history records check), and because some 

portion of the background check is usually conducted by agencies other than the NRC, the processing 

time may vary and is difficult to predict with any certainty. 
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preparation or review of redactions, and agreement on disclosure terms. To reduce 

the potential for delay in a proceeding, the procedures provide that the NRC staff will gather, 

redact, or review redacted SGI documents and complete any pre-disclosure inspections prior to 

the completion of a background check by outside agencies and an NRC staff determination that 

the proposed recipient is trustworthy and reliable.8

 Consistent with current practice, access to 

sensitive information would be provided only after execution of a Non-Disclosure Agreement (if 

an applicant or licensee is providing access to sensitive financial information) or a NonDisclosure Affidavit that reflects an agreement to abide by the terms of a protective order, as 

well as the issuance of a protective order by the presiding officer. 

Disputes concerning the NRC staff’s “need” or access determination would be reviewable by 1) 

the presiding officer in the ongoing licensing proceeding; 2) if no presiding officer has yet been 

assigned, by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, or 

if he or she is unavailable, with another administrative judge, or with an administrative law judge 

with jurisdiction pursuant to 10 CFR § 2.318(a); or 3) if an officer has been designated to rule on 

information access issues, by such an officer. Following action on the access request pursuant 

to such review, the procedures would give way to the normal process for litigating disputes 

concerning access to information.9

 The Commission has approved a final rule that expands 10 

8

 However, if a potential party uses the “pre-clearance” process (described in the Attachments to 

this notice) to request initiation of a background check for SGI access, it is possible that the background 

check would be complete before the other procedural steps could be taken. 

9

 As of October 15, 2007, the NRC’s final “E-Filing Rule” became effective. See Use of Electronic 

Submissions in Agency Hearings (72 FR 49139; Aug. 28, 2007). Requesters should note that the filing 

requirements of that rule apply to appeals of NRC staff determinations regarding information access 

(because the appeals must be served on a presiding officer or the Commission, as applicable), but not to 

the initial SUNSI/SGI requests submitted to the NRC staff under these procedures. 
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CFR § 2.311 to permit interlocutory review by the Commission of orders ruling on such NRC 

staff determinations.10

Contact 

Tison Campbell 

Attorney, Office of the General Counsel 

U.S. Nuclear Regulatory Commission 

Washington, DC 20555-0001 

Telephone 301-415-8579 

E-mail tison.campbell@nrc.gov

Attachments: 

1. Procedures for Access to Sensitive Unclassified Non-Safeguards Information (SUNSI) 

and Safeguards Information (SGI) for Contention Preparation 

2. General Target Schedule for Processing and Resolving Requests for Access to 

Sensitive Unclassified Non-Safeguards Information (SUNSI) and Safeguards Information 

(SGI) in Adjudicatory Proceedings

 

10 See STAFF REQUIREMENTS - AFFIRMATION SESSION, 12:55 P.M., THURSDAY, 

FEBRUARY 7, 2008, COMMISSIONERS’ CONFERENCE ROOM . . . I. SECY-07-0217 - FINAL RULE - 

10 CFR 2.311 “INTERLOCUTORY REVIEW OF RULINGS ON REQUESTS FOR 

HEARINGS/PETITIONS TO INTERVENE, SELECTION OF HEARING PROCEDURES, AND 

REQUESTS BY POTENTIAL PARTIES FOR ACCESS TO SENSITIVE UNCLASSIFIED NONSAFEGUARDS INFORMATION AND SAFEGUARDS INFORMATION.” 
 

Attachment 1 

Procedures for Access to Sensitive Unclassified 

Non-Safeguards Information (SUNSI) and Safeguards Information (SGI) 

for Contention Preparation 

1. When the circumstances of a potential adjudicatory proceeding make it appropriate to do 

so, a notice of hearing or opportunity for hearing published by the NRC will contain an 

order with instructions regarding how to request access to documents containing 

sensitive unclassified information (including SUNSI and SGI).1

2. Within ten (10) days after publication of such a notice of hearing or opportunity for 

hearing, any potential party, as defined in 10 CFR 2.4, who believes access to SUNSI or 

SGI is necessary for a response to the notice may request access to SUNSI or SGI 

needed for participation in a proceeding or hearing under 10 CFR Part 2, Subparts G, K, 

or L.2

 A “potential party” is any person who intends or may intend to participate as a 

party by demonstrating standing and the filing of an admissible contention under 10 CFR 

§ 2.309. Requests submitted later than ten (10) days will not be considered absent a 

1

 The NRC staff will publish a notice of receipt of a license application that contains SUNSI and/or 

SGI at the earliest reasonable time. This should further enable potential parties to review portions of an 

application in which they are interested during the routine 30-day period in which the NRC staff considers 

whether the application is acceptable for docketing, before the 10-day period for submitting information 

access requests would commence. 

2

 These procedures do not apply to license transfer adjudications, nor do they apply to the 

pending High Level Waste (HLW) Pre-License Application Presiding Officer (PAPO) proceeding, or any 

subsequent adjudication regarding the Department of Energy’s expected application for a construction 

authorization for a HLW repository. 
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showing of good cause for the late filing, addressing why the request could not 

have been filed earlier. To minimize delays, potential parties who anticipate seeking 

access to SGI may elect to request initiation of the background check component of the 

access determination in advance of a notice of hearing being issued; procedures for this 

“pre-clearance” process are described below in paragraph 11. 

3. The requester shall submit a letter requesting permission to access SUNSI and/or SGI to 

the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 

20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the 

Associate General Counsel for Hearings, Enforcement and Administration, Office of the 

General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail 

address for both offices is U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, 

Rockville, MD 20852. The e-mail address for the Office of the Secretary and the Office 

of the General Counsel are HearingDocket@nrc.gov and OGCmail@nrc.gov, 

respectively. The request must include the following information: 

 a. A description of the licensing or enforcement action with citations to the Federal 

Register notice of hearing or opportunity for hearing concerning a licensing or 

regulatory action, or the NRC web notice of opportunity for hearing, if any; 

 b. The name and address of the potential party and a description of the potential 

party’s particularized interest that could be harmed by the potential licensing or 

enforcement action identified in (a) or harmed if the enforcement action is not 

sustained; 
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c. If the request is for SUNSI, the identity of the individual requesting access to 

SUNSI and the requester’s need for the information in order to meaningfully 

participate in an adjudicatory proceeding, particularly why publicly available 

versions of an application would not be sufficient to provide the basis and 

specificity for a proffered contention; 

 d. If the request is for SGI, the identity of the individual requesting access to SGI 

and the identity of any expert, consultant or assistant who will aid the requester in 

evaluating the SGI, and information that shows: 

(i) Why the information is indispensable to meaningful participation in a licensing 

proceeding; and 

 (ii) The technical competence (demonstrable knowledge, skill, experience, 

training or education) of the requester to understand and use (or evaluate) the 

requested information to provide the basis and specificity for a proffered 

contention. The technical competence of a potential party or its counsel may be 

shown by reliance on a qualified expert, consultant or assistant who 

demonstrates technical competence as well as trustworthiness and reliability, 

and who agrees to sign a non-disclosure affidavit and be bound by the terms of a 

protective order; and 
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 e. If the request is for SGI, Form SF-85, “Questionnaire for Non-Sensitive 

Positions,” Form FD-258 (fingerprint card), and a credit check release form 

completed by the individual who seeks access to SGI and each individual who 

will aid the requester in evaluating the SGI. For security reasons, Form SF-85 

can only be submitted electronically through a restricted-access database. To 

obtain online access to the form, the requester should contact the NRC’s Office 

of Administration at 301-415-0320.3

 The other completed forms must be signed 

in original ink, accompanied by a check or money order payable in the amount of 

[$191.00]4

 to the U.S. Nuclear Regulatory Commission for each individual, and 

mailed to the: 

 Office of Administration 

 Security Processing Unit 

 Mail Stop T-6E46 

 U.S. Nuclear Regulatory Commission 

 Washington, DC 20555-0012. 

 These forms will be used to initiate the background check, which includes 

fingerprinting as part of a criminal history records check. Note: copies of these 

forms do not need to be included with the request letter to the Office of the 

Secretary, but the request letter should state that the forms and fees have been 

submitted as described above. 

 

3

 The requester will be asked to provide his or her full name, social security number, date and 

place of birth, telephone number, and email address. After providing this information, the requester 

usually should be able to obtain access to the online form within one business day. 

4

 The cost of conducting the background check is expected to change periodically. Therefore, the 

Commission will state the applicable amount at the time the procedures are noticed in the Federal 

Register in connection with a particular proceeding. 
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4. To avoid delays in processing requests for access to SGI, all forms should be reviewed 

for completeness and accuracy (including legibility) before submitting them to the NRC. 

Incomplete packages will be returned to the sender and will not be processed. 

5. Based on an evaluation of the information submitted under items 2 and 3.a through 3.d, 

above, the NRC staff will determine within ten days of receipt of the written access 

request whether (1) there is a reasonable basis to believe the petitioner is likely to 

establish standing to participate in an NRC proceeding, and (2) there is a legitimate 

need for access to SUNSI or need to know the SGI requested. For SGI, the need to 

know determination is made based on whether the information requested is necessary 

(i.e., indispensable) for the proposed recipient to proffer and litigate a specific contention 

in an NRC proceeding5

 and whether the proposed recipient has the technical 

competence (demonstrable knowledge, skill, training, education, or experience) to 

evaluate and use the specific SGI requested in the proceeding. 

6. If standing and need to know SGI are shown, the NRC staff will further determine based 

upon completion of the background check whether the proposed recipient is trustworthy 

and reliable. The NRC staff will conduct (as necessary) an inspection to confirm that the 

recipient’s information protection systems are sufficient to protect SGI from inadvertent 

5

 Broad SGI requests under these procedures are thus highly unlikely to meet the standard for 

need to know; furthermore, staff redaction of information from requested documents before their release 

may be appropriate to comport with this requirement. These procedures do not authorize unrestricted 

disclosure or less scrutiny of a requester’s need to know than ordinarily would be applied in connection 

with an already-admitted contention. 
- 6 -

 

release or disclosure. Recipients may opt to view SGI at the NRC’s facility rather 

than establish their own SGI protection program to meet SGI protection requirements. 

7. A request for access to SUNSI or SGI will be granted if: 

 a. The request has demonstrated that there is a reasonable basis to believe that a 

potential party is likely to establish standing to intervene or to otherwise 

participate as a party in a licensing or enforcement proceeding; 

b. The proposed recipient of the information has demonstrated a need for SUNSI or 

a need to know for SGI, and that the proposed recipient of SGI is trustworthy and 

reliable; 

 c. The proposed recipient of the information has executed a Non-Disclosure 

Agreement or Affidavit and agrees to be bound by the terms of a Protective 

Order setting forth terms and conditions to prevent the unauthorized or 

inadvertent disclosure of SUNSI and/or SGI; and 

d. The presiding officer has issued a protective order concerning the information or 

documents requested.6

 Any protective order issued shall provide that the 

hearing or intervention petitioner must file SUNSI or SGI contentions 25 days 

6

 In the instances when a notice of hearing or a notice of proposed action has been issued, but a 

presiding officer has not yet been designated, the Chief Administrative Judge will issue such orders, or 

will appoint a presiding officer to do so. 
- 7 -

 

after receipt of (or access to) that information. However, if more than 25 

days remain between the petitioner’s receipt of (or access to) the information and 

the deadline for filing all other contentions (as established in the notice of hearing 

or opportunity for hearing), the petitioner may file its SUNSI or SGI contentions 

by that later deadline. 

8. If the request for access to SUNSI or SGI is granted, the terms and conditions for access 

to sensitive unclassified information will be set forth in a draft protective order and 

affidavit of non-disclosure appended to a joint motion by the NRC staff, any other 

affected parties to the proceeding7

 and the hearing or intervention petitioner(s). If the 

diligent efforts by the relevant parties or petitioner(s) fail to result in an agreement on the 

terms and conditions for a draft protective order or non-disclosure affidavit, the relevant 

parties to the proceeding or the petitioner(s) should notify the presiding officer within five 

(5) days, describing the obstacles to the agreement. 

9. If the request for access to SUNSI is denied by the NRC staff or a request for access to 

SGI is denied by NRC staff either after a determination on standing and need to know or, 

later, after a determination on trustworthiness and reliability, the NRC staff shall briefly 

state the reasons for the denial. Before the Office of Administration makes an adverse 

determination regarding access, the proposed recipient must be provided an opportunity 

7

 Parties other than the requester and the NRC staff will be notified by the NRC staff of a 

favorable access determination (and may participate in the development of such a motion and protective 

order) if it concerns SUNSI and if the party’s interest independent of the proceeding would be harmed by 

the release of the information (e.g., as with proprietary information). 
- 8 -

 

to correct or explain information. The requester may challenge the NRC staff’s 

adverse determination with respect to access to SUNSI or with respect to standing or 

need to know for SGI by filing a challenge within five (5) days of receipt of that 

determination with (a) the presiding officer designated in the licensing or enforcement 

proceeding identified in the original request for access; (b) if no presiding officer has 

been appointed, the Chief Administrative Judge, or if he or she is unavailable, another 

administrative judge, or an administrative law judge with jurisdiction pursuant to 

§ 2.318(a); or (c) if another officer has been designated to rule on information access 

issues, with that officer. In the same manner, an SGI requester may challenge an 

adverse determination on trustworthiness and reliability by filing a challenge within 

fifteen (15) days of receipt of that determination. 

 In the same manner, a party other than the requester may challenge an NRC staff 

determination granting access to SUNSI whose release would harm that party’s interest 

independent of the proceeding. Such a challenge must be filed within five (5) days of 

the notification by the NRC staff of its grant of such a request. 

 If challenges to the NRC staff determinations are filed, these procedures give way to the 

normal process for litigating disputes concerning access to information. The availability 

of interlocutory review by the Commission of orders ruling on such NRC staff 

determinations (whether granting or denying access) is governed by 10 CFR § 2.311.8

8

 As of October 15, 2007, the NRC’s final “E-Filing Rule” became effective. See, Use of 

Electronic Submissions in Agency Hearings (72 FR 49139; Aug. 28, 2007). Requesters should note that 

the filing requirements of that rule apply to appeals of NRC staff determinations (because they must be 
- 9 -

 

10. The Commission expects that the NRC staff and presiding officers (and any other 

reviewing officers) will consider and resolve requests for access to SUNSI and/or SGI, 

and motions for protective orders, in a timely fashion in order to minimize any 

unnecessary delays in identifying those intervenors/petitioners who have standing and 

who have propounded contentions meeting the specificity and basis requirements in 10 

CFR Part 2. 

11. Pre-clearance procedures for potential parties who may seek access to SGI. As 

discussed in the general procedures above, one requirement for access to SGI is a 

determination that the recipient is trustworthy and reliable, a determination that the NRC 

staff makes based on a background check. Because background checks may take up to 

several months to complete, potential parties seeking access to SGI may elect to 

request initiation of the background check in advance of an application being filed that 

may contain or concern SGI.9

 By following the procedures described below, potential 

parties may submit such a request as early as 180 days before the projected date of the 

filing of an application. Such a projected application date may be described, for 

example, in an applicant’s letter of intent that is made publicly available through the NRC 

served on a presiding officer or the Commission, as applicable), but not to the initial SUNSI/SGI requests 

submitted to the NRC staff under these procedures. 

9

 As with the general procedures above, this pre-clearance process does not apply to license 

transfer adjudications or to the pending High Level Waste (HLW) Pre-License Application proceeding 

(PAPO), or any subsequent adjudication regarding the Department of Energy’s expected application for a 

construction authorization for a HLW repository. The Commission also recognizes that “potential parties” 

is an imperfect term in the “pre-clearance” context, because such requests may be submitted before an 

application has been filed or a hearing noticed and no proceeding may ultimately occur. 
- 10 -

 

website. This procedure likewise would allow potential parties to submit a 

request after an application has been received by the NRC but before it has been 

docketed and the notice of opportunity for hearing issued. 

By offsetting a portion of the lead time that may be involved in completing background 

checks, the Commission intends this process to minimize unnecessary delays in 

preparing (and, if appropriate, adjudicating) security-related contentions. However, this 

pre-clearance process alone will not authorize access to SGI; as described in the 

general procedures, other steps are necessary, including a showing of need to know, 

analysis of the likelihood of establishing standing,10 and the implementation of nondisclosure agreements/affidavits. Because those steps are contingent on an application 

ultimately being docketed for review, there is no guarantee that the early initiation of the 

background check will be of practical use to a potential party. For example, applicants 

may choose not to submit the application, application dates may be delayed, an 

application may not be accepted for docketing based on the NRC staff’s docketing 

review, or an application may not contain or concern SGI. Also, it is possible that the 

requesting party ultimately will not satisfy the other requirements for access to SGI. 

 

Consequently, it is the potential party’s choice whether to pursue the pre-clearance 

process. The costs for initiating the background check are not refundable even if no 

10 Full evaluation of a “pre-clearance” requester’s likelihood of establishing standing is not 

necessary until a subsequent specific request for access. For the limited purpose of determining whether 

to initiate the requested background check, the NRC staff will review the pre-clearance requester’s brief 

statement of interest in the proceeding or anticipated proceeding only to confirm that there is some 

description of why the requester’s interest could be affected. 
- 11 -

application is ultimately submitted and docketed. Nor are those costs 

refundable in the event of an adverse determination on the background check or on 

failure to satisfy other requirements for access such as need to know. Nevertheless, 

given the strict timelines for submission of and rulings on the admissibility of contentions 

(including security-related contentions) once an application is docketed, potential parties 

should not expect additional flexibility in those established time periods if they decide not 

to exercise the pre-clearance option. 

Pre-Clearance Procedures

 (A) A pre-clearance request should be submitted by letter, addressed as per 

paragraph 3 above, that: 

(i) Identifies the anticipated or noticed application or action and requests 

initiation of a background check for the purposes of determining 

trustworthiness and reliability for access to SGI that may be relevant to 

such an application or action; 

(ii) Identifies the Federal Register notice, NRC website notice, letter of intent, 

or other notice that prompted the request; 

(iii) Provides the information requested in paragraph 3.b above (the name 

and address of the potential party and a brief description of its interest in 

the potential action); and 

(iv) States that the completed forms and fees requested in paragraph 3.e 

above (for each individual requesting initiation of a background check for 

access to SGI and, if applicable, for each individual who will aid the 
- 12 -

 

requester in evaluating the SGI) have been submitted as provided in 

that paragraph.11

The NRC staff will not begin processing the requested background check if the potential 

party fails to provide the information in items (i)-(iv) above. As stated in paragraph 4 

above, potential parties should review all forms for completeness and accuracy before 

submitting them to the NRC. 

 (B) Once the background check has been conducted: 

 (i) If the background check results in a favorable determination concerning 

the potential party’s trustworthiness and reliability, the NRC staff will so 

notify the potential party. In its discretion, the responsible staff may 

proceed at that time with an inspection of the requestor’s information 

protection system as provided in paragraph 6 above. If a notice of 

hearing subsequently is issued, an associated request for access to 

specified SGI will still need to address the other requirements for access, 

in accordance with the general procedures above. 

 (ii) If the background check results in an adverse determination concerning 

the potential party’s trustworthiness and reliability, the NRC staff will 

provide the potential party with a brief statement of the reasons for denial. 

Before the Office of Administration makes an adverse determination, the 

proposed recipient must be provided an opportunity to correct or explain 

11 As noted above, the cost of conducting the background check is expected to change 

periodically. To confirm the currently applicable fee for conducting the background check, a requester 

using the pre-clearance process should first contact the NRC’s Office of Administration at 301-415-0320. 
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information. The requester may challenge that adverse 

determination by following the process described in paragraph 9 above. 

Moreover, because such an adverse determination is sufficient grounds 

for denying a subsequent request for SGI access if a notice of hearing is 

issued, the requester should not wait until a subsequent denial to appeal 

the trustworthiness and reliability finding. 

 (C) If the notice of hearing or notice of opportunity for hearing is issued while the 

background check is in progress or while an appeal of an adverse determination 

is pending, the potential party should still submit the other components of its 

request for access consistent with the general process above. Those elements 

of the access determination will be handled in accordance with those general 

procedures and timelines. The potential party’s submission of its request (within 

10 days of that notice) need not repeat the information already submitted 

specifically for the background check – it may simply reference the pre-clearance 

request letter – but it should provide all other information requested in the 

general procedures.12 To avoid confusion, however, the submission should 

identify the potential party’s contact information, the agency action, and the 

notice of hearing. 

12 If a background check has been initiated using the pre-clearance process and the NRC staff 

has made an adverse determination, the requester 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 requester submits the complete access request described in the general 

procedures. 
Attachment 2 

General Target Schedule for Processing and Resolving Requests for Access to 

Sensitive Unclassified Non-Safeguards Information (SUNSI) and Safeguards Information 

(SGI) in Adjudicatory Proceedings 

Day Event/Activity

--- Initiation of pre-clearance process, up to 180 days before the projected date of 

the filing of an application. Determinations (and appeals, if necessary) per that 

process may be complete before an application is docketed; if not, they will 

proceed concurrent with milestones below.1

 To further expedite the opportunity 

for potential parties to determine whether to seek access to SUNSI and/or SGI, 

the NRC staff will publish a notice of receipt of a license application that contains 

SUNSI and/or SGI at the earliest reasonable time. 

0 Publication of Federal Register notice or other notice of proposed action and 

opportunity for hearing, including order with instructions for access requests. 

10 Deadline for submitting requests for access to SUNSI and/or SGI with 

information: supporting the standing of a potential party identified by name and 

 

1

 NRC staff aims to complete any “pre-clearance” process background check (described in the 

associated procedures for access to SUNSI and SGI) within 180 days of receipt of the request. As with 

the general target schedule, requesters may challenge the NRC staff’s adverse determination with 

respect to access to SUNSI or with respect to standing or need to know for SGI by filing a challenge 

within five (5) days of receipt of that determination. An SGI requester may challenge an adverse 

determination on trustworthiness and reliability by filing a challenge within fifteen (15) days of receipt of 

that determination. However, because the remaining components of such requests for access must await 

publication of the notice of hearing, the balance of the review would follow the general target schedule. 
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address; describing the need for the information in order for the potential party to 

participate meaningfully in an adjudicatory proceeding; demonstrating that 

access should be granted (e.g., showing technical competence for access to 

SGI); and, for SGI, including application fee for fingerprint/background check. 

20, 30 or 60 Deadline for submitting petition for intervention containing: (i) demonstration of 

standing; (ii) all contentions whose formulation does not require access to SUNSI 

and/or SGI (+25 Answers to petition for intervention; +7 petitioner/requestor 

reply). 

20 NRC staff informs the requester of the staff’s determination whether the request 

for access provides a reasonable basis to believe standing can be established 

and shows (1) need for SUNSI or (2) need to know for SGI. (For SUNSI, NRC 

staff also informs any party to the proceeding whose interest independent of the 

proceeding would be harmed by the release of the information.) If the NRC staff 

makes the finding of need for SUNSI and likelihood of standing, the NRC staff 

begins document processing (preparation of redactions or review of redacted 

documents). If the NRC staff makes the finding of need to know for SGI and 

likelihood of standing, the NRC staff begins a background check (including 

fingerprinting for a criminal history records check), information processing 

(preparation of redactions or review of redacted documents), and readiness 

inspections. 
- 3 -

25 If the NRC staff finds no “need,” “need to know,” or likelihood of standing, the 

deadline for petitioner/requester to file a motion seeking a ruling to reverse the 

NRC staff’s denial of access; the NRC staff files copy of access determination 

with the presiding officer (or Chief Administrative Judge or other designated 

officer, as appropriate). If the NRC staff finds “need” for SUNSI, the deadline for 

any party to the proceeding whose interest independent of the proceeding would 

be harmed by the release of the information to file a motion seeking a ruling to 

reverse the NRC staff’s grant of access. 

30 Deadline for the NRC staff reply to motions to reverse NRC staff 

determination(s). 

40 (Receipt +30) If the NRC staff finds standing and need for SUNSI, deadline for 

NRC staff to complete information processing and file motion for Protective Order 

and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file NonDisclosure Agreement for SUNSI. 
- 4 -

190 (Receipt +180) If the NRC staff finds standing, need to know for SGI, and 

trustworthiness and reliability, deadline for the NRC staff to file motion for 

Protective Order and draft Non-disclosure Affidavit (or to make a determination 

that the proposed recipient of SGI is not trustworthy or reliable). Note: Before 

the Office of Administration makes an adverse determination regarding access, 

the proposed recipient must be provided an opportunity to correct or explain 

information. 

205 Deadline for petitioner to seek reversal of a final adverse NRC staff determination 

either before the presiding officer or another designated officer. 

A If access granted: Issuance of presiding officer or other designated officer 

decision on motion for protective order for access to sensitive information 

(including schedule for providing access and submission of contentions) or 

decision reversing a final adverse determination by the NRC staff. 

A + 3 Deadline for filing executed Non-Disclosure Affidavits. Access provided to 

SUNSI and/or SGI consistent with decision issuing the protective order. 

A + 28 Deadline for submission of contentions whose development depends 

upon access to SUNSI and/or SGI. However, if more than 25 days remain 

between the petitioner’s receipt of (or access to) the information and the deadline 

for filing all other contentions (as established in the notice of hearing or 
- 5 -

opportunity for hearing), the petitioner may file its SUNSI or SGI contentions by 

that later deadline. 

A + 53 (Contention receipt +25) Answers to contentions whose development depends 

upon access to SUNSI and/or SGI. 

A + 60 (Answer receipt +7) Petitioner/Intervenor reply to answers 

B Decision on contention admission.