This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

41206

Vol. 63, No. 148

Monday, August 3, 1998

NUCLEAR REGULATORY

COMMISSION

10 CFR Parts 10, 11, 25, and 95

RIN 3150–AF97

Conformance to National Policies for

Access to and Protection of Classified

Information

AGENCY: Nuclear Regulatory

Commission.

ACTION: Proposed rule.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is amending its

regulations to conform the requirements

for the protection of and access to

classified information to new national

security policy documents. This

proposed rule is necessary to ensure

that classified information in the

possession of NRC licensees, certificate

holders, and others under the NRC’s

regulatory requirements is protected in

accordance with current national

policies. Additionally, changes have

been made to address new requirements

for the control of foreign visitors at

certain sites. Also, some editorial

changes are being made to reflect a

reorganization within the NRC Office of

Administration.

DATES: The comment period expires

October 2, 1998. Comments received

after this date will be considered if it is

practical to do so, but the Commission

is able to assure consideration only for

comments received on or before this

date. Comments may be submitted

either electronically or in written form.

ADDRESSES: For written comments, the

Secretary of the Commission, U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001, Attention:

Rulemaking and Adjudications Staff.

Copies of comments received may be

examined at the NRC Public Document

Room, 2120 L Street NW. (Lower Level),

Washington, DC.

You may also provide comments via

the NRC’s interactive rulemaking web

site through the NRC home page

(http://www.nrc.gov). From the home

page, select ‘‘Rulemaking’’ from the tool

bar. The interactive rulemaking web site

can then be accessed by selecting

‘‘Rulemaking Forum.’’ This site

provides the ability to upload comments

as files (any format), if your web

browser supports that function. For

information about the interactive

rulemaking web site, contact Ms. Carol

Gallagher, (301) 415–5905; e-mail

CAG@nrc.gov.

Single copies of this proposed

rulemaking may be obtained by written

request to Reproduction and

Distribution Services Section , U.S.

Nuclear Regulatory Commission,

Washington DC 20555, or by faxing a

request to (301) 415–2289. Certain

documents related to this rulemaking,

including comments received, may be

examined at the NRC Public Document

Room, 2120 L Street NW (Lower Level),

Washington, DC. These same documents

may also be viewed and downloaded

electronically via the rulemaking web

site as indicated above.

FOR FURTHER INFORMATION CONTACT:

Duane G. Kidd, Division of Facilities

and Security, Office of Administration,

U.S. Nuclear Regulatory Commission,

Washington, DC 20555–0001 telephone

(301) 415–7403, E-mail

DGK@NRC.GOV.

SUPPLEMENTARY INFORMATION:

Background

The national requirements for the

protection of and access to Classified

National Security Information have been

revised by the issuance of the National

Industrial Security Program Operating

Manual (NISPOM), Executive Order

12958, ‘‘Classified National Security

Information,’’dated April 17, 1995, and

Executive Order 12968, ‘‘Access to

Classified Information,’’ dated August 2,

1995. In order to conform to these

national security policy documents, the

NRC must revise its regulations for the

protection of classified information. The

requirements of 10 CFR parts 25 and 95

are substantially based on Executive

Orders 12958 and 12968.

The proposed rule would amend the

provisions of 10 CFR parts 10, 11, 25,

and 95 that deal with requirements for

access to and protection of classified

information that have been changed or

added by the NISPOM, the Executive

Orders, or new national guidelines on

the scope and adjudication of personnel

security investigations. Specifically,

changes include a new definition in 10

CFR part 10 for the ‘‘Personnel Security

Review Panel’’ and revisions to a

number of definitions in all four parts

to reflect a change in the name of the

Division of Security to the Division of

Facilities and Security. Additionally,

several changes to definitions were

made to reflect a change in

responsibility for certain decisions from

the Executive Director for Operations to

the Deputy Executive Director for

Management Services; revised due

process procedures; a new requirement

for a facility clearance for those

licensees or others who require access to

classified information at a facility other

than their own; additional information

on the scope and reporting requirements

for the Foreign Ownership, Control, or

Influence (FOCI) program; a

requirement to resubmit an updated

Security Practice Procedures Plan every

five years; a requirement for a visitor

control program; and greater specificity

as to when particular reports are

required. The proposed rule addresses

the intent of Executive Order 12829,

‘‘National Industrial Security Program,’’

to reduce wasteful and inefficient

duplicative oversight of private facilities

which have classified interests from

more than one Government agency.

The proposed rule would also adopt

new requirements in areas where the

executive orders, the NISPOM, or the

adjudicative guidelines require specific

procedures not included in the previous

versions of the rules. These new

requirements include: the change to a

three member Personnel Security

Review Panel from three Review

Examiners, acting individually,

reviewing the record of a case where an

individual’s eligibility for access

authorization or employment clearance

is in question; an explicit notification

that individuals whose eligibility for

access authorization or employment

clearance is in question have the right

to be represented by counsel or other

representative at their own expense and

that they have a right to the documents,

records, and reports which form the

basis for the question of their eligibility,

to the extent the documents would be

available to them under the Freedom of

Information Act or Privacy Act, and to

the entire investigative file, as permitted

by national security and other

applicable law; a change to the period
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules 41207

between reinvestigations for ‘‘L’’ and

‘‘R’’ access authorizations from five

years to ten years; a change to the fee

schedules of 10 CFR parts 11 and 25 due

to a change in the investigative

requirements for ‘‘Q,’’ ‘‘L,’’ ‘‘U,’’ and

‘‘R’’ access authorizations; and changing

the security classification markings to

conform to Executive Order 12958;

The proposed rule also republishes

for additional public comment §§ 25.15

and 95.35 which address the personnel

security investigative requirements for

access to Secret Restricted Data. These

proposed changes were originally

published as a proposed rulemaking on

August 5, 1996 (61 FR 40555), and

would have permitted access to most

Secret Restricted Data, other than that

defined as ‘‘Critical Secret Restricted

Data’’ (that term is no longer used but

the concept continues to be used for

selected types of Secret Restricted Data)

in the NISPOM and its supplement,

with an ‘‘L’’ clearance based on a

National Agency Check with Law and

Credit investigation (NACLC). The

Department of Energy (DOE) objected to

this change in their formal comments on

that proposed rule, recommending that,

pending determination of what

constitutes the most sensitive Restricted

Data and its upgrade to Top Secret, all

personnel with access to Secret

Restricted Data continue to have a ‘‘Q’’

clearance based on a Single Scope

Background Investigation (SSBI). Given

DOE’s special statutory authorities in

establishing controls for Restricted Data,

their views required special

consideration. However, because this

requirement may exceed the

requirements of applicable national

policy (i.e., the NISPOM), and result in

additional costs to licensees and

certificate holders, the NRC decided to

withdraw the changes to §§ 25.15 and

95.35 in the final rulemaking which was

published on April 11, 1997 (62 FR

17683), and to republish them later for

additional public comment to provide

interested parties an equal opportunity

to address the issues and provide

supporting rationale for their

recommendations and comments.

Environmental Impact: Categorical

Exclusion

The NRC has determined that this

proposed rule is the type of action

described in categorical exclusion 10

CFR 51.22(c)(2). Therefore, neither an

environmental impact statement nor an

environmental assessment has been

prepared for this proposed rule.

Paperwork Reduction Act Statement

This proposed rule amends

information collection requirements that

are subject to the Paperwork Reduction

Act (44 U.S.C. 3501, et seq.). This rule

has been submitted to the Office of

Management and Budget for review and

approval of the information collection

requirements.

The public reporting burden for this

collection of information is estimated to

average 8.3 hours per response,

including the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

The NRC is seeking public comment on

the potential impact of the collection of

information contained in the proposed

rule and on the following issues:

1. Is the proposed collection of

information necessary for the proper

performance of the functions of the

NRC, including whether the information

will have practical utility?

2. Is the estimate of burden accurate?

3. Is there a way to enhance the

quality, utility, and clarity of the

information to be collected?

4. How can the burden of the

information collection be minimized,

including the use of automated

collection techniques?

Send comments on any aspect of this

proposed collection of information,

including suggestions for reducing the

burden, to the Information and Records

Management Branch (T–6 F33), U.S.

Nuclear Regulatory Commission,

Washington, DC 20555–0001, or by

Internet electronic mail at

BJS1@NRC.GOV; and to the Desk

Officer, Office of Information and

Regulatory Affairs, NEOB–10202,

(3150–0046, –0047), Office of

Management and Budget, Washington,

DC 20503. Comments to OMB on the

collections of information or on the

above issues should be submitted by

September 2, 1998. Comments received

after this date will be considered if it is

practical to do so, but assurance of

consideration cannot be given to

comments received after this date.

Public Protection Notification

If an information collection

requirement does not display a

currently valid OMB control number,

the NRC may not conduct or sponsor,

and a person is not required to respond

to, the information collection.

Regulatory Analysis

The Commission has prepared a

regulatory analysis for this proposed

regulation. The analysis examines the

costs and benefits of the alternatives

considered by the Commission. The

analysis is available for inspection in

the NRC Public Document Room, 2120

L Street, NW (Lower Level),

Washington, DC. Single copies of the

analysis may be obtained from Duane G.

Kidd, Division of Security, Office of

Administration, U. S. Nuclear

Regulatory Commission, Washington,

DC 20555, telephone: (301) 415–7403.

Regulatory Flexibility Certification

As required by the Regulatory

Flexibility Act of 1980, 5 U.S.C. 605(b),

the Commission certifies that this rule,

if adopted, will not have a significant

economic impact upon a substantial

number of small entities. The NRC

carefully considered the effect on small

entities in developing this proposed rule

on the protection of classified

information and have determined that

none of the facilities affected by this

rule would qualify as a small entity

under the NRC’s size standards (10 CFR

2.810).

Backfit Analysis

The NRC has determined that the

backfit rule, 10 CFR 50.109, applies to

this rulemaking initiative because it

falls within the criteria of 10 CFR

50.109(a)(1). However, a backfit analysis

is not required because this rulemaking

qualifies for exemption under 10 CFR

50.109(a)(4)(iii) that reads: ‘‘That the

regulatory action involves * * *

redefining what level of protection to

the * * * common defense and security

should be regarded as adequate.’’

List of Subjects

10 CFR Part 10

Administrative practice and

procedure, Classified information,

Criminal penalties, Investigations,

Security measures.

10 CFR Part 11

Hazardous materials—transportation,

Investigations, Nuclear Materials,

Reporting and recordkeeping

requirements, Security measures,

Special nuclear material.

10 CFR Part 25

Classified information, Criminal

penalties, Investigations, Reporting and

recordkeeping requirements, Security

measures.

10 CFR Part 95

Classified information, Criminal

penalties, Reporting and recordkeeping

requirements, Security measures.

For the reasons set out in the

preamble and under the authority of the

Atomic Energy Act of 1954, as amended;

the Energy Reorganization Act of 1974,

as amended; and 5 U.S.C. 553; the NRC

proposes to adopt the following
41208 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules

amendments to 10 CFR parts 10, 11, 25,

and 95.

PART 10—CRITERIA AND

PROCEDURES FOR DETERMINING

ELIGIBILITY FOR ACCESS TO

RESTRICTED DATA OR NATIONAL

SECURITY INFORMATION OR AN

EMPLOYMENT CLEARANCE

1. The authority citation for part 10 is

revised to read as follows:

Authority: Secs. 145, 161, 68 Stat. 942,

948, as amended (42 U.S.C. 2165, 2201); sec.

201, 88 Stat. 1242, as amended (42 U.S.C.

5841); E.O. 10450, 3 CFR Parts 1949–1953

COMP., p. 936, as amended; E.O. 10865, 3

CFR 1959–1963 COMP., p. 398, as amended;

3 CFR Table 4.; E.O. 12968, 3 CFR 1995

COMP., p. 396.

2. Section 10.1 is revised to read as

follows:

§ 10.1 Purpose.

(a) This part establishes the criteria,

procedures, and methods for resolving

questions concerning:

(1) The eligibility of individuals who

are employed by or applicants for

employment with NRC contractors,

agents, and licensees of the NRC,

individuals who are NRC employees or

applicants for NRC employment, and

other persons designated by the Deputy

Executive Director for Management

Services of the NRC, for access to

Restricted Data pursuant to the Atomic

Energy Act of 1954, as amended, and

the Energy Reorganization Act of 1974,

or for access to national security

information; and

(2) The eligibility of NRC employees,

or the eligibility of applicants for

employment with the NRC, for

employment clearance.

(b) This part is published to

implement the Atomic Energy Act of

11954, as amended, the Energy

Reorganization Act of 1974, as

amended, Executive Order 10865, 25 FR

1583 (February 24, 1960) Executive

Order 10450, 18 FR 2489 (April 27,

1954), and Executive Order 12968, 60

FR 40245 (August 2, 1995).

3. In § 10.2, paragraph (d) is revised

to read as follows:

§ 10.2 Scope.

* * * * *

(d) Any other person designated by

the Deputy Executive Director for

Management Services of the Nuclear

Regulatory Commission.

4. In § 10.5, the introductory text is

removed, the paragraph designations

preceding each of the defined terms are

removed, the definitions are rearranged

in alphabetical order, and the

definitions of Access Authorization,

Employment Clearance, National

Security Information, and NRC

Personnel Security Review Panel are

revised to read as follows:

§ 10.5 Definitions.

Access authorization means an

administrative determination that an

individual (including a consultant) who

is employed by or an applicant for

employment with the NRC, NRC

contractors, agents, and licensees of the

NRC, or other person designated by the

Deputy Executive Director for

Management Services, is eligible for a

security clearance for access to

Restricted Data or National Security

Information.

* * * * *

Employment Clearance means an

administrative determination that an

individual (including a consultant) who

is an NRC employee or applicant for

NRC employment and other persons

designated by the Deputy Executive

Director for Management Services of the

NRC is eligible for employment or

continued employment pursuant to

subsection 145(b). of the Atomic Energy

Act of 1954, as amended.

* * * * *

National Security Information means

information that is owned by, produced

for or by, or under the control of the

United States Government, and that has

been determined, pursuant to Executive

Order 12958 or antecedent orders, to

require protection against unauthorized

disclosure, and is so designated.

* * * * *

NRC Personnel Security Review Panel

means an appeal panel appointed by the

Deputy Executive Director for

Management Services and consisting of

three members, two of whom shall be

selected from outside the security field.

One member of the Panel shall be

designated as Chairman.

* * * * *

5. In § 10.10 the introductory text of

paragraph (d) is revised to read as

follows:

§ 10.10 Application of the criteria.

* * * * *

(d) In resolving a question concerning

the eligibility or continued eligibility of

an individual for access authorization

and/or employment clearance, the

following principles shall be applied by

the Director, Division of Facilities and

Security, Hearing Examiners, and the

NRC Personnel Security Review Panel:

* * * * *

6. In § 10.12, paragraphs (a) and (c)

are revised to read as follows:

§ 10.12 Interview and other investigation.

(a) The Director, Division of Facilities

and Security, Office of Administration,

may authorize the granting of access

authorization and/or employment

clearance on the basis of the information

in the possession of the NRC or may

authorize the conduct of an interview

with the individual, if the individual

consents to be interviewed, or such

other investigation as the Director

deems appropriate. On the basis of such

interview and/or investigation, the

Director may authorize the granting of

access authorization and/or

employment clearance.

* * * * *

(c) If the Director, Division of

Facilities and Security, cannot make a

favorable finding regarding the

eligibility of an individual for access

authorization and/or employment

clearance, the question of the

individual’s eligibility shall be resolved

in accordance with the procedures set

forth in § 10.20 et seq.

7. Section 10.20 is revised to read as

follows:

§ 10.20 Purpose of the procedures.

These procedures establish methods

for the conduct of hearings and

administrative review of questions

concerning an individual’s eligibility for

access authorization and/or

employment clearance pursuant to the

Atomic Energy Act of 1954, as amended,

and Executive Orders 10450, 10865, and

12968 when a resolution favorable to

the individual cannot be made on the

basis of the interview or other

investigation.

8. Section 10.21 is revised to read as

follows:

§ 10.21 Suspension of access

authorization and/or employment clearance.

In those cases where information is

received which raises a question

concerning the continued eligibility of

an individual for access authorization

and/or employment clearance, the

Director, Division of Facilities and

Security, through the Director, Office of

Administration, shall forward to the

Deputy Executive Director for

Management Services or other Deputy

Executive Director, his or her

recommendation as to whether the

individual’s access authorization and/or

employment clearance should be

suspended pending the final

determination resulting from the

operation of the procedures provided in

this part. In making this

recommendation the Director, Division

of Facilities and Security, shall consider

such factors as the seriousness of the

derogatory information developed, the

degree of access of the individual to

classified information, and the

individual’s opportunity by reason of
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules 41209

his or her position to commit acts

adversely affecting the national security.

An individual’s access authorization

and/or employment clearance may not

be suspended except by the direction of

the Deputy Executive Director for

Management Services or other Deputy

Executive Director.

9. Section 10.22 is revised to read as

follows:

§ 10.22 Notice to individual.

A notification letter, prepared by the

Division of Facilities and Security,

approved by the Office of General

Counsel, and signed by the Director,

Office of Administration, shall be

presented to each individual whose

eligibility for access authorization and/

or employment clearance is in question.

Where practicable, such letter shall be

presented to the individual in person.

The letter will be accompanied by a

copy of this part and shall state:

(a) That reliable information in the

possession of the NRC has created a

substantial doubt concerning the

individual’s eligibility for access

authorization and/or employment

clearance;

(b) That information that creates a

substantial doubt regarding the

individual’s eligibility for access

authorization and/or employment

clearance shall be as comprehensive and

detailed as the national security

interests and other applicable law

permit;

(c) That the individual has the right

to be represented by counsel or other

representative at their own expense;

(d) That the individual may request

within 20 days of the date of the

notification letter, any documents,

records and reports which form the

basis for the question of their eligibility

for access authorization and/or

employment clearance, to the extent the

documents would be provided if

requested under the Freedom of

Information or the Privacy Act; and to

request the entire investigative file, as

permitted by the national security and

other applicable law;

(e) That unless the individual files

with the Director, Office of

Administration, a written request for a

hearing within 20 days of the

individual’s receipt of the notification

letter or 20 days after receipt of the

information provided in response to a

request made under paragraph (d) of

this section, whichever is later, the

Director, Division of Facilities and

Security, through the Director, Office of

Administration, will submit a

recommendation as to the final action to

the Deputy Executive Director for

Management Services on the basis of the

information in the possession of the

NRC;

(f) That if the individual files a

written request for a hearing with the

Director, Office of Administration, the

individual must file with that request a

written answer under oath or

affirmation which admits or denies

specifically each allegation and each

supporting fact contained in the

notification letter. A general denial is

not sufficient to controvert a specific

allegation. If the individual is without

knowledge, he or she shall so state and

that statement shall operate as a denial.

The answer shall also state any

additional facts and information that the

individual desires to have considered in

explanation or mitigation of allegations

in the notification letter. Failure to

specifically deny or explain or deny

knowledge of any allegation or

supporting fact shall be deemed an

admission that the allegation or fact is

true.

(g) That if the individual does not

want to exercise his or her right to a

hearing, but does want to submit an

answer to the allegations in the

notification letter, the individual may

do so by filing with the Director, Office

of Administration, within 20 days of his

receipt of the notification letter or 20

days after receipt of the information

provided in response to a request made

under paragraph (d) of this section,

whichever is later, a written answer in

accordance with the requirements of

paragraph (f) of this section;

(h) That the procedures in § 10.24 et

seq. shall apply to any hearing and

review.

10. In § 10.23, paragraph (a) is revised

to read as follows:

§ 10.23 Failure of individual to request a

hearing.

(a) In the event the individual fails to

file a timely written request for a

hearing pursuant to § 10.22, a

recommendation as to the final action to

be taken shall be made by the Director,

Division of Facilities and Security,

through the Director, Office of

Administration, to the Deputy Executive

Director for Management Services on

the basis of the information in the

possession of the NRC, including any

answer filed by the individual.

* * * * *

11. In § 10.25, paragraphs (a) and (c)

are revised to read as follows:

§ 10.25 NRC Hearing Counsel.

(a) Hearing Counsel assigned pursuant

to § 10.24 shall, before the scheduling of

the hearing, review the information in

the case and shall request the presence

of witnesses and the production of

documents and other physical evidence

relied upon by the Director, Division of

Facilities and Security, in making his or

her finding that a question exists

regarding the eligibility of the

individual for NRC access authorization

and/or employment clearance in

accordance with the provisions of this

part. When the presence of a witness

and the production of documents and

other physical evidence is deemed by

the Hearing Counsel to be necessary or

desirable for a determination of the

issues, the Director, Division of

Facilities and Security, shall make

arrangements for the production of such

evidence and for such witnesses to

appear at the hearing by subpoena or

otherwise.

* * * * *

(c) The individual is responsible for

producing witnesses in his or her own

behalf and/or presenting other evidence

before the Hearing Examiner to support

the individual’s answers and defense to

the allegations contained in the

notification letter. When requested,

however, Hearing Counsel shall assist

the individual to the extent practicable

and necessary. The Hearing Counsel

may at his or her discretion request the

Director, Division of Facilities and

Security, to arrange for the issuance of

subpoenas for witnesses to attend the

hearing in the individual’s behalf, or for

the production of specific documents or

other physical evidence, provided a

showing of the necessity for such

assistance has been made.

12. In § 10.27 paragraph (c) is revised

to read as follows:

§ 10.27 Prehearing proceedings.

* * * * *

(c) The parties will be notified by the

Hearing Examiner at least ten days in

advance of the hearing of the time and

place of the hearing. For good cause

shown, the Hearing Examiner may order

postponements or continuances from

time to time. If, after due notice, the

individual fails to appear at the hearing,

or appears but is not prepared to

proceed, the Hearing Examiner shall,

unless good cause is shown, return the

case to the Director, Division of

Facilities and Security, who shall make

a recommendation on final action to be

taken, through the Director, Office of

Administration, to the Deputy Executive

Director for Management Services on

the basis of the information in the

possession of the NRC.

13. In § 10.28, paragraph (n) is revised

to read as follows:

§ 10.28 Conduct of hearing.

* * * * *
41210 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules

(n) A written transcript of the entire

proceeding shall be made by a person

possessing appropriate NRC access

authorization and/or employment

clearance and, except for portions

containing Restricted Data or National

Security Information, or other lawfully

withholdable information, a copy of

such transcript shall be furnished the

individual without cost. The transcript

or recording shall be made part of the

applicant’s or employee’s personnel

security file.

14. Section 10.31 is revised to read as

follows:

§ 10.31 Actions on the recommendations.

(a) Upon receipt of the findings and

recommendation from the Hearing

Examiner, and the record, the Director,

Office of Administration, shall forthwith

transmit it to the Deputy Executive

Director for Management Services who

at his or her discretion may return the

record to the Director, Office of

Administration, for further proceedings

by the Hearing Examiner with respect to

specific matters designated by the

Deputy Executive Director for

Management Services;

(b)(1) In the event of a

recommendation by the Hearing

Examiner that an individual’s access

authorization and/or employment

clearance be denied or revoked, the

Deputy Executive Director for

Management Services shall immediately

notify the individual in writing of the

Hearing Examiner’s findings with

respect to each allegation contained in

the notification letter, and that the

individual has a right to request a

review of his or her case by the NRC

Personnel Security Review Panel and of

the right to submit a brief in support of

his or her contentions. The request for

a review shall be submitted to the

Deputy Executive Director for

Management Services within five days

after the receipt of the notice. The brief

shall be forwarded to the Deputy

Executive Director of Management

Services, for transmission to the NRC

Personnel Security Review Panel not

later than 10 days after receipt of such

notice.

(2) In the event the individual fails to

request a review by the NRC Personnel

Security Review Panel of an adverse

recommendation within the prescribed

time, the Deputy Executive Director for

Management Services may at his or her

discretion request a review of the record

of the case by the NRC Personnel

Security Review Panel. The request

shall set forth those matters at issue in

the hearing on which the Deputy

Executive Director for Management

Services desires a review by the NRC

Personnel Security Review Panel.

(c) Where the Hearing Examiner has

made a recommendation favorable to

the individual, the Deputy Executive

Director for Management Services may

at his or her discretion request a review

of the record of the case by the NRC

Personnel Security Review Panel. If

such a request is made, the Deputy

Executive Director for Management

Services shall immediately cause the

individual to be notified of that fact and

of those matters at issue in the hearing

on which the Deputy Executive Director

for Management Services desires a

review by the NRC Personnel Security

Review Panel. The Deputy Executive

Director for Management Services shall

further inform the individual that

within 10 days of receipt of this notice,

the individual may submit a brief

concerning those matters at issue for the

consideration of the NRC Personnel

Security Review Panel. The brief shall

be forwarded to the Deputy Executive

Director for Management Services for

transmission to the NRC Personnel

Security Review Panel.

(d) In the event of a request for a

review pursuant to paragraphs (b) and

(c) of this section, the Hearing Counsel

may file a brief within 10 days of being

notified by the Deputy Executive

Director for Management Services that a

review has been requested. The brief

shall be forwarded to the Deputy

Executive Director for Management

Services for transmission to the NRC

Personnel Security Review Panel.

(e) The Hearing Counsel may also

request a review of the case by the NRC

Personnel Security Review Panel. The

request for review, which shall set forth

those matters at issue in the hearing on

which the Hearing Counsel desires a

review, shall be submitted to the Deputy

Director Executive for Management

Services within five days after receipt of

the Hearing Examiner’s findings and

recommendation. Within 10 days of the

request for review, the Hearing Counsel

may file a brief which shall be

forwarded to the Deputy Executive

Director for Management Services for

transmission to the NRC Personnel

Security Review Panel. A copy of the

request for review, and a copy of any

brief filed, shall be immediately sent to

the individual. If the Hearing Counsel’s

request is for a review of a

recommendation favorable to the

individual, the individual may, within

10 days of receipt of a copy of the

request for review, submit a brief

concerning those matters at issue for

consideration of the NRC Personnel

Security Review Panel. The brief shall

be forwarded to the Deputy Executive

Director for Management Services for

transmission to the NRC Personnel

Security Review Panel. A copy of the

brief shall be made a part of the

applicant’s personnel security file.

(f) The time limits imposed by this

section for requesting reviews and the

filing of briefs may be extended by the

Deputy Executive Director for

Management Services for good cause

shown.

(g) In the event a request is made for

a review of the record by the NRC

Personnel Security Review Panel, the

Deputy Executive Director for

Management Services shall forthwith

send the record, with all findings and

recommendations and any briefs filed

by the individual and the Hearing

Counsel, to the NRC Personnel Security

Review Panel. If neither the individual,

the Deputy Executive Director for

Management Services, nor the Hearing

Counsel requests such a review, the

final determination shall be made by the

Deputy Executive Director for

Management Services on the basis of the

record with all findings and

recommendations.

15. Section 10.32 is revised to read as

follows:

§ 10.32 Recommendation of the NRC

Personnel Security Review Panel.

(a) The Deputy Executive Director for

Management Services shall designate an

NRC Personnel Security Review Panel

to conduct a review of the record of the

case. The NRC Personnel Security

Review Panel shall be comprised of

three members, two of whom shall be

selected from outside the security field.

To qualify as an NRC Personnel Security

Review Panel member, the person

designated shall have an NRC ‘‘Q’’

access authorization and may be an

employee of the NRC, its contractors,

agents, or licensees. However, no

employee or consultant of the NRC shall

serve as an NRC Personnel Security

Review Panel member reviewing the

case of an employee (including a

consultant) or applicant for employment

with the NRC; nor shall any employee

or consultant of an NRC contractor,

agent or licensee serve as an NRC

Personnel Security Review Panel

member reviewing the case of an

employee (including a consultant) or an

applicant for employment of that

contractor, agent, or licensee. No NRC

Personnel Security Review Panel

member shall be selected who has

knowledge of the case or of any

information relevant to the disposition

of it, or who for any reason would be

unable to issue a fair and unbiased

recommendation.
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules 41211

(b) The NRC Personnel Security

Review Panel shall consider the matter

under review based upon the record

supplemented by any brief submitted by

the individual or the Hearing Counsel.

The NRC Personnel Security Review

Panel may request such additional briefs

as the Panel deems appropriate. When

the NRC Personnel Security Review

Panel determines that additional

evidence or further proceedings are

necessary, the record may be returned to

the Deputy Executive Director for

Management Services with a

recommendation that the case be

returned to the Director, Office of

Administration, for appropriate action,

which may include returning the case to

the Hearing Examiner and reconvening

the hearing to obtain additional

testimony. When additional testimony

is taken by the Hearing Examiner, a

written transcript of such testimony

shall be made a part of the record and

shall be taken by a person possessing

appropriate NRC access authorization

and/or employment clearance and,

except for portions containing

Restricted Data or National Security

Information, or other lawfully

withholdable information, a copy of

such transcript shall be furnished the

individual without cost.

(c) In conducting the review, the NRC

Personnel Security Review Panel shall

make its findings and recommendations

as to the eligibility or continued

eligibility of an individual for access

authorization and/or employment

clearance on the record supplemented

by additional testimony or briefs, as has

been previously determined by the NRC

Personnel Security Review Panel as

appropriate.

(d) The NRC Personnel Security

Review Panel shall not consider the

possible impact of the loss of the

individual’s services upon the NRC

program.

(e) If, after considering all the factors

in light of the criteria set forth in this

part, the NRC Personnel Security

Review Panel is of the opinion that

granting or continuing access

authorization and/or employment

clearance to the individual will not

endanger the common defense and

security and will be clearly consistent

with the national interest, the NRC

Personnel Security Review Panel shall

make a favorable recommendation;

otherwise, the NRC Personnel Security

Review Panel shall make an adverse

recommendation. The NRC Personnel

Security Review Panel shall prepare a

report of its findings and

recommendations and submit the report

in writing to the Deputy Executive

Director for Management Services, who

shall furnish a copy to the individual.

The findings and recommendations

shall be fully supported by stated

reasons supporting the findings and

recommendations.

16. Section 10.33 is revised to read as

follows:

§ 10.33 Action by the Deputy Executive

Director for Management Services.

(a) The Deputy Executive Director for

Management Services, on the basis of

the record accompanied by all findings

and recommendations, shall make a

final determination whether access

authorization and/or employment

clearance shall be granted, denied, or

revoked, except when the provisions of

§ 10.28(i), (j), or (l) have been used and

the Deputy Executive Director for

Management Services determination is

adverse, the Commission shall make the

final agency determination.

(b) In making the determination as to

whether access authorization and/or

employment clearance shall be granted,

denied, or revoked, the Deputy

Executive Director for Management

Services or the Commission shall give

due recognition to the favorable as well

as the unfavorable information

concerning the individual and shall take

into account the value of the

individual’s services to the NRC’s

program and the consequences of

denying or revoking access

authorization and/or employment

clearance.

(c) In the event of an adverse

determination, the Deputy Executive

Director for Management Services shall

promptly notify the individual through

the Director, Office of Administration,

of his or her decision that access

authorization and/or employment

clearance is being denied or revoked

and of his or her findings with respect

to each allegation contained in the

notification letter for transmittal to the

individual.

(d) In the event of a favorable

determination, the Deputy Executive

Director for Management Services shall

promptly notify the individual through

the Director, Office of Administration.

17. In § 10.34, paragraph (a) is revised

to read as follows:

§ 10.34 Action by the Commission.

(a) Whenever, under the provisions of

§ 10.28(i), (j), or (l) an individual has not

been afforded an opportunity to

confront and cross-examine witnesses

who have furnished information adverse

to the individual and an adverse

recommendation has been made by the

Deputy Executive Director for

Management Services, the Commission

shall review the record and determine

whether access authorization and/or

employment clearance shall be granted,

denied, or revoked, based upon the

record.

* * * * *

18. Section 10.35 is revised to read as

follows:

§ 10.35 Reconsideration of cases.

(a) Where, pursuant to the procedures

set forth in §§ 10.20 through 10.34, the

Deputy Executive Director for

Management Services or the

Commission has made a determination

granting access authorization and/or

employment clearance to an individual,

the individual’s eligibility for access

authorization and/or employment

clearance shall be reconsidered only

when subsequent to the time of that

determination, new derogatory

information has been received or the

scope or sensitivity of the Restricted

Data or National Security Information to

which the individual has or will have

access has significantly increased. All

new derogatory information, whether

resulting from the NRC’s reinvestigation

program or other sources, will be

evaluated relative to an individual’s

continued eligibility in accordance with

the procedures of this part.

(b) Where, pursuant to these

procedures, the Commission or Deputy

Executive Director for Management

Services has made a determination

denying or revoking access

authorization and/or employment

clearance to an individual, the

individual’s eligibility for access

authorization and/or employment

clearance may be reconsidered when

there is a bona fide offer of employment

and/or a bona fide need for access to

Restricted Data or national security

information and either material and

relevant new evidence is presented,

which the individual and his or her

representatives are without fault in

failing to present before, or there is

convincing evidence of reformation or

rehabilitation. Requests for

reconsideration shall be submitted in

writing to the Deputy Executive Director

for Management Services through the

Director, Office of Administration. Such

requests shall be accompanied by an

affidavit setting forth in detail the

information referred to above. The

Deputy Executive Director for

Management Services shall cause the

individual to be notified as to whether

his or her eligibility for access

authorization and/or employment

clearance will be reconsidered and if so,

the method by which such

reconsideration will be accomplished.

(c) Where access authorization and/or

employment clearance has been granted
41212 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules

to an individual by the Director,

Division of Facilities and Security,

without recourse to the procedures set

forth in §§ 10.20 through 10.34, the

individual’s eligibility for access

authorization and/or employment

clearance shall be reconsidered only in

a case where, subsequent to the granting

of the access authorization and/or

employment clearance, new derogatory

information has been received or the

scope or sensitivity of the Restricted

Data or National Security Information,

to which the individual has or will have

access, has significantly increased. All

new derogatory information, whether

resulting from the NRC’s reinvestigation

program or other sources, will be

evaluated relative to an individual’s

continued eligibility in accordance with

the procedures of this part.

PART 11—CRITERIA AND

PROCEDURES FOR DETERMINING

ELIGIBILITY FOR ACCESS TO OR

CONTROL OVER SPECIAL NUCLEAR

MATERIAL

19. The authority citation for part 11

continues to read as follows:

Authority: Sec. 161, 68 Stat. 948, as

amended (42 U.S.C. 2201); sec. 201, 88 Stat.

1242, as amended (42 U.S.C. 5841).

Section 11.15(e) also issued under sec. 501,

85 Stat. 290 (31 U.S.C. 483a).

20. In § 11.7 the paragraph

designations are removed, the

definitions are rearranged in

alphabetical order, and the definitions

of NRC—‘‘U’’ special nuclear material

access authorization and NRC—‘‘R’’

special nuclear material access

authorization are revised to read as

follows:

§ 11.7 Definitions.

* * * * *

NRC—‘‘U’’ special nuclear material

access authorization means an

administrative determination based

upon a single scope background

investigation, normally conducted by

the Office of Personnel Management,

that an individual in the course of

employment is eligible to work at a job

falling within the criteria of § 11.11(a)(1)

or § 11.13.

NRC—‘‘R’’ special nuclear material

access authorization means an

administrative determination based

upon a national agency check with law

and credit investigation that an

individual in the course of employment

is eligible to work at a job falling within

the criterion of § 11.11(a)(2).

* * * * *

21. Section 11.15 is revised to read as

follows:

§ 11.15 Application for special nuclear

material access authorization.

(a)(1) Application for special nuclear

material access authorization, renewal,

or change in level shall be filed by the

licensee on behalf of the applicant with

the Director, Division of Facilities and

Security, U.S. Nuclear Regulatory

Commission, Washington, DC 20555.

Applications for affected individuals

employed on October 28, 1985, shall be

submitted within 60 days of notification

of Commission approval of the amended

security plan.

(2) Licensees who wish to secure

NRC—U or NRC—R special nuclear

material access authorizations for

individuals in possession of an active

NRC Q or L access authorization or

other security clearance granted by

another Federal agency based on an

equivalent investigation shall submit a

‘‘Security Acknowledgment’’ (NRC

Form 176) and a ‘‘Request for Access

Authorization’’ (NRC Form 237). NRC

will process these requests by verifying

the data on an NRC cleared individual,

or by contacting the Federal agency

which granted the clearance, requesting

certification of the security clearance,

and determining the investigative basis

and level of the clearance. Licensees

may directly request the Federal agency

which administered the security

clearance, if other than NRC, to certify

to the NRC that it has on file an active

security clearance for an individual and

to specify the investigative basis and

level of the clearance.

(b) Applications for special nuclear

material access authorization for

individuals, other than those qualifying

under the provisions of § 11.15(a)(2),

must be made on forms supplied by the

Commission, including:

(1) Questionnaire for National

Security Positions (SF—86, Parts 1 and

2);

(2) Two completed standard

fingerprint cards (FD—258);

(3) Security Acknowledgment (NRC

Form 176);

(4) Other related forms where

specified in accompanying instruction

(NRC—254); and

(5) A statement by the employer,

prospective employer, or contractor

identifying the job to be assigned to or

assumed by the individual and the level

of authorization needed, justified by

appropriate reference to the licensee’s

security plan.

(c)(1) Except as provided in paragraph

(c)(2) of this section, NRC–U special

nuclear material access authorizations

must be renewed every five years from

the date of issuance. Except as provided

in paragraph (c)(3) of this section, NRC–

R special nuclear material access

authorizations must be renewed every

ten years from the date of issuance. An

application for renewal must be

submitted at least 120 days before the

expiration of the five year period for

NRC–U and ten year period for NRC–R,

respectively, and must include:

(i) A statement by the licensee that at

the time of application for renewal the

individual’s assigned or assumed job

requires an NRC–U or an NRC–R special

nuclear material access authorization,

justified by appropriate reference to the

licensee’s security plan;

(ii) The Questionnaire for National

Security Positions (SF–86, Parts 1 and

2);

(iii) Two completed standard

fingerprint cards (FD–258); and

(iv) Other related forms specified in

accompanying NRC instructions (NRC

Form 254).

(2) An exception to the time for

submission of NRC–U special nuclear

material access authorization renewal

applications and the paperwork

required is provided for those

individuals who have a current and

active DOE–Q access authorization and

who are subject to DOE Reinvestigation

Program requirements. For these

individuals, the submission to DOE of

the SF–86 pursuant to DOE

Reinvestigation Program requirements

(generally every five years) will satisfy

the NRC renewal submission and

paperwork requirements even if less

than five years has passed since the date

of issuance or renewal of the NRC–U

access authorization. Any NRC–U

special nuclear material access

authorization renewed in response to

provisions of this paragraph will not be

due for renewal until the date set by

DOE for the next reinvestigation of the

individual pursuant to DOE’s

Reinvestigation Program.

(3) An exception to the time for

submission of NRC–R special nuclear

material access authorization renewal

applications and the paperwork

required is provided for those

individuals who have a current and

active DOE–L or DOE–Q access

authorization and who are subject to

DOE Reinvestigation Program

requirements. For these individuals, the

submission to DOE of the SF–86

pursuant to DOE Reinvestigation

Program requirements will satisfy the

NRC renewal submission and

paperwork requirements even if less

than ten years have passed since the

date of issuance or renewal of the NRC–

R access authorization. Any NRC–R

special nuclear material access

authorization renewed pursuant to this

paragraph will not be due for renewal

until the date set by DOE for the next
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules 41213

1 If the NRC determines, based on its review of

available data, that a National Agency Check with

law and credit investigation is necessary, a fee of

$128 will be assessed prior to the conduct of the

investigation; however, if a single scope

investigation is deemed necessary by the NRC,

based on its review of available data, a fee of $3,275

will be assessed prior to the conduct of the

investigation.

2 If the NRC determines, based on its review of

available data, that a single scope investigation is

necessary, a fee of $3,275 will be assessed prior to

the conduct of the investigation.

3The functions of the Hearing Examiner and the

Personnel Security Review Panel are described in

part 10 of this chapter.

reinvestigation of the individual

pursuant to DOE’s Reinvestigation

Program.

(4) Notwithstanding the provisions of

paragraph (c)(2) of this section, the

period of time for the initial and each

subsequent NRC–U renewal application

to NRC may not exceed seven years.

(5) Notwithstanding the provisions of

paragraph (c)(3) of this section, the

period of time for the initial and each

subsequent NRC–R renewal application

to NRC may not exceed twelve years.

Any individual who is subject to the

DOE Reinvestigation Program

requirements but, for administrative or

other reasons, does not submit

reinvestigation forms to DOE within

seven years of the previous submission,

for a NRC–U renewal or twelve years of

the previous submission for a NRC–R

renewal, shall submit a renewal

application to NRC using the forms

prescribed in paragraph (c)(1) of this

section before the expiration of the

seven year period for NRC–U or twelve

year period for NRC–R renewal.

(d) If at any time, due to new

assignment or assumption of duties, a

change in special nuclear material

access authorization level from NRC

‘‘R’’ to ‘‘U’’ is required, the individual

shall apply for a change of level of

special nuclear material access

authorization. The application must

include a description of the new duties

to be assigned or assumed, justified by

appropriate reference to the licensee’s

security plan.

(e)(1) Each application for special

nuclear material access authorization,

renewal, or change in level must be

accompanied by the licensee’s

remittance, payable to the U.S. Nuclear

Regulatory Commission, according to

the following schedule:

i. NRC–R..................................................1 $128

ii. NRC–R (expedited processing) ..........1 $200

iii. NRC–R based on certification of

comparable investigation .....................2 $0

iv. NRC–R renewal..................................1 $128

v. NRC–U requiring single scope

investigation .....................................$3275

vi. NRC–U requiring single scope

investigation (expedited

processing)........................................$3800

vii. NRC–U based on certification of

comparable investigation .....................2 $0

viii. NRC–U renewal.............................2 $1720

(2) Material access authorization fees

will be published each time the Office

of Personnel Management notifies NRC

of a change in the background

investigation rate it charges NRC for

conducting the investigation. Any such

changed access authorization fees will

be applicable to each access

authorization request received upon or

after the date of publication.

Applications from individuals having

current Federal access authorizations

may be processed expeditiously at no

cost, since the Commission may accept

the certification of access authorizations

and investigative data from other

Federal government agencies which

grant personnel access authorizations.

(f)(1) Any Federal employee,

employee of a contractor of a Federal

agency, licensee, or other person

visiting an affected facility for the

purpose of conducting official business,

who possesses an active NRC or DOE–

Q access authorization or an equivalent

Federal security clearance granted by

another Federal agency (‘‘Top Secret’’)

based on a comparable single scope

background investigation may be

permitted, in accordance with § 11.11,

the same level of unescorted access that

an NRC–U special nuclear material

access authorization would afford.

(2) Any Federal employee, employee

of a contractor of a Federal agency,

licensee, or other person visiting an

affected facility for the purpose of

conducting official business, who

possesses an active NRC or DOE–L

access authorization or an equivalent

security clearance granted by another

Federal agency (‘‘Secret’’) based on a

comparable or greater background

investigation consisting of a national

agency check with law and credit may

be permitted, in accordance with

§ 11.11, the same level of unescorted

access that an NRC–R special nuclear

material access authorization would

afford. An NRC or DOE–L access

authorization or an equivalent security

clearance (‘‘Secret’’), based on a

background investigation or national

agency check with credit, which was

granted or being processed by another

Federal agency before January 1, 1998,

is acceptable to meet this requirement.

22. Section 11.16 is revised to read as

follows:

§ 11.16 Cancellation of request for special

nuclear material access authorization.

When a request for an individual’s

access authorization is withdrawn or

canceled, the licensee shall notify the

Chief, Personnel Security Branch, NRC

Division of Facilities and Security

immediately, by telephone, so that the

investigation may be discontinued. The

caller shall provide the full name and

date of birth of the individual, the date

of request, and the type of access

authorization originally requested (‘‘U’’

or ‘‘R’’). The licensee shall promptly

submit written confirmation of the

telephone notification to the Personnel

Security Branch, NRC Division of

Facilities and Security. A portion of the

fee for the ‘‘U’’ special nuclear material

access authorization may be refunded

depending upon the status of the single

scope investigation at the time of

withdrawal or cancellation.

23. In § 11.21, paragraphs (c) and (d)

are revised to read as follows:

§ 11.21 Application of the criteria.

* * * * *

(c) When the reports of investigation

of an individual contain information

reasonably falling within one or more of

the classes of derogatory information

listed in § 10.11, it shall create a

question as to the individual’s eligibility

for special nuclear material access

authorization. In such cases, the

application of the criteria shall be made

in light of and with specific regard to

whether the existence of such

information supports a reasonable belief

that the granting of a special nuclear

material access authorization would be

inimical to the common defense and

security. The Director, Division of

Facilities and Security, may authorize

the granting of special nuclear material

access authorization on the basis of the

information in the case or may authorize

the conduct of an interview with the

individual and, on the basis of such

interview and such other investigation

as the Director deems appropriate, may

authorize the granting of special nuclear

material access authorization.

Otherwise, a question concerning the

eligibility of an individual for special

nuclear material access authorization

shall be resolved in accordance with the

procedures set forth in §§ 10.20 through

10.38 of this chapter.

(d) In resolving a question concerning

the eligibility or continued eligibility of

an individual for special nuclear

material access authorization by action

of the Hearing Examiner or a Personnel

Security Review Panel,3 the following

principle shall be applied by the

Examiner and the Personnel Security

Review Panel: Where there are grounds

sufficient to establish a reasonable belief

as to the truth of the information

regarded as substantially derogatory and

when the existence of such information
41214 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules

supports a reasonable belief that

granting access would be inimical to the

common defense and security, this shall

be the basis for a recommendation for

denying or revoking special nuclear

material access authorization if not

satisfactorily rebutted by the individual

or shown to be mitigated by

circumstance.

PART 25—ACCESS AUTHORIZATION

FOR LICENSEE PERSONNEL

24. The authority citation for part 25

continues to read as follows:

Authority: Secs. 145, 161, 68 Stat. 942,

948, as amended (42 U.S.C. 2165, 2201); sec.

201, 88 Stat. 1242, as amended (42 U.S.C.

5841); E.O. 10865, as amended, 3 CFR 1959–

1963 Comp., p. 398 (50 U.S.C. 401, note);

E.O. 12829, 3 CFR, 1993 Comp. p. 570; E.O.

12958, 3 CFR, 1995 Comp., p. 333; E.O.

12968, 3 CFR, 1995 Comp., p. 396.

Appendix A also issued under 96 Stat.

1051 (31 U.S.C. 9701).

25. In § 25.5 the definitions of ‘‘L’’

access authorization, National Security

Information and ‘‘Q’’ access

authorization are revised to read as

follows:

§ 25.5 Definitions.

* * * * *

‘‘L’’ access authorization means an

access authorization granted by the

Commission which is normally based

on a national agency check with law

and credit investigation (NACLC) or an

access national agency check and

inquiries investigation (ANACI))

conducted by the Office of Personnel

Management.

* * * * *

National Security Information means

information that has been determined

pursuant to Executive Order 12958 or

any predecessor order to require

protection against unauthorized

disclosure and that is so designated.

* * * * *

‘‘Q’’ access authorization means an

access authorization granted by the

Commission normally based on a single

scope background investigation

conducted by the Office of Personnel

Management, the Federal Bureau of

Investigation, or other U.S. Government

agency which conducts personnel

security investigations.

* * * * *

26. Section 25.9 is revised to read as

follows:

§ 25.9 Communications.

Except where otherwise specified, all

communications and reports concerning

the regulations in this part should be

addressed to the Director, Division of

Facilities and Security, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555.

27. Section 25.15 is revised to read as

follows:

§ 25.15 Access permitted under ‘‘Q’’ or

‘‘L’’ or equivalent CSA access

authorization.

(a) A ‘‘Q’’ or CSA equivalent access

authorization permits an individual

access on a need-to-know basis to Secret

Restricted Data related to nuclear

weapons design, manufacturing and

vulnerability information; and certain

particularly sensitive Naval Nuclear

Propulsion Program information (e.g.,

fuel manufacturing technology) as well

as Secret and Confidential National

Security Information including

intelligence information, CRYPTO (i.e.,

cryptographic information) or other

classified communications security

(COMSEC) information.

(b) An ‘‘L’’ access authorization

permits an individual access on a needto-know basis to Secret and Confidential

classified information other than the

categories specifically included in

paragraph (a) of this section. In

addition, access to certain Confidential

COMSEC information is permitted as

authorized by a National

Communications Security Committee

waiver dated February 14, 1985.

(c) Each employee of the Commission

is processed for one of the two levels of

access authorization. Licensees and

other persons will furnish classified

information to a Commission or CSA

employee on official business when the

employee has the appropriate level of

access authorization and need-to-know.

Some individuals are permitted to begin

NRC employment without an access

authorization. However, no NRC or CSA

employee is permitted access to any

classified information until the

appropriate level of access authorization

has been granted to that employee by

NRC or the CSA.

28. Section 25.19 is revised to read as

follows:

§ 25.19 Processing applications.

Each application for access

authorization or access authorization

renewal must be submitted to the CSA.

If the NRC is the CSA, the application

and its accompanying fee must be

submitted to the NRC Division of

Facilities and Security. If necessary, the

NRC Division of Facilities and Security

may obtain approval from the

appropriate Commission office

exercising licensing or regulatory

authority before processing the access

authorization or access authorization

renewal request. If the applicant is

disapproved for processing, the NRC

Division of Facilities and Security shall

notify the submitter in writing and

return the original application (security

packet) and its accompanying fee.

29. In § 25.21, paragraph (c) is revised

to read as follows:

§ 25.21 Determination of initial and

continued eligibility for access

authorization.

* * * * *

(c)(1) Except as provided in paragraph

(c)(2) of this section, NRC ‘‘Q’’ access

authorization must be renewed every

five years from the date of issuance.

Except as provided in paragraph (c)(2)

of this section, NRC ‘‘L’’ access

authorization must be renewed every

ten years from the date of issuance. An

application for renewal must be

submitted at least 120 days before the

expiration of the five-year period for

‘‘Q’’ access authorization and ten-year

period for ‘‘L’’ access authorization, and

must include:

(i) A statement by the licensee or

other person that the individual

continues to require access to classified

National Security Information or

Restricted Data; and

(ii) A personnel security packet as

described in § 25.17(d).

(2) Renewal applications and the

required paperwork are not required for

individuals who have a current and

active access authorization from another

Federal agency and who are subject to

a reinvestigation program by that agency

that is determined by the NRC to meet

the NRC’s requirements. (The DOE

Reinvestigation Program has been

determined to meet the NRC’s

requirements.) For these individuals,

the submission of the SF–86 by the

licensee or other person to the other

government agency pursuant to their

reinvestigation requirements will satisfy

the NRC renewal submission and

paperwork requirements, even if less

than five years has passed since the date

of issuance or renewal of the NRC ‘‘Q’’

access authorization or 10 years have

passed since the date of issuance or

renewal of the NRC ‘‘L’’ access

authorization. Any NRC access

authorization continued in response to

the provisions of this paragraph will,

thereafter, not be due for renewal until

the date set by the other Government

agency for the next reinvestigation of

the individual pursuant to the other

agency’s reinvestigation program.

However, the period of time for the

initial and each subsequent NRC ‘‘Q’’

renewal application to the NRC may not

exceed seven years or, in the case of

NRC ‘‘L’’ renewal application, twelve

years. Any individual who is subject to

the reinvestigation program
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules 41215

requirements of another Federal agency

but, for administrative or other reasons,

does not submit reinvestigation forms to

that agency within seven years for ‘‘Q’’

renewal or twelve years for ‘‘L’’ renewal

of the previous submission, shall submit

a renewal application to the NRC using

the forms prescribed in § 25.17(d) before

the expiration of the seven-year period.

(3) If the NRC is not the CSA,

reinvestigation program procedures and

requirements will be set by the CSA.

30. In § 25.23, paragraph (a) is revised

to read as follows:

§ 25.23 Notification of grant of access

authorization.

* * * * *

(a) In those cases in which the

determination was made as a result of

a Personnel Security Hearing or by a

Personnel Security Review Panel ; or

* * * * *

31. Section 25.25 is revised to read as

follows:

§ 25.25 Cancellation of requests for

access authorization.

When a request for an individual’s

access authorization or renewal of

access authorization is withdrawn or

canceled, the requestor shall notify the

CSA immediately by telephone so that

the single scope background

investigation, national agency check

with law and credit investigation, or

other personnel security action may be

discontinued. The requestor shall

identify the full name and date of birth

of the individual, the date of request,

and the type of access authorization or

access authorization renewal requested.

The requestor shall confirm each

telephone notification promptly in

writing.

32. In § 25.27, paragraph (b) is revised

to read as follows:

§ 25.27 Reopening of cases in which

requests for access authorizations are

canceled.

* * * * *

(b) Additionally, if 90 days or more

have elapsed since the date of the last

Questionnaire for National Security

Positions (SF–86), or CSA equivalent,

the individual must complete a

personnel security packet (see

§ 25.17(d)). The CSA, based on

investigative or other needs, may

require a complete personnel security

packet in other cases as well. A fee,

equal to the amount paid for an initial

request, will be charged only if a new

or updating investigation by the NRC is

required.

33. In § 25.31, paragraphs (a), (b), and

(c) are revised to read as follows:

§ 25.31 Extensions and transfers of access

authorizations.

(a) The NRC Division of Facilities and

Security may, on request, extend the

authorization of an individual who

possesses an access authorization in

connection with a particular employer

or activity, to permit access to classified

information in connection with an

assignment with another employer or

activity.

(b) The NRC Division of Facilities and

Security may, on request, transfer an

access authorization when an

individual’s access authorization under

one employer or activity is terminated,

simultaneously with the individual

being granted access authorization for

another employer or activity.

(c) Requests for extension or transfer

of access authorization must state the

full name of the person, his date of birth

and level of access authorization. The

Director, Division of Facilities and

Security, may require a new personnel

security packet (see § 25.17(c)) to be

completed by the applicant. A fee, equal

to the amount paid for an initial request,

will be charged only if a new or

updating investigation by the NRC is

required.

* * * * *

34. In § 25.33, paragraphs (a) and (b)

are revised to read as follows:

§ 25.33 Termination of access

authorizations.

(a) Access authorizations will be

terminated when:

(1) Access authorization is no longer

required;

(2) An individual is separated from

the employment or the activity for

which he or she obtained an access

authorization for a period of 90 days or

more; or

(3) An individual, pursuant to 10 CFR

part 10 or other CSA-approved

adjudicatory standards, is no longer

eligible for access authorization.

(b) A representative of the licensee or

other organization that employs the

individual whose access authorization

will be terminated shall immediately

notify the CSA when the circumstances

noted in paragraph (a)(1) or (a)(2) of this

section exist; inform the individual that

his or her access authorization is being

terminated, and the reason; and that he

or she will be considered for

reinstatement of access authorization if

he or she resumes work requiring it.

* * * * *

35. In § 25.35, paragraph (b) is revised

to read as follows:

§ 25.35 Classified visits.

* * * * *

(b) Representatives of the Federal

Government, when acting in their

official capacities as inspectors,

investigators, or auditors, may visit a

licensee, certificate holder, or other’s

facility without furnishing advanced

notification, provided these

representatives present appropriate

Government credentials upon arrival.

Normally, however, Federal

representatives will provide advance

notification in the form of an NRC Form

277, ‘‘Request for Visit or Access

Approval,’’ with the ‘‘need-to-know’’

certified by the appropriate NRC office

exercising licensing or regulatory

authority and verification of NRC access

authorization by the Division of

Facilities and Security.

* * * * *

36. In § 25.37, paragraph (b) is revised

to read as follows:

§ 25.37 Violations.

* * * * *

(b) National Security Information is

protected under the requirements and

sanctions of Executive Order 12958.

37. Appendix A to part 25 is revised

to read as follows:

APPENDIX A TO PART 25—FEES FOR

NRC ACCESS AUTHORIZATION

Category Fee

(dollars)

Initial ‘‘L’’ access authorization 1 128

Initial ‘‘L’’ access authorization

(expedited processing) .......... 1 200

Reinstatement of ‘‘L’’ access

authorization .......................... 2 128

Extension or Transfer of ‘‘L’’ access authorization ................. 2 128

Renewal of ‘‘L’’ access authorization .................................... 1 128

Initial ‘‘Q’’ access authorization 3275

Initial ‘‘Q’’ access authorization

(expedited processing) .......... 3800

Reinstatement of ‘‘Q’’ access

authorization .......................... 2 3275

Reinstatement of ‘‘Q’’ access

authorization (expedited processing) ................................... 2 3800

Extension or Transfer of ‘‘Q’ ..... 2 3275

Extension or Transfer of ‘‘Q’’

(expedited processing) .......... 2 3800

Renewal of ‘‘Q’’ access authorization .................................... 2 1720

1 If the NRC determines, based on its review

of available data, that a single scope investigation is necessary, a fee of $3275 will be

assessed before the conduct of the investigation. 2Full fee will only be charged if an investigation is required.

38. The heading of part 95 is revised

to read as follows:
41216 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules

PART 95—FACILITY SECURITY

CLEARANCE AND SAFEGUARDING

OF NATIONAL SECURITY

INFORMATION AND RESTRICTED

DATA

39. The authority citation for part 95

continues to read as follows:

Authority: Secs. 145, 161, 193, 68 Stat.

942, 948, as amended (42 U.S.C. 2165, 2201);

sec. 201, 88 Stat. 1242, as amended (42

U.S.C. 5841); E.O. 10865, as amended, 3 CFR

1959–1963 Comp., p. 398 (50 U.S.C. 401,

note); E.O. 12829, 3 CFR 1993 Comp., p. 570;

E.O. 12958, as amended, 3 CFR 1995 Comp.,

p. 333; E.O. 12968, 3 CFR 1995 Comp., p.

391.

* * * * *

40. In § 95.5 the definitions of NRC

‘‘L’’ access authorization, NRC ‘‘Q’’

access authorization and security

container are revised to read as follows:

§ 95.5 Definitions.

* * * * *

NRC ‘‘L’’ access authorization means

an access authorization granted by the

Commission which is normally based

on a national agency check with law

and credit investigation (NACLC) or an

access national agency check and

inquiries investigation (ANACI))

conducted by the Office of Personnel

Management.

NRC ‘‘Q’’ access authorization means

an access authorization granted by the

Commission normally based on a single

scope background investigation

conducted by the Office of Personnel

Management, the Federal Bureau of

Investigation, or other U.S. Government

agency which conducts personnel

security investigations.

* * * * *

Security container includes any of the

following repositories:

(1) A security filing cabinet—one that

bears a Test Certification Label on the

side of the locking drawer, inside wall

adjacent to the locking drawer, or

interior door plate, and is marked,

General Services Administration

Approved Security Container on the

exterior of the top drawer or door.

(2) A safe—burglar-resistive cabinet or

chest which bears a label of the

Underwriters’ Laboratories, Inc.

certifying the unit to be a TL–15, TL–

30, or TRTL–30, and has a body

fabricated of not less than 1 inch steel

and a door fabricated of not less than

11⁄2 inches steel exclusive of the

combination lock and bolt work; or

bears a Test Certification Label on the

inside of the door and is marked

General Services Administration

Approved Security Container and has a

body of steel at least 1⁄2 ′′thick, and a

combination locked steel door at least

1′′ thick, exclusive of bolt work and

locking devices, and an automatic unit

locking mechanism.

(3) A vault—a windowless enclosure

constructed with walls, floor, roof and

door(s) that will delay penetration

sufficient to enable the arrival of

emergency response forces capable of

preventing theft, diversion, damage or

compromise of classified information or

matter, when delay time is assessed in

conjunction with detection and

communication subsystems of the

physical protection system.

(4) A vault-type room—a room which

has a combination lock door and is

protected by an intrusion alarm system

which alarms upon the unauthorized

penetration of a person anywhere into

the room.

(5) Other repositories which in the

judgment of the Division of Facilities

and Security would provide comparable

physical protection.

* * * * *

41. Section 95.9 is revised to read as

follows:

§ 95.9 Communications.

Except where otherwise specified, all

communications and reports concerning

the regulations in this part should be

addressed to the Director, Division of

Facilities and Security, Nuclear

Regulatory Commission, Washington,

DC 20555.

42. In § 95.15, paragraph (a) is revised

to read as follows:

§ 95.15 Approval for processing licensees

and others for facility clearance.

(a) A licensee, certificate holder, or

other person who has a need to use,

process, store, reproduce, transmit,

transport, or handle NRC classified

information at any location in

connection with Commission related

activities shall promptly request an NRC

facility clearance. This specifically

includes situations where a licensee,

certificate holder, or other person needs

a contractor or consultant to have access

to NRC classified information, or others

who require access to classified

information in connection with NRC

regulated activities, but do not require

use, storage, or possession of classified

information outside of NRC facilities.

However, it is not necessary for a

licensee, certificate holder, or other

person to request an NRC facility

clearance for access to another agency’s

classified information at that agency’s

facilities or to store that agency’s

classified information at their facility,

provided no NRC classified information

is involved and they meet the security

requirements of the other agency. If NRC

classified information is involved, the

requirements of § 95.17 apply.

* * * * *

43. In § 95.17, the introductory text of

paragraph (a) and paragraph (a)(1) are

revised to read as follows:

§ 95.17 Processing facility clearance.

(a) Following the receipt of an

acceptable request for facility clearance,

the NRC will either accept an existing

facility clearance granted by a current

CSA and authorize possession of license

or certificate related classified

information or process the facility for a

facility clearance. Processing will

include—

(1) A determination based on review

and approval of a Standard Practice

Procedure Plan that granting of the

Facility Clearance would not be

inconsistent with the national interest,

including a finding that the facility is

not under foreign ownership, control, or

influence to such a degree that a

determination could not be made. An

NRC finding of foreign ownership,

control, or influence is based on factors

concerning the foreign intelligence

threat, risk of unauthorized technology

transfer, type and sensitivity of the

information that requires protection, the

extent of foreign influence, record of

compliance with pertinent laws, and the

nature of international security and

information exchange agreements. The

licensee, certificate holder, or other

person is required to advise NRC within

30 days of any significant events or

changes that may affect its status

concerning foreign ownership, control,

or influence.

* * * * *

44. Section 95.19 is revised to read as

follows:

§ 95.19 Changes to security practices and

procedures.

(a) Except as specified in paragraph

(b) of this section, each licensee,

certificate holder or other person shall

obtain prior CSA approval for any

proposed change to the name, location,

security procedures and controls, or

floor plan of the approved facility. A

written description of the proposed

change must be furnished to the CSA

with copies to the Director, Division of

Facilities and Security, Office of

Administration, NRC, Washington, DC

20555–0001 (if NRC is not the CSA),

and the NRC Regional Administrator of

the cognizant Regional Office listed in

appendix A of part 73. These

substantive changes to the Standard

Practice Procedures Plan that affect the

security of the facility must be

submitted to NRC Division of Facilities

and Security, or CSA, at least 30 days
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules 41217

prior to the change so that it may be

evaluated. The CSA shall promptly

respond in writing to all such proposals.

Some examples of substantive changes

requiring prior CSA approval include—

(1) A change in the approved facility’s

classified mail address; or

(2) A temporary or permanent change

in the location of the approved facility

(e.g., moving or relocating NRC’s

classified interest from one room or

building to another). Approved changes

will be reflected in a revised Security

Practices and Procedures Plan

submission within 30 days of approval.

Page changes rather than a complete

rewrite of the plan may be submitted.

(b) A licensee or other person may

effect a minor, non-substantive change

to an approved Standard Practice

Procedures Plan for the safeguarding of

classified information without receiving

prior CSA approval. These minor

changes that do not affect the security

of the facility may be submitted to the

addressees noted in paragraph (a) of this

section within 30 days of the change.

Page changes rather than a complete

rewrite of the plan may be submitted.

Some examples of minor, nonsubstantive changes to the Standard

Practice Procedures Plan include—

(1) The designation/appointment of a

new facility security officer; or

(2) A revision to protective personnel

patrol routine, provided the new routine

continues to meet the minimum

requirements of this part.

(c) A licensee, certificate holder, or

other person must update its NRC

facility clearance by submitting a

complete Standard Practice Procedures

Plan to the Division of Facilities and

Security at least every 5 years.

45. Section 95.20 is revised to read as

follows:

§ 95.20 Grant, denial or termination of

facility clearance.

The Division of Facilities and

Security shall provide notification in

writing (or orally with written

confirmation) to the licensee or other

organization of the Commission’s grant,

acceptance of another agency’s facility

clearance, denial, or termination of

facility clearance. This information

must also be furnished to

representatives of the NRC, NRC

licensees, NRC certificate holders, NRC

contractors, or other Federal agencies

having a need to transmit classified

information to the licensee or other

person.

46. Section 95.21 is revised to read as

follows:

§ 95.21 Withdrawal of requests for facility

security clearance.

When a request for facility clearance

is to be withdrawn or canceled, the

requester shall notify the NRC Division

of Facilities and Security in the most

expeditious manner so that processing

for this approval may be terminated.

The notification must identify the full

name of the individual requesting

discontinuance, his position with the

facility, and the full identification of the

facility. The requestor shall confirm the

telephone notification promptly in

writing.

* * * * *

47. In § 95.25, the introductory text of

paragraph (a), paragraphs (a)(2), (b),

(c)(2), (f), (g), (h), (i), (j)(1), (j)(6), and

(j)(7) are revised to read as follows:

§ 95.25 Protection of National Security

Information and Restricted Data in storage.

(a) Secret matter, while unattended or

not in actual use, must be stored in—

* * * * *

(2) Any steel file cabinet that has four

sides and a top and bottom (all

permanently attached by welding,

rivets, or peened bolts so the contents

cannot be removed without leaving

visible evidence of entry) and is secured

by a rigid metal lock bar and an

approved key operated or combination

padlock. The keepers of the rigid metal

lock bar must be secured to the cabinet

by welding, rivets, or bolts, so they

cannot be removed and replaced

without leaving evidence of the entry.

The drawers of the container must be

held securely so their contents cannot

be removed without forcing open the

drawer. This type cabinet will be

accorded supplemental protection

during non-working hours.

(b) Confidential matter while

unattended or not in use must be stored

in the same manner as SECRET matter

except that no supplemental protection

is required.

(c) * * *

(2) Combinations must be changed by

a person authorized access to the

contents of the container, or by the

Facility Security Officer or his or her

designee.

* * * * *

(f) Combinations shall be changed

only by persons authorized access to

Secret or Confidential National Security

Information and/or Restricted Data

depending upon the matter authorized

to be stored in the security container.

(g) Posted information. Containers

may not bear external markings

indicating the level of classified matter

authorized for storage. A record of the

names of persons having knowledge of

the combination must be posted inside

the container.

(h) End of day security checks.

(1) Facilities that store classified

matter shall establish a system of

security checks at the close of each

working day to ensure that all classified

matter and security repositories have

been appropriately secured.

(2) Facilities operating with multiple

work shifts shall perform the security

checks at the end of the last working

shift in which classified matter had

been removed from storage for use. The

checks are not required during

continuous 24-hour operations.

(i) Unattended security container

found opened. If an unattended security

container housing classified matter is

found unlocked, the custodian or an

alternate must be notified immediately.

The container must be secured by

protective personnel and the contents

inventoried as soon as possible but not

later than the next workday. A report

reflecting all actions taken must be

submitted to the responsible Regional

Office (see 10 CFR part 73, Appendix A,

for addresses) with an information copy

to the NRC Division of Facilities and

Security within 30 days after the event.

The licensee shall retain records

pertaining to these matters for 3 years

after completion of final corrective

action.

(j) * * *

(1) A key and lock custodian shall be

appointed to ensure proper custody and

handling of keys and locks used for

protection of classified matter;

* * * * *

(6) Keys and spare locks must be

protected equivalent to the level of

classified matter involved;

(7) Locks must be changed or rotated

at least every 12 months, and must be

replaced after loss or compromise of

their operable keys; and

* * * * *

48. Section 95.27 is revised to read as

follows:

§ 95.27 Protection while in use.

While in use, classified matter must

be under the direct control of an

authorized individual to preclude

physical, audio, and visual access by

persons who do not have the prescribed

access authorization or other written

CSA disclosure authorization (see

§ 95.36 for additional information

concerning disclosure authorizations).

49. In § 95.29, paragraphs (a), (c)(2),

and (c)(4) are revised to read as follows:

§ 95.29 Establishment of restricted or

closed areas.

(a) If, because of its nature, sensitivity

or importance, classified matter cannot
41218 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules

otherwise be effectively controlled in

accordance with the provisions of

§§ 95.25 and 95.27, a Restricted or

Closed area must be established to

protect such matter.

* * * * *

(c) * * *

(2) Access must be limited to

authorized persons who have an

appropriate security clearance and a

need-to-know for the classified matter

within the area. Persons without the

appropriate level of clearance and/or

need-to-know must be escorted at all

times by an authorized person where

inadvertent or unauthorized exposure to

classified information cannot otherwise

be effectively prevented.

* * * * *

(4) Open shelf or bin storage of

classified matter in Closed Areas

requires CSA approval. Only areas

protected by an approved intrusion

detection system will qualify for

approval.

50. In § 95.33, paragraph (f) is revised

to read as follows:

§ 95.33 Security education.

* * * * *

(f) Refresher Briefings. The licensee or

other facility shall conduct refresher

briefings for all cleared employees every

3 years. As a minimum, the refresher

briefing must reinforce the information

provided during the initial briefing and

inform employees of appropriate

changes in security regulations. This

requirement may be satisfied by use of

audio/video materials and by issuing

written materials.

* * * * *

51. A new § 95.34 is added to read as

follows:

§ 95.34 Control of visitors.

(a) Uncleared visitors. Licensees,

certificate holders, or others subject to

this part shall take measures to preclude

access to classified information by

uncleared visitors.

(b) Foreign visitors. Licensees,

certificate holders, or others subject to

this part shall take measures as may be

necessary to preclude access to

classified information by foreign

visitors.

(1) The names, dates of birth, and

organizational affiliation and status

(e.g., resident aliens, dual citizenship) of

foreign visitors shall be provided to the

Division of Facilities and Security 60

days in advance of the visit. Unless an

objection to the visit is received from

the NRC Division of Facilities and

Security within the 60 day period, the

visit may proceed as scheduled.

(2) The licensee, certificate holder, or

others shall retain records of visits for

5 years beyond the date of the visit.

52. Section 95.35 is revised to read as

follows:

§ 95.35 Access to National Security

Information and Restricted Data.

(a) Unless authorized by the

Commission, a person subject to the

regulations in this part may not receive

or permit any individual to have access

to Secret or Confidential National

Security Information or Restricted Data

unless the individual has one of the

following access authorizations:

(1) A U.S. Government granted access

authorization based on a Single Scope

Background Investigation and issued by

the CSA which permits an individual

access to—

(i) Secret Restricted Data related to

nuclear weapons design, manufacturing

and vulnerability information; and

certain particularly sensitive Naval

Nuclear Propulsion Program

information (e.g., fuel manufacturing

technology) and Confidential Restricted

Data; and

(ii) Secret and Confidential National

Security Information which includes

intelligence information, CRYPTO (i.e.,

cryptographic information) or other

classified communications security

(COMSEC) information.

(2) A U.S. Government granted access

authorization based on a National

Agency Check with Law and Credit

investigation (NACLC) and issued by

the CSA which permits an individual

access to Secret and Confidential

Restricted Data and Secret and

Confidential National Security

Information other than that noted in

paragraph (a)(1)(i) of this section.

(3) Access to certain Confidential

COMSEC information is permitted as

authorized by a National

Communications Security Committee

waiver dated February 14, 1984.

(4) An established ‘‘need-to-know’’ for

the information. (See Definitions,

§ 95.5).

(5) CSA approved storage facilities if

classified documents or material are to

be transmitted to the individual.

(b) Classified information must not be

released by a licensee or other person to

any personnel other than properly

access authorized Commission licensee

employees, or other individuals

authorized access by the Commission.

(c) Access to classified national

security information at NRC-licensed

facilities by authorized representatives

of IAEA is permitted in accordance with

§ 95.36 of this part.

53. In § 95.36, paragraphs (a), (c), and

(d) are revised to read as follows:

§ 95.36 Access by representatives of the

International Atomic Energy Agency or by

participants in other international

agreements.

(a) Based upon written disclosure

authorization from the NRC Division of

Facilities and Security that an

individual is an authorized

representative of the International

Atomic Energy Agency (IAEA) or other

international organization and that the

individual is authorized to make visits

or inspections in accordance with an

established agreement with the United

States Government, a licensee,

certificate holder or other person subject

to this part shall permit the individual

(upon presentation of the credentials

specified in § 75.7 of this chapter and

any other credentials identified in the

disclosure authorization) to have access

to matter which is classified National

Security Information that is relevant to

the conduct of a visit or inspection. A

disclosure authorization under this

section does not authorize a licensee,

certificate holder, or other person

subject to this part to provide access to

Restricted Data.

* * * * *

(c) In accordance with the specific

disclosure authorization provided by

the Division of Facilities and Security,

licensees, or other persons subject to

this part are authorized to release (i.e.,

transfer possession of) copies of

documents which contain classified

National Security Information directly

to IAEA inspectors and other

representatives officially designated to

request and receive classified National

Security Information documents. These

documents must be marked specifically

for release to IAEA or other

international organizations in

accordance with instructions contained

in the NRC’s disclosure authorization

letter. Licensees and other persons

subject to this part may also forward

these documents through the NRC to the

international organization’s

headquarters in accordance with the

NRC disclosure authorization. Licensees

and other persons may not reproduce

documents containing classified

National Security Information except as

provided in § 95.43.

(d) Records regarding these visits and

inspections must be maintained for 5

years beyond the date of the visit or

inspection. These records must

specifically identify each document

which has been released to an

authorized representative and indicate

the date of the release. These records

must also identify (in such detail as the

Division of Facilities and Security, by

letter, may require) the categories of

documents that the authorized
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 / Proposed Rules 41219

representative has had access and the

date of this access. A licensee or other

person subject to this part shall also

retain Division of Facilities and Security

disclosure authorizations for 5 years

beyond the date of any visit or

inspection when access to classified

information was permitted.

* * * * *

54. In § 95.37, paragraph (c)(1)(iv) is

removed and paragraphs (c)(1)(i) and

(h)(2) are revised to read as follows:

§ 95.37 Classification and preparation of

documents.

* * * * *

(c) * * *

(1) * * *

(i) Derivative classifications of

classified National Security Information

must contain the identity of the source

document or the classification guide,

including the agency and office of

origin, on the ‘‘Derived From’’ line and

its classification date. If more than one

source is cited, the ‘‘Derived From’’ line

should indicate ‘‘Multiple Sources.’’

The derivative classifier shall maintain

the identification of each source with

the file or record copy of the

derivatively classified document.

* * * * *

(h) * * *

(2) In the event of a question

regarding classification review, the

holder of the information or the

authorized classifier shall consult the

NRC Division of Facilities and Security,

Information Security Branch, for

assistance.

* * * * *

55. In § 95.39, the heading, paragraphs

(b)(3) and (c)(2) are revised to read as

follows:

§ 95.39 External transmission of classified

matter.

* * * * *

(b) * * *

(3) The outer envelope or wrapper

must contain the addressee’s classified

mailing address. The outer envelope or

wrapper may not contain any

classification, additional marking or

other notation that indicate that the

enclosed document contains classified

information. The Classified Mailing

Address shall be uniquely designated

for the receipt of classified information.

The classified shipping address for the

receipt of material (e.g., equipment)

should be different from the classified

mailing address for the receipt of

classified documents.

* * * * *

(c) * * *

(2) Confidential matter may be

transported by one of the methods set

forth in paragraph (c)(1) of this section,

by U.S. express or certified mail.

Express or certified mail may be used in

transmission of Confidential documents

to Puerto Rico or any United States

territory or possession.

* * * * *

56. In § 95.45, paragraph (a) is revised

to read as follows:

§ 95.45 Changes in classification.

(a) Documents containing classified

National Security Information must be

downgraded or declassified as

authorized by the NRC classification

guides or as determined by the NRC.

Requests for downgrading or

declassifying any NRC classified

information should be forwarded to the

NRC Division of Facilities and Security,

Office of Administration, Washington,

DC 20555–0001. Requests for

downgrading or declassifying of

Restricted Data will be forwarded to the

NRC Division of Facilities and Security

for coordination with the Department of

Energy.

* * * * *

57. Section 95.47 is revised to read as

follows:

§ 95.47 Destruction of matter containing

classified information.

Documents containing classified

information may be destroyed by

burning, pulping, or another method

that ensures complete destruction of the

information that they contain. The

method of destruction must preclude

recognition or reconstruction of the

classified information. Any doubts on

methods should be referred to the CSA.

58. Section 95.53 is revised to read as

follows:

§ 95.53 Termination of facility clearance.

(a) If the need to use, process, store,

reproduce, transmit, transport, or

handle classified matter no longer

exists, the facility clearance will be

terminated. The facility may deliver all

documents and matter containing

classified information to the

Commission or to a person authorized to

receive them or destroy all such

documents and matter. In either case,

the facility shall submit a certification of

nonpossession of classified information

to the NRC Division of Facilities and

Security within 30 days of termination

of facility clearance.

(b) In any instance where facility

clearance has been terminated based on

a determination of the CSA that further

possession of classified matter by the

facility would not be in the interest of

the national security, the facility shall,

upon notice from the CSA, dispose of

classified documents in a manner

specified by the CSA.

59. Section 95.57 is revised to read as

follows:

§ 95.57 Reports.

Each licensee or other person having

a facility clearance shall report to the

CSA and the Regional Administrator of

the appropriate NRC Regional Office

listed in 10 CFR part 73, Appendix A,

(a) Any alleged or suspected violation

of the Atomic Energy Act, Espionage

Act, or other Federal statutes related to

classified information. Incidents such as

this must be reported within 1 hour of

the event followed by written

confirmation;

(b) Any infractions, losses,

compromises or possible compromise of

classified information or classified

documents not falling within paragraph

(a) of this section. Incidents such as

these must be reported via written

notification within 30 days of the

incident. The report shall include

details of the incident including

corrective action taken;

(c) In addition, NRC requires records

for all classification actions (documents

classified, declassified, or downgraded)

to be submitted to the NRC Division of

Facilities and Security. These may be

submitted on an as completed basis or

every 30 days. The information may be

submitted either electronically by an online system (NRC prefers the use of a

dial-in automated system connected to

the Division of Facilities and Security)

or by paper copy using NRC Form 790.

Dated at Rockville, Maryland, this 16th day

of July, 1998.

For the Nuclear Regulatory Commission.

L. Joseph Callan,

Executive Director for Operations.

[FR Doc. 98–20602 Filed 7–31–98; 8:45 am]

BILLING CODE 7590–01–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 315 and 601

[Docket No. 98N–0040]

Regulations for In Vivo

Radiopharmaceuticals Used for

Diagnosis and Monitoring; Extension

of Comment Period

AGENCY: Food and Drug Administration,

HHS.

ACTION: Proposed rule; extension of

comment period.

SUMMARY: The Food and Drug

Administration (FDA) is extending to