[Federal Register: October 31, 2006 (Volume 71, Number 210)]
[Proposed Rules]
[Page 64003-64068]
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Part IV
Nuclear Regulatory Commission
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10 CFR Parts 2, 30, et al.
Protection of Safeguards Information; Proposed Rule
[[Page 64004]]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76, and 150
RIN: 3150-AH57
Protection of Safeguards Information
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations for the protection of Safeguards Information (SGI) to
protect SGI from inadvertent release and unauthorized disclosure which
might compromise the security of nuclear facilities and materials. The
amendments would affect certain licensees, information, and materials
not currently subject to SGI regulations, but which are within the
scope of Commission authority under the Atomic Energy Act of 1954, as
amended (AEA). The NRC originally published a proposed rule on SGI on
February 11, 2005 (70 FR 7196). The NRC is again publishing the
proposed rule on SGI protection requirements in order to allow the
public to comment on changes to the proposed rule text in response to
public comment and to reflect amendments to the AEA in the Energy
Policy Act of 2005 (EPAct) and Commission Orders issued to licensees
authorized to possess and transfer items containing certain quantities
of radioactive material.
DATES: The comment period expires January 2, 2007. Submit comments
specific to information collection aspects of this rule January 2,
2007. Comments received after that date will be considered if it is
practical to do so, but the NRC is able to ensure consideration only
for comments received on or before this date.
ADDRESSES: You may submit comments by any one of the following methods.
Please include the following number (RIN 3150-AH57) in the subject line
of your comments. Comments on this rulemaking submitted in writing or
in electronic form will be made available for public inspection.
Because your comments will not be edited to remove identifying
information, the NRC cautions against including personal information
such as social security numbers and birth dates in your submission.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, Attn: Rulemaking and Adjudications Staff.
E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-
mail confirming that we have received your comments, contact us
directly at (301) 415-1966. You may also submit comments via the NRC's
rulemaking Web site at http://ruleforum.llnl.gov. Address questions
about our rulemaking Web site to Carol Gallagher at (301) 415-5905; e-
mail: cag@nrc.gov. Comments can also be submitted via the Federal
Rulemaking Portal http://www.regulations.gov.
Hand deliver comments to 11555 Rockville Pike, Rockville, Maryland,
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone:
(301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
(301) 415-1101. Publicly available documents related to this rulemaking
may be examined and copied for a fee at the NRC's Public Document Room
(PDR), Public File Area 01F21, One White Flint North, 11555 Rockville
Pike, Rockville, Maryland. Selected documents, including comments, can
be reviewed and downloaded electronically via the NRC rulemaking Web
site at http://ruleforum.llnl.gov.
You may submit comments on the information collections by the
methods indicated in the Paperwork Reduction Act Statement.
Publicly available documents created or received at the NRC after
November 1, 1999, are available electronically at the NRC's Electronic
Reading Room at http://www.nrc.gov/ NRC/ADAMS/index.html. From this
site, the public can gain entry into the NRC's Agencywide Document
Access and Management System (ADAMS), which provides text and image
files of NRC's public documents. If you do not have access to ADAMS or
if there are problems in accessing the documents located in ADAMS,
contact the NRC's PDR Reference staff at 1-800-397-4209, 301-415-4737
or by e-mail to pdr@nrc.gov.
FOR FURTHER INFORMATION CONTACT: Marjorie Rothschild, Senior Attorney,
Office of the General Counsel, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-1633, e-mail MUR@nrc.gov
or Bernard Stapleton, Office of Nuclear Security and Incident Response,
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301) 415-2432, e-mail BWS2@nrc.gov.
Supplementary Information:
I. Background
II. Need for Rule
III. Purpose of Rulemaking
IV. Discussion
A. Overview of Public Comments on the Original Proposed Rule
B. Comments and Issues
1. Comments in Response to Specific Request for Comments
2. General Issues
3. Section-Specific Comments
C. Section-by-Section Analysis
D. Request for Specific Comment
V. Criminal Penalties
VI. Agreement State Issues
VII. Voluntary Consensus Standards
VIII. Finding of No Significant Impact: Environmental Assessment
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis
I. Background
The NRC first published proposed amendments to its rules in parts
2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76, 150 governing the
handling of Safeguards Information and creating a new category of
protected material, Safeguards Information-Modified Handling on
February 11, 2005 (70 FR 7196). Subsequently, Congress passed the
Energy Policy Act of 2005 (EPAct), Pub. L. No. 109-58, 119 Stat. 594.
Section 652 of the EPAct amended section 149 of the Atomic Energy Act
(AEA) to require fingerprinting, for criminal history check purposes,
of a broader class of persons. With regard to access to SGI before the
EPAct, the NRC's fingerprinting authority was limited to requiring
licensees and applicants for a license to operate a nuclear power
reactor under 10 CFR part 50 to fingerprint individuals prior to
granting access to SGI. The EPAct expanded the NRC's authority to
require fingerprinting of only individuals with access to SGI. Under
the EPAct, NRC has the authority to require that the following
individuals conduct fingerprinting before granting access to SGI: (1)
Individuals licensed or certified to engage in an activity subject to
regulation by the Commission; (2) individuals who have filed an
application for a license or certificate to engage in Commission-
regulated activities; and (3) have notified the Commission in writing
of an intent to file an application for licensing, certification,
permitting, or approval of a product or activity subject to regulation
by the Commission. Previously, section 149 of the AEA only required
fingerprinting and criminal history records checks of individuals
seeking access to SGI (as defined in Sec. 73.2) from a power reactor
licensee or license applicant.
The EPAct preserved the Commission's authority in section 149 to
relieve by rule certain persons from the fingerprinting,
identification, and
[[Page 64005]]
criminal history records checks. The Commission recently exercised that
authority to relieve by rule certain categories of persons from those
requirements including Federal, State, and local officials involved in
security planning and incident response, Agreement State employees who
evaluate licensee compliance with security-related orders, members of
Congress who request SGI as part of their oversight function, and
certain foreign representatives. These exemptions are based on the
Commission's findings that (1) interrupting those individuals' access
to SGI to perform fingerprinting and criminal history checks would harm
vital inspection, oversight, planning, and enforcement functions, (2)
it would impair communications among the NRC, its licensees, and first
responders in the event of an imminent security threat or other
emergency, and (3) it could strain the Commission's cooperative
relationships with its international counterparts, and might delay
needed exchanges of information to the detriment of current security
initiatives both at home and abroad. The final rule was published in
the Federal Register on June 13, 2006 (71 FR 33,989). That final rule
was necessary to avoid disruption of the Commission's information
sharing activities during the interim period while the Commission
completes the overall revision of the regulations in this rulemaking.
We have revised the original proposed rule to reflect the new
requirements under the EPAct, and the final rule cited above, and we
are again seeking public comment before promulgating a final SGI rule.
We have also made revisions to reflect public comments on the original
proposed rule, recent Commission direction, and Orders issued to
licensees authorized to possess and transfer items containing certain
quantities of radioactive material.
The Commission requests that comments on this revised proposed rule
focus on the changes and additions to the original proposed rule and
not on areas discussed in previous comments. Because the public has
already had opportunity to comment on much of the material contained in
this revised proposed rule, the Commission has determined that a 60-day
comment period is appropriate, and requests for extension of the
commenting period will not be granted.
SGI is a special category of sensitive unclassified information to
be protected from unauthorized disclosure under Section 147 of the AEA.
Although SGI is considered to be sensitive unclassified information, it
is handled and protected more like Classified National Security
Information than like other sensitive unclassified information (e.g.,
privacy and proprietary information). Part 73, ``Physical Protection of
Plants and Materials,'' of the NRC's regulations in Title 10 of the
Code of Federal Regulations (CFR) contains requirements for the
protection of SGI. Commission orders issued since September 11, 2001,
have also imposed requirements for the designation and protection of
SGI. These requirements apply to SGI in the hands of any person,
whether or not a licensee of the Commission, who produces, receives, or
acquires SGI. An individual's access to SGI requires both a valid
``need to know'' the information and authorization based on an
appropriate background investigation. Power reactors, certain research
and test reactors, and independent spent fuel storage installations are
examples of the categories of licensees currently subject to the
provisions of 10 CFR part 73 for the protection of SGI. Examples of the
types of information designated as SGI include the physical security
plan for a licensee's facility, the design features of a licensee's
physical protection system, and operational procedures for the
licensee's security organization.
The Commission has authority under Section 147 of the AEA to
designate, by regulation or order, other types of information as SGI.
For example, Section 147a.(2) allows the Commission to designate as SGI
a licensee's or applicant's detailed security measures (including
security plans, procedures and equipment) for the physical protection
of source material or byproduct material in quantities determined by
the Commission to be significant to the public health and safety or the
common defense and security. The AEA explicitly provides in Section
147a. that ``any person, whether or not a licensee of the Commission,
who violates any regulations adopted under this section shall be
subject to the civil monetary penalties of Section 234 of this Act.''
Furthermore, willful violation of any regulation or order governing SGI
is a felony subject to criminal penalties in the form of fines or
imprisonment, or both, as prescribed in Section 223 of the AEA.
The Commission has, by order, imposed SGI handling requirements on
certain categories of these licensees. An example is the November 25,
2003 Order issued to certain materials licensees.\1\ Violations of SGI
handling and protection requirements, whether those specified in part
73 or those imposed by order, are subject to civil and criminal
sanctions. Licensee employees, past or present, and all other persons
who have had access to SGI have a continuing obligation to protect SGI
in order to prevent inadvertent release and unauthorized disclosure.
Information designated as SGI must be withheld from public disclosure
and must be physically controlled and protected. Protection
requirements include: (1) Secure storage; (2) document marking; (3)
restriction of access; (4) limited reproduction; (5) protected
transmission; (6) controls for information processing on electronic
systems; and (7) destruction of SGI. The AEA explicitly provides in
Section 147a. that ``any person, whether or not a licensee of the
Commission, who violates any regulations adopted under this section
shall be subject to the civil monetary penalties of Section 234 of this
Act.'' Furthermore, willful violation of any regulation or order
governing SGI is a felony subject to criminal penalties in the form of
fines or imprisonment, or both, as prescribed in Section 223 of the
AEA.
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\1\ This Order was published in the Federal Register as
``Licensees Authorized to Manufacture or Initially Transfer Items
Containing Radioactive Material for Sale or Distribution and Who
Possess Certain Radioactive Material of Concern and all Persons Who
Obtain Safeguards Information Described Herein; Order Issued on
November 25, 2003, Imposing Requirements for the Protection of
Certain Safeguards Information (Effective Immediately),'' (69 FR
3397; Jan. 23, 2004).
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II. Need for Rule
Changes in the threat environment have revealed the need to protect
as SGI additional types of security information held by a broader group
of licensees. The current regulations do not specify all of the types
of information that could be designated as SGI and are now recognized
to be significant to the public health and safety or the common defense
and security. The unauthorized release of this information could result
in harm to the public health and safety and the Nation's common defense
and security, as well as damage to the Nation's critical
infrastructure, including nuclear power plants and other facilities and
materials licensed and regulated by the NRC or Agreement States.
Since September 11, 2001, the NRC has issued orders that have
increased the number of licensees whose security measures will be
protected as SGI and added types of security information considered to
be SGI. Orders have been issued to power reactor licensees, fuel cycle
facility licensees, certain source material licensees, and certain
byproduct material licensees. Some of
[[Page 64006]]
the orders expanded the types of information to be protected by
licensees who already have an SGI protection program, such as nuclear
power reactor licensees. Other orders were issued to licensees that
have not previously been subject to SGI protection requirements in the
regulations, such as certain licensees authorized to manufacture or
initially transfer items containing radioactive material.\2\ Some
orders imposed a new designation detailing modified handling
requirements for certain SGI: Safeguards Information-Modified Handling
(SGI-M). The more precise term is ``Safeguards Information-designated
as Safeguards Information-Modified Handling'' to distinguish between
``type of information''--SGI, and the two sets of handling requirements
``SGI'' and ``SGI-M''. We are not seeking to create another type of
information separate from SGI, and in fact SGI-M is SGI.
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\2\1\ See Order (69 FR 3397; January 23, 2004).
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SGI-M refers to SGI with handling requirements that are modified
somewhat due to the lower risk posed by unauthorized disclosure of the
information. The SGI-M protection requirements apply to certain
security-related information regarding quantities of source, byproduct,
and special nuclear materials for which the harm caused by unauthorized
disclosure of information would be less than that for SGI.
Some of the requirements imposed by orders that have increased the
types of information to be considered SGI are not covered by the
current regulations. Although the Commission has the authority to
impose new SGI requirements through the issuance of orders, the
regulations would not reflect current Commission SGI policy and/or
requirements. Consequently, the NRC has opted to amend its regulations.
III. Purpose of Rulemaking
NRC staff review of the SGI regulatory program indicates that
changes in the regulations are needed to address issues such as access
to SGI, types of security information to be protected, and handling and
storage requirements.
This rulemaking will:
(1) Revise the definition of ``need to know'' in 10 CFR 73.2;
(2) Implement expanded fingerprinting and criminal history check
procedures for broader categories of individuals who will have access
to SGI unless exempt from those requirements;
(3) Implement a requirement for background checks which form the
basis for demonstrating trustworthiness and reliability for individuals
who will have access to SGI unless exempt from those requirements. As
discussed in detail later, background checks are comprised of several
elements, which would now include a criminal history check;
(4) Modify part 73 to reflect the Commission's recent experience
and actions, including addressing requirements contained in Orders
issued following the terrorist attacks of September 11, 2001;
(5) Expand the scope of part 73 to include additional categories of
licensees (e.g., source and byproduct material licensees, research and
test reactors not previously covered, and fuel cycle facilities not
previously covered);
(6) Expand the types of security information covered by the
definition of SGI in Sec. 73.2 and the information categories
described in Sec. Sec. 73.22 and 73.23 to include detailed security
measures for the physical protection of byproduct, source, and special
nuclear material; security-related scenarios and implementing
procedures; uncorrected vulnerabilities or weaknesses in a security
system; and certain training and qualification information; and
(7) Clarify requirements for obtaining access to SGI in the context
of adjudications and clarify the appeal procedures available.
(8) Modify the original proposed rule to align it with the final
rule in 10 CFR 73.59 granting relief from the identification and
criminal history records check element (including fingerprinting) of
background checks for designated categories of individuals.
(9) Modify 10 CFR 73.59 to make it consistent with the language and
structure of the proposed SGI rule.
A graded approach based on the risks and consequences of
information disclosure would be used in determining which category of
licensee or type of information would be subject to certain protection
requirements. This graded approach can be applied to issues such as the
type of information to be protected, the classes of licensees subject
to the rule, and the level of handling requirements necessary for the
various licensees. For example, the graded approach would allow certain
licensees to employ the modified-handling procedures introduced in
recent orders and now set forth in the provisions of this revised
proposed rule.
The requirements set forth in this revised proposed rule are the
minimum restrictions the Commission finds necessary to protect SGI
against inadvertent release or unauthorized disclosure which might
compromise the health and safety of the public or the common defense
and security. The revised proposed rule would cover those facilities
and materials the Commission has already determined need to be
protected against theft or sabotage. The categories of information
constituting SGI relate to the types of facilities and the quantities
of special nuclear material, source material and byproduct material
determined by the Commission to be significant and therefore subject to
protection against unauthorized disclosure pursuant to Section 147 of
the AEA. Unauthorized release of SGI could reduce the deterrence value
of systems and measures used to protect nuclear facilities and
materials and allow for the possible compromise of those facilities and
materials. Such disclosures could also facilitate advance planning by
an adversary intent on committing acts of theft or sabotage against the
facilities and materials within the scope of the revised proposed rule.
Further, the Commission has determined, pursuant to Section 147a.(3)(B)
of the AEA, that the unauthorized disclosure of the information that is
the subject of this revised proposed rule could reasonably be expected
to have a significant adverse effect on the health and safety of the
public or the common defense and security by significantly increasing
the likelihood of theft, diversion, or sabotage of nuclear material or
a production or utilization facility. The Commission has distinguished
SGI designated as SGI-M, needing modified protection, from SGI for
reactors and fuel cycle facilities that require a higher level of
protection.
IV. Discussion
A. Overview of Public Comments on the Original Proposed Rule
On February 11, 2005, (70 FR 7196), the Commission published a
proposed rule and requested public comments by March 28, 2005. Twenty-
five comment letters were received, in addition to 622 letters from
members of the public that were substantively identical. Copies of
those letters are available for public inspection and copying for a fee
at the NRC Public Document Room, 11555 Rockville Pike, Rockville,
Maryland, or on the NRC's Agencywide Document Access and Management
System, available online at: http://www.nrc.gov/reading-rm/adams/web-based.html
.
Two comment letters were from trade unions, four were from public
interest or government watchdog groups, one was from a journalist
group, three were from members of the public, one was from a State
government agency, two were from the U.S. Department of
[[Page 64007]]
Energy, one was from a law firm that represents nuclear utilities, and
eleven were from utilities or nuclear industry groups. The comment
letters provided various points of view and suggestions for
clarifications, additions, deletions, and changes. Responses to the
comments, including those in the 622 letters from the public, are set
forth below.
B. Comments and Issues
1. Comments In Response to Specific Request for Comments
In the February 2005 proposed rule, the NRC solicited specific
public comment on the issue associated with differing requirements for
access to SGI and SGI-M. The original proposed rule Sec. Sec.
73.22(b)(1) and 73.23(b)(1) contained different requirements for
performing background checks and making trustworthiness and reliability
determinations for granting personnel access to SGI or SGI-M. These
proposed requirements were based on the then-existing statutory
authorization in Section 149 of the AEA for the NRC to require nuclear
power reactor applicants or licensees to fingerprint individuals to be
granted access to SGI. Before enactment of the EPAct on August 8, 2005,
there was no similar statutory authorization to require fingerprinting
by other applicants or licensees. Section 652 of the EPAct, however,
amended Section 149 of the AEA to authorize the NRC to require
fingerprinting of individuals granted access to SGI by all: (1)
Individuals and entities engaged in activities subject to regulation by
the Commission; (2) applicants for a license or certificate to engage
in Commission-regulated activities; and (3) individuals and entities
who have notified the Commission in writing of an intent to file an
application for licensing, certification, permitting, or approval of a
product or activity subject to regulations by the Commission.
The NRC published the original proposed rule six months before the
Energy Policy was enacted, specifically inviting comment on whether
stakeholders perceived difficulties in complying with the varying
requirements of SGI and SGI-M. The Commission has considered
stakeholders' suggestions, comments, and proposals regarding the issue
of whether a more uniform approach can be provided for background
checks and trustworthiness and reliability determinations. Although
comments may not have explicitly referred to this request for specific
comment, many comments addressed the issue of performing background
checks and the criteria for determining trustworthiness and reliability
for access to SGI and SGI-M. These comments and detailed responses are
set forth below. Commission views are also presented.
One commenter expressed concern that the criteria to judge
``trustworthiness and reliability'' could be applied arbitrarily to
restrict access to information by persons deemed to have interests
opposing the NRC or nuclear industry. Commenters also questioned how a
``comprehensive background check'' would be conducted and what ``the
other means'' for determining ``trustworthiness and reliability'' would
be. Other commenters noted that the definition of ``trustworthiness and
reliability'' does not clearly address how its requirements will be
uniformly applied for all classes of individuals (for example, an
individual who is not a utility employee such as an attorney for a
utility or intervenor in an NRC adjudicatory proceeding), and whether
there is a need for continued monitoring. Another commenter requested
that the NRC address when background checks are required for persons
requiring infrequent access to SGI or SGI-M such as commercial vendors
periodically supplying security equipment and needed services to
facilities. Some commenters requested greater detail on the criteria
the NRC will use to determine access to SGI-M and that such criteria
should allow for greater access to SGI-M because it poses ``a lower
security risk.''
In response to these comments, the Commission notes that the
purpose of the criteria to determine ``trustworthiness and
reliability'' for access to SGI is to provide reasonable assurance to
the person granting access and to the Commission that granting an
individual access to SGI does not constitute an unreasonable risk to
the public health and safety or the common defense and security.
Applying the criteria to improperly restrict access to SGI on the basis
of an individual's support or opposition to the nuclear industry is not
consistent with the regulatory framework the Commission has established
for granting access to SGI.
The changes to the original proposed rule text reflect Commission
efforts to more thoroughly address the criteria for determining access
to SGI. For example, the revised proposed rule defines the term
``background check'' and provides greater specificity in the definition
of the term ``trustworthiness and reliability.'' The revised proposed
rule provides procedural protections to individuals seeking access to
SGI in the context of adjudication both before and after an adverse
determination of trustworthiness and reliability by the NRC Office of
Administration. Before an adverse determination of trustworthiness and
reliability is made, individuals would be entitled to use the
procedures set forth in Sec. 73.57. In the context of NRC
adjudications, individuals receiving an adverse determination on their
background check for trustworthiness and reliability would be able to
appeal that adverse determination to the presiding officer of the
proceeding in which the SGI is sought. Potential witnesses,
participants without attorneys, and attorneys would be able to request
that the Chairman of the Atomic Safety and Licensing Board Panel
designate an officer other than the presiding officer of the proceeding
to review the determination. Moreover, in the revised proposed rule,
the Commission has standardized the criteria for access to SGI to
implement amendments to Section 149 of the AEA contained in Section 652
of the EPAct. The revised proposed rule would require a Federal Bureau
of Investigation criminal history check as part of the background check
used to determine whether an individual is trustworthy and reliable
before obtaining access to SGI, unless the Commission has otherwise
provided. This requirement would extend to participants in NRC
adjudicatory proceedings.
The frequency with which access to SGI is needed is not a factor
for determining access to SGI or SGI-M based on the governing
provisions of the AEA or the Commission's regulatory framework
implementing those provisions. Establishing an individual's need-to-
know the information and trustworthiness and reliability is necessary
whether an individual needs a one-time access to SGI or SGI-M or access
multiple times. A trustworthiness and reliability determination based
on a background check must be made except for individuals enumerated in
Sec. 73.59 including contractors of an applicant or licensee. The
Commission has determined that access to SGI and Safeguards Information
designated as SGI-M by licensee employees, agents, vendors, or
contractors must include both an appropriate need-to-know finding by
the licensee and a finding concerning the trustworthiness and
reliability of individuals having access to the information. Although a
separate need-to-know determination will be required for each specific
request for access to SGI, the requirement for a determination of
trustworthiness and
[[Page 64008]]
reliability based on a background check could be considered satisfied
within a certain period of time, 5 years for example. The same interval
would apply to criminal history records checks (including
fingerprinting), which are an element of a background check to
determine trustworthiness and reliability.
A commenter also questioned why the Commission would institute
requirements applicable to SGI-M and suggested that the ``less risk-
associated information'' be ``Official Use Only'' while some of the
more sensitive information be ``Classified National Security
Information.'' The Commission has distinguished SGI designated as SGI-
M, needing a lower level of protection. Information meeting the
definition of SGI in Section 147 of the AEA is being protected as such
rather than under the designations proposed by this commenter because
such information should be protected as SGI does not constitute
Classified National Security Information.
2. General Issues
Comment: Some commenters stated that the proposed regulations go
beyond the ``minimum restrictions'' needed to protect the health and
safety of the public or the common defense and security, as required by
Section 147 of the AEA. Rather than applying this provision, the
Commission has expanded the SGI category to include virtually anything
it wants to withhold. Therefore, the original proposed rule should be
withdrawn or drastically revised.
Response: The Commission recognizes there are limits to its
discretion under Section 147 of the AEA in determining what information
presents security concerns significant enough to warrant protection as
SGI. The revised proposed rule does not expand the Commission's
discretion beyond statutory limits--the revised proposed rule describes
the information the Commission considers SGI and is within the scope of
the authority granted by Section 147 of the AEA.
Section 147 of the AEA authorizes the Commission to protect
information that specifically identifies the control and accounting
procedures or security measures, including plans, procedures, and
equipment used to protect source, byproduct, and special nuclear
material. The categories of information to be protected under the rule
fall well within this scope. Sections 73.22(a)(1) and 73.23(a)(1) would
protect information associated with physical protection such as alarm
system layouts, intrusion detection equipment, and security
communications systems, among other information. Sections 73.22(a)(2)
and 73.23(a)(2) would protect information associated with physical
protection such as intrusion alarms, vehicle immobilization features,
and plans for law enforcement coordination. Sections 73.22(a)(3) and
73.23(a)(3) would protect inspection reports, audits, and evaluations
to the extent they discuss security measures or security
vulnerabilities. All of this and other information categorized in the
regulations, if publicly disclosed, could be used to specifically
identify the control and accounting procedures or security measures,
including security plans, procedures, and equipment used to protect
source, byproduct, and special nuclear material and allow the
circumvention of those plans, procedures, or equipment.
The Commission's proposed conditions for access to SGI are not
overly restrictive. Persons authorized access must be trustworthy and
reliable based upon a background check to ensure that they will not
purposely or inadvertently compromise the information. Access to SGI is
limited to those with a ``need to know'' the information to avoid
unnecessarily broad distribution of the information, which would
increase the risk of inadvertent disclosures. As in the current SGI
regulations, certain persons would be deemed trustworthy and reliable
by virtue of their occupational status-these persons are generally
members of government or law enforcement agencies, who in many cases
have undergone background checks as a condition of their employment.
Representatives of foreign governments or organizations would also not
be subject to the background and criminal history checks, if approved
by the Commission for access to SGI. Such an exemption is consistent
with the Commission's historical practice. All of these persons would
still be required to demonstrate a ``need to know'' the information.
The Commission's proposed SGI handling requirements are not overly
restrictive. Document marking requirements are necessary to distinguish
SGI from other information so that it can be properly controlled.
Locking up SGI while unattended is necessary to prevent unauthorized
access to the information, as is limiting access to keys and knowledge
of lock combinations. Restrictions on electronic processing,
telecommunications and transmission are important to prevent
interception of SGI, whether by electronic surveillance or other means.
Comment: Many commenters suggested that the SGI designation does
not permit the NRC to withhold all information and that the NRC is
acting illegally and trying to silence those who are trying to improve
nuclear safety. If instituted, these regulations would compromise the
public's ability to hold the nuclear industry and its government
regulators accountable for their management of nuclear facilities and
materials.
Response: The Commission recognizes that there are statutory limits
to the use of the SGI designation. The revised proposed rule remains
within these limits and describes categories of information that may
properly be considered SGI. The revised proposed rule recognizes the
Commission's authority to issue further orders or regulations
designating information as SGI, provided it is within the scope of
Section 147 of the AEA.
The Commission's purpose in proposing this rulemaking is not to
unnecessarily withhold information from the public, to silence
criticism of nuclear safety or security policies or to prevent the
public from offering suggestions for improvement. The proposed SGI
regulations are intended to ensure adequate protection of the public
health and safety and the common defense and security by preventing
authorized disclosure of certain, limited category of information that
could be used to compromise the security of nuclear facilities and
materials.
The Commission always welcomes public input on nuclear safety and
nuclear security. Members of the public may write letters to the
Commission, file petitions for rulemaking under 10 CFR 2.802, and file
requests to institute a proceeding to modify, suspend, or revoke a
license under 10 CFR 2.206. Members of the public may seek to initiate
or participate in adjudications held in connection with proposed
licensing actions. They may also attend public meetings to communicate
their safety and security concerns. The NRC will always consider and
respond to public concerns, but it must do so without compromising the
safety and security of nuclear materials and facilities.
Comment: One commenter stated that the original proposed rule would
create a system without rights, duties, and obligations such as those
in the Freedom of Information Act (FOIA), which would abuse the open
government principles on which the United States was founded. Other
commenters proposed that a final rule include procedures for
designating
[[Page 64009]]
officials who may withhold SGI, to provide oversight of the system, and
to allow for review or appeal of SGI or SGI-M determinations. A
commenter stated that the NRC has not provided an individual the
opportunity to challenge an SGI determination by appealing to the head
of the agency. A commenter expressed concerns that a final rule needed
the types of controls and checks that are built into the national
security classification system. According to the commenter, there are
no mechanisms for reviewing and appealing decisions to categorize
information as SGI; the rule has an inadequate mechanism for removing
information from SGI status once it has been categorized; there are no
truly independent bodies to exercise oversight over SGI determinations;
there is no recognized channel for getting disputes over SGI status
into court; and there are insufficient mechanisms for making the
portions of SGI information which would not present a risk in the form
of redacted documents available to Congress, the news media, and the
public.
Response: Section 147 of the AEA sets forth the substantive legal
requirements governing the protection of SGI. Section 147 of the AEA
does not require the Commission to develop FOIA-like appeal procedures
to resolve individual challenges to SGI designation on a case-by-case
basis.
Creation of FOIA-like appeal procedures would result in a
cumbersome administrative process for SGI designation and potentially
require substantial resources to implement and administer. The
preferred approach is the one the Commission is proposing here--
providing the public notice of and opportunity to comment on categories
of information the Commission would consider SGI.
Throughout this rulemaking, the Commission has been open about the
categories of information it seeks to protect and the reasons for
protecting that information. The Commission is giving the public
adequate notice of the approach and ample opportunity to challenge the
Commission's SGI designations on a generic basis. There is no need to
develop procedures for challenging the designation of information as
SGI or SGI-M.
Comment: One commenter proposed that the NRC should followup this
rulemaking with the deletion of or revisions to current orders and
advisory letters. In the interim, NRC should, by order or regulation,
state that the revised regulations supersede all conflicting orders and
advisory letters issued prior to the effective date of the revision to
the regulations.
Response: This revised proposed rule incorporates the requirements
for SGI protection previously described in NRC orders and advisory
letters. The final rule would, on its effective date, supersede all SGI
orders and advisory letters issued prior to that effective date. The
Commission will, however, take administrative action to withdraw all
previously orders where appropriate.
Comment: One commenter recommended that the NRC rule specify that
security information or plans associated with a licensee possessing,
using, transporting, or offering for transport greater than or equal to
Category (CAT) I quantities of Strategic Special Nuclear Material
(SSNM) be controlled as Classified National Security Information in
accordance with the provisions of 10 CFR parts 25 and 95. In addition,
the commenter recommends that the NRC revise the final rule with
respect to the protection of information associated with security
information and plans for a licensee possessing, using, transporting,
or offering for transport CAT II and III quantities of special nuclear
material (SNM) to utilize a risk-informed and graded approach
consistent with the change to CAT I SSNM, specifically:
(1) Security information and plans for licensees possessing, using,
transporting, or offering for transport less than a formula quantity of
SSNM but greater than or equal to a CAT II quantity of SNM (consisting
of U-233, Pu, or high-enriched U-235 (enriched to 20 percent or more))
should be controlled as SGI per the requirements of Sec. Sec. 73.21
and 73.22 of the original proposed rule;
(2) Security information and plans for licensees possessing, using,
transporting, or offering for transport less than a CAT II quantity of
SNM (consisting of U-233, Pu, or high-enriched U-235 (enriched to 20
percent or more)), but more than 10 kg of a CAT III quantity of SNM, or
a CAT II quantity of low-enriched U-235 (enriched to less than 20%)
should be controlled as SGI-M per the requirements of Sec. Sec. 73.21
and 73.23 of the original proposed rule;
(3) The risks associated with security information and plans for
licensees possessing, using, transporting, or offering for transport
less than a CAT III of SNM do not require protection under part 73.
The commenter suggests that this approach would provide greater
regulatory clarity than the NRC's original proposed rule language of
``fuel cycle facilities required to implement security measures'' and
``fuel cycle facilities'' in Sec. Sec. 73.21(a)(1)(i) and 73.22
introductory text, respectively, by clearly identifying de minimis
levels of SNM requiring protection.
The commenter also recommends that the NRC revise part 76 to
incorporate this graded approach for certificate holders under part 76,
because the requirements for protection of CAT I, II, or III SNM under
parts 70 and 76 should be the same.
Response: The revised proposed rule language clearly indicates that
it only applies to information that is not classified as Restricted
Data or National Security Information. If the specific information is
considered to be Restricted Data or National Security Information it
would be protected as such and the SGI provisions would not apply.
The NRC staff agrees that a graded approach should be used, and the
revised proposed rule uses a graded approach. The staff agrees that
additional clarification is necessary to explain what is meant by fuel
cycle facilities. The original proposed rule text has been revised to
add clarity. Fuel fabrication facilities, uranium enrichment
facilities, uranium hexafluoride conversion facilities, and independent
spent fuel storage installations will be subject to the provisions in
Sec. 73.22 for SGI. Research and test reactors and other facilities
that have special nuclear material of low or moderate strategic
significance will be subject to the provisions of Sec. 73.23 for SGI-
M.
Comment: One commenter suggested that a final rule either: (1)
Remove the designation of site access information as SGI; or (2)
specify that the ``need to know'' includes the protection of employment
and labor rights, so that individuals involved in employment-related
grievances, arbitration, litigation, and/or labor contract negotiations
and administration may gain access to relevant SGI when such
individuals qualify as ``Individuals Authorized to Access Safeguards
Information''. Also, the commenter requests that the rule set forth a
procedure by which employees and their representatives may apply to
gain access to relevant SGI for the protection of employment and labor
rights so that individuals involved in employment-related grievances,
arbitration, litigation and/or labor contract negotiations and
administration may gain access to relevant SGI when such individuals do
not qualify as ``Individuals Authorized to Access Safeguards
information.''
The commenter asserts that it is additionally problematic that site
access information is SGI because it could lead to an unnecessary
chilling effect having adverse safety implications. Removing
[[Page 64010]]
site access information as SGI or, alternatively, establishing
provisions whereby employees and their representatives may obtain such
information, will prevent violations of individuals' rights under
applicable laws and will not compromise the safety of nuclear
facilities.
Response: The revised proposed rule would not designate ``site
access information'' as SGI and is not intended to discourage
individuals from raising safety or security concerns to licensees or
the NRC. Employees of NRC licensees who feel they have been retaliated
against for raising safety or security concerns are encouraged to seek
potential enforcement action through the NRC and to go to the
Department of Labor for potential personal remedies.
There is no presumptive ``need to know'' for agents representing
employees of NRC licensees in employment-related grievances. The
revised proposed rule would not establish a special procedure by which
agents representing employees of NRC licensees may have access to SGI,
but the Commission retains the authority to grant such access if the
circumstances of an individual case so require.
Comment: One commenter contended that the Commission lacks the
statutory authority to impose regulations for the protection of SGI
pertaining to the security measures of State licensees. According to
this commenter, the licensees or applicants referred to in Section 147
of the AEA are clearly those of the Commission only, and not of the
Agreement States.
Response: Section 147a. of the AEA requires the Commission, in
relevant part, to prescribe such regulations or issue such orders as
necessary to prohibit the unauthorized disclosure of SGI. The
Commission also has authority under Subsections 161b. and 161i. to
issue rules, regulations, or orders to protect the common defense and
security. Moreover, Section 274m. of the AEA, ``Cooperation with
States,'' provides that no agreement entered into pursuant to Section
274b. shall affect the Commission's authority under Subsections 161b.
and, 161i.
As to the commenter's assertions regarding the terms ``licensee''
or ``applicant,'' the plain language of Section 147 refers simply to
``licensee's or applicant's [detailed information].'' Section 147 draws
no distinction between a ``Commission licensee'' as the commenter
asserts and an ``Agreement State licensee.'' Thus, on its face, the
statute does not support the commenter's viewpoint.
Comment: One commenter suggested that a final rule should focus not
only on SGI and SGI-M material, but should include rules for the
protection of other levels of information.
Response: The scope of this rulemaking, as stated in the original
proposed rule, is limited to amending the regulations for the
protection of SGI. Other types of information are governed by separate
requirements. For example, an executive order, applicable government-
wide, controls Classified National Security Information. E.O. 12958, as
amended, ``Classified National Security Information'', and related
directives of the Information Security Oversight Office, National
Archives and Records Administration, April 20, 1995. NRC regulations
found in 10 CFR 2.390 govern handling of other categories of sensitive
unclassified information. The NRC has determined that no further
changes to NRC regulations are warranted at this time.
Comment: One commenter questioned the ``correct'' categorization of
information the NRC considers to be SGI. According to the commenter,
when a Department of Energy (DOE) facility is licensed, there may be
difficulties in deciding if the information should be Classified
National Security Information (CNSI) or SGI. On the other hand, the
commenter asserted that ``Official Use Only'' should be considered
before marking the information as SGI.
Response: The proposed amendments to the regulations reflect the
statutory definitions of SGI in Section 147 of the AEA. The Commission
believes that the definitions in the revised proposed rule accurately
reflect the information described in Section 147 as SGI. Both the
relevant proposed amendments to part 73 as well as guidance that would
be issued by the staff would assist licensees in correctly designating
information to be protected as SGI. The DOE has previously demonstrated
that it has a comprehensive program governing the classification of
information. As noted in the original proposed rule, any information
classified as National Security Information would carry that
designation and not be designated as SGI.
It is appropriate for any entity possessing sensitive information,
classified or otherwise, to consider all possible and appropriate
classifications/designations of information when making decisions to
protect such information from public disclosure. The Commission expects
that information falling within the definition of SGI will be so
designated, thus mandating the withholding of the information from
public disclosure and that only information properly characterized as
SGI will be designated as such. In this regard, the Commission notes
that information marked as ``Official Use Only'' does not assure that
the information will be withheld from public disclosure.
Comment: One commenter recognized that requirements in 10 CFR
73.22, for SGI, would apply to reactors and licensees authorized to
possess a formula quantity of SSNM, while requirements in 10 CFR 73.23,
for SGI-M, would apply to licensees authorized to possess certain
quantities of source and byproduct material and SNM of moderate or low
strategic significance. The commenter pointed out that some licensees
are authorized to possess, in one license, in excess of a formula
quantity of SSNM, in addition to a significant quantity of source
material and byproduct material. The commenter suggested that the rule
is not clear on whether such a licensee should follow Sec. 73.22 or
Sec. 73.23. The commenter further suggested that it would seem
burdensome for a single licensee to have separate SGI and SGI-M
programs. Another commenter noted that industry discussions with the
NRC led it to believe that controlling SGI-M documents under its
existing SGI program was acceptable; however, the proposed changes in
paragraph (d) of Sec. Sec. 73.22 and 73.23 appear to contradict that
position and expand the marking and handling requirements to apply to
both SGI and SGI-M documents. That commenter noted that, given the
effectiveness of the current program, there does not appear to be any
justification for the additional marking requirements in paragraph (d).
Response: The NRC agrees with the comment that it could be
inefficient for licensees possessing categories or quantities of
material under Sec. Sec. 73.22 and 73.23 to implement both information
protection schemes. Licensees subject to both Sec. Sec. 73.22 and
73.23 would be in compliance with the requirements for protection of
SGI if they implement the higher protection standards in Sec. 73.22,
or they may choose to implement a multi-level approach. Licensees with
a single-level information security system could use the marking
``Safeguards Information'' in place of ``Safeguards Information--
Modified Handling.'' This alternative would be appropriate because the
facility security measures and associated information protection
requirements would be based on the higher category of asset possessed
by the licensee.
A primary difference between the SGI protection requirements in
Sec. 73.22 and the SGI-M protection requirements in Sec. 73.23 is how
the information is
[[Page 64011]]
marked and stored. SGI in the former category is marked ``Safeguards
Information'' while the latter category is marked ``Safeguards
Information designated as Safeguards Information-Modified Handling.''
The different markings are associated with different storage
requirements. SGI described in Sec. 73.22 must be stored in a locked
security storage container, but SGI described in Sec. 73.23 has a less
stringent storage requirement--the information must be stored in a
locked file drawer or cabinet or may be stored in a security container
as described in Sec. 73.22.
Proper marking is necessary when SGI is communicated between
entities or parties so that the recipient does not receive a document
with markings that would require storage in a container that the
recipient does not possess. It is the duty of the licensee or applicant
who transfers documents containing SGI to a party beyond their control
to ensure that the document is properly marked. Without the appropriate
document markings, the sender inadvertently could cause a violation of
the regulations.
Comment: One commenter noted that the expanded types of documents
that must be handled as SGI or SGI-M and the addition of marking
requirements will require additional effort and time to implement.
Therefore, the commenter suggested that the rule allow at least one
year for the licensee to effectively implement the requirements.
Response: The NRC recognizes that SGI requirements require effort
and time to implement, but does not concur that one year is necessary
for implementation. This revised proposed rule reflects orders already
imposed by the Commission and would expand the types of security
information covered by Sec. 73.2. Considering the scope of the rule,
the Commission proposes to set an effective date for the final rule of
90 days from publication in the Federal Register.
Comment: One commenter stated that the reference in the
Supplementary Information portion of the original proposed rule to
criminal penalties for violation of Commission requirements governing
SGI should clarify that criminal sanctions are only imposed for willful
violations.
Response: In response to this comment, the relevant language in
Section I. (``Background'') of this revised proposed rule has been
changed to remove ambiguity about the application of criminal penalties
for violations of the AEA (i.e., such penalties apply to willful
violations only).
Comment: One commenter asked whether DOE facilities licensed by the
NRC would be excluded from all orders.
Response: To the extent that the NRC has regulatory authority over
a DOE facility, the NRC has the authority to issue orders to the DOE
applicable to that facility.
3. Section-Specific Comments
Parts 60 and 63: Disposal of High-Level Radioactive Waste in Geologic
Repositories; Disposal of High-Level Radioactive Wastes in a Geologic
Repository in Yucca Mountain, Nevada
Comment: One commenter suggested that the degree of information
security required for facilities licensed under parts 60 and 63 is
insufficient for the protection of National Security Information and is
inconsistent with long-standing NRC classification guidance, recent
Commission and staff actions, as well as the 2004 ``Joint DOE and NRC
Sensitive Unclassified Information and Classification Guide for the
Office of Civilian Radioactive Waste Management Program'' (CG-OCRWM-1,
which is non-public). The commenter contends that this inconsistency in
language will cause regulatory confusion and could lead to inadequate
protection of National Security Information or inadequate enforcement
authority.
Specifically, the commenter notes that the proposed language in
Sec. Sec. 70.22, 70.32, 73.2, and 73.22 refers to physical security,
safeguards contingency, and guard qualification and training plans
information being controlled as SGI per Sec. Sec. 73.21 and 73.22.
However, CG-OCRWM-1, the commenter notes, indicates that certain
information associated with the proposed Yucca Mountain repository will
be considered National Security Information.
In addition, the commenter contends that Sec. Sec. 60.21, 60.42,
63.21, and 63.42 refer to the ``design for physical security'' to be
protected as SGI, but does not mention the ``physical security plan.''
The commenter suggests that the NRC explicitly require the physical
security plan for a repository licensed under parts 60 or 63 be
protected as SGI or classified information, to ensure that the plan
itself is properly protected and that greater regulatory consistency is
maintained. In addition, the commenter recommends that the NRC revise
parts 60 and 63 to require design for physical security and the
physical security, safeguards contingency, and guard qualification and
training plans be controlled as SGI or classified information per parts
25 and 95.
Response: The SGI definition includes the disclaimer that it does
not include information classified as National Security Information or
Restricted Data. Any information covered by the classification guide as
constituting National Security Information would continue to be
classified. The proposed regulation would cover security related
information that is not covered by the classification guide. Changes to
this revised proposed rule are not necessary to specify which
information is considered to be National Security Information and which
is SGI, however, changes to the original proposed rule have been made
in Sec. Sec. 60.21, 60.42, 63.21, and 63.42 to clarify that security
information associated with a geologic repository would be protected as
SGI or as classified information. The NRC has also revised the original
proposed rule language to remove the inconsistency in terminology for
the ``physical security,'' ``safeguards contingency,'' and ``guard
qualification and training plans.''
Comment: One commenter suggested that the program entitled ``Joint
DOE and NRC Sensitive Unclassified Information and Classification Guide
for the Office of Civilian Radioactive Waste Management Program''
remains an adequate and acceptable program, as written, for the
identification of SGI and its continued use in the part 63 licensing
process will be in compliance with this rulemaking.
Response: A classification/designation guide, ``Joint DOE and NRC
Sensitive Unclassified Information and Classification Guide for the
Office of Civilian Radioactive Waste Management Program,'' has been
issued by the NRC and the DOE. This guide reflects the current laws and
regulations governing classification and designation of information
required to be protected from unauthorized disclosure. The NRC staff
believes that this guide represents the information proposed to be
protected by the current rulemaking.
Part 73: Physical Protection of Plants and Materials
Section 73.2 Definitions
The Commission received numerous comments on the definitions.
Commenters asked the Commission to revise, delete, or add definitions
for terms used in the rule. Some new terms have been added because of
changes made in other sections of the revised proposed rule. Public
comments and responses to the comments, as well other reasons for
changes to Sec. 73.2, are presented below.
[[Page 64012]]
Comprehensive Background Check
Comment: Commenters suggested that the term ``comprehensive
background check'' be defined.
Response: The Commission has changed the phrase ``comprehensive
background check'' to ``background check'' in the new proposed rule.
The change is intended to more clearly distinguish the background check
requirements of this revised proposed rule from the background
investigation requirements of other regulations governing access
authorization (10 CFR 73.56). Background investigations required under
those regulations are arguably more comprehensive. To avoid the
impression that the background check that would be required by this
rule would be more stringent or probing than background investigations,
the word ``comprehensive'' has been deleted.
The Commission has included a general definition of ``background
check'' in Sec. 73.2 of the revised proposed rule. A background check
performed to determine the trustworthiness and reliability of an
individual to be authorized access to SGI or SGI-M includes, at a
minimum, a criminal history check, verification of identity, employment
history, education, and personal references. The EPAct expanded the
NRC's authority to fingerprint, and as such, entities engaged in
activities subject to regulation by the Commission, entities who
applied for licenses or certificates to engage in Commission-regulated
activities, and entities who have notified the Commission in writing of
an intent to file an application for licensing, certification,
permitting, or approval of a product or activity subject to regulation
by the Commission would be required under 10 CFR 73.57 to conduct
criminal history checks, including fingerprints, before granting access
to SGI or SGI-M to the employees of the individual's organization.
Ultimately, the decision whether an individual is sufficiently
trustworthy and reliable to receive SGI or SGI-M is made by the person
granting access. In the case of information held by the NRC staff and
the originator, the NRC staff would make the determination. The
background check must be sufficient to support a trustworthiness and
reliability determination so that the person granting access and the
Commission have reasonable assurance that individuals granted access to
SGI do not constitute an unreasonable risk to the public health and
safety or the common defense and security.
To reiterate, the background check that would be required by this
revised proposed rule may not completely satisfy the background
investigations required under other regulations. Nor does the
trustworthiness and reliability determination based on the background
check that would be required by this revised proposed rule satisfy the
trustworthiness and reliability objectives of other regulations. For
example, determining trustworthiness and reliability under 10 CFR 73.56
requires not only a background investigation, but a psychological
assessment and behavioral observation as well. Determining
trustworthiness and reliability under 10 CFR 26.10 requires chemical
and alcohol testing under a fitness-for-duty program. Those
requirements are separate from the requirements of this revised
proposed rule.
The NRC staff plans to issue further guidance that will include a
discussion of acceptable background checks to support a licensee's
trustworthiness and reliability determinations.
Detailed Control and Accounting Procedures
Comment: One commenter suggested that the term ``detailed control
and accounting procedures'' for SNM needs clarification, for example,
as to whether it includes: (1) The written directions for transferring
fuel between the fuel pool and the reactor; (2) the outage schedule
that shows when fuel movement occurs; (3) the real-time communication
channels or video-monitoring to support fuel movement; or (4) the
computer and software that performs the isotopic calculations for
irradiated fuel. The commenter is concerned that restricting access to
these types of detailed information would significantly hamper work
coordination and communication within the protected area, without
affecting what is commonly known outside the protected area in a more
general sense.
Response: In response to the request in this comment, the
Commission notes that ``detailed control and accounting procedures'' do
not include any of the four types of information set forth in this
comment. Therefore, there should be no concern about restricting access
to these types of information on the basis that they are SGI.
High-Level Radioactive Waste, Spent Nuclear Fuel, and Irradiated
Reactor Fuel
Comment: A commenter requested that these terms be defined in Sec.
73.2.
Response: The revised proposed rule would make conforming changes
to 10 CFR part 72, ``Licensing Requirements for the Independent Storage
of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-
Related Greater than Class C Waste.'' The terms ``high-level
radioactive waste'' and ``spent nuclear fuel'' are defined in existing
10 CFR 72.3. These definitions of ``high-level radioactive waste'' and
``spent nuclear fuel'' would not be affected and would continue to
apply. The description of ``irradiated reactor fuel'' provided in Sec.
73.37 includes certain spent fuel described in parts 71 and 72, is
consistent with the definition of spent fuel in the Nuclear Waste
Policy Act (NWPA), and appropriately uses a graded approach for
physical protection and safeguards considerations. Therefore, the
Commission does not believe a separate definition of the term is needed
in Sec. 73.2.
Safeguards Information (``SGI'')
Comment: Commenters stated that the definition of this term in the
original proposed rule is too broad. They asked that the terms used in
Section 147 of the AEA, ``a licensee's or applicant's'' detailed
information, be included in the rule's definition of SGI.
Response: This revised proposed rule modifies the definition of SGI
to more closely track the language in Section 147, by including the
term ``licensee's or applicant's [detailed information].'' However, SGI
could include information other entities generate, e.g. vendors, as
such information could ultimately identify a licensee's or applicant's
detailed procedures, security measures, or other information within the
scope of Section 147.
Comment: A commenter suggested that while security measures to
protect certain plant equipment vital to the safety of production or
utilization facilities should be protected as SGI, the location of the
equipment should not be included within the definition of SGI.
Response: As set forth in Section 147 of the AEA, SGI includes
``security measures for the physical protection of and the ``location
of certain plant equipment vital to the safety of production or
utilization facilities involving nuclear material covered by paragraphs
(1) and (2) [of Section 147a]''. The Commission has determined, in
accordance with Section 147a.(3) of the AEA, that the unauthorized
disclosure of this type of information could reasonably be expected to
have a significant adverse effect on the health and safety of the
public or the common defense and security. As required by Section
[[Page 64013]]
147a.(3)(A), the Commission applied the minimum restrictions necessary
to protect the health and safety of the public or the common defense
and security in making this determination. As noted in the Statement of
Considerations for the original proposed rule, one purpose of this
rulemaking is to include in part 73 the types of information the
Commission may protect as SGI, based on the description of SGI in
Section 147 of the AEA. Accordingly, the Commission is keeping the
language which is the subject of this comment in the definition of SGI
in Sec. 73.2.
Comment: A commenter requested that the definition of SGI in Sec.
73.2 include language that allows for temporary status of SGI, based,
for example, on a six-month period in which there would be an immediate
risk if the information were disclosed.
Response: Designation of information as SGI is not static. Section
73.22(h), ``Removal from Safeguards Information category'' would
require that documents originally containing SGI must be removed from
the SGI category, in accordance with the criteria in Sec. 73.22(h), at
such time as the information no longer meets the criteria contained in
part 73. In addition, a review of such documents to make that
determination shall be conducted every 10 years. Documents that are 10
years or older and designated as SGI or SGI-M shall be reviewed for a
decontrol determination if they are currently in use or removed from
storage. The Commission sees no need to modify the definition of SGI to
reflect the non-permanent nature of the SGI designation, as the
commenter requests.
Comment: According to another comment, the definition of SGI should
not allow a source or byproduct material ``exemption'' that would allow
the NRC to categorize anything as SGI if it believed disclosure of that
information could have an adverse effect on the public health and
safety or the common defense and security. The commenter expressed
concern that such language could be overused or abused, and therefore
suggested that it be eliminated and that the definition of SGI be more
precise and have clearly defined limits.
Response: Section 147a.(2) of the AEA specifically includes as SGI
security measures for the physical protection of source material or
byproduct material in quantities determined by the Commission to be
significant to the public health and safety or the common defense and
security. The Commission has appropriately defined the categories of
information to be protected as SGI or SGI-M in this rulemaking. Those
categories are within the limits of the Commission's authority under
Section 147 of the AEA.
Comment: A commenter objected to the ``blanket exemption'' in the
definition of SGI and requested that this ``exemption'' be eliminated.
According to the commenter, such an ``exemption'' was unnecessary and
could adversely impact workers'' and communities' abilities to monitor
health risks.
Response: The definition of SGI does not contain any explicit
``exemption.'' Therefore, the Commission can only surmise as to the
``exemption'' to which this comment refers. The commenter may be
referring to that portion of the definition which reflects the
Commission's authority, under Section 147a.(3) of the AEA, to determine
certain security measures to be SGI, provided certain findings are made
pursuant to Sections 147a.(3)(A) and (B). In exercising this authority,
the Commission would, as reflected in the SGI definition, make the
designation by order or regulation as specified in revised 73.22(a)(5)
and 73.23(a)(5). The Commission is proposing to modify this portion of
the definition of SGI to make clear that the ``other information''
would be within the scope of Section 147.
Safeguards Information-Modified Handling (``SGI-M'')
Comment: A commenter believes that the definition of this term is
unclear and should be defined as ``lower-risk information'' and
therefore have less rigorous restrictions and greater public access.
Response: The definition of SGI-M in Sec. 73.2 is not as specific
as the definition of SGI in Sec. 73.2. The main reason for this is
that SGI-M is SGI for which modified handling requirements apply. As
stated in the Statement of Considerations for the original proposed
rule, the term SGI-M ``would be added to reflect this new designation
for marking [and handling] of SGI subject to this regulation.'' 70 FR
at 7199. The marking and handling requirements for SGI-M are set forth
in Sec. 73.23, ``Protection of Safeguards Information-Modified
Handling: Specific Requirements.'' Those requirements are less
restrictive than for information marked SGI, for example, requirements
for unattended storage of SGI-M set forth in Sec. 73.23(c)(2). The
introductory text of Sec. 73.23 and paragraph (a) of that section
specifically describe the types of information SGI-M that are subject
to the handling requirements. Therefore, the Commission sees no need to
modify the definition of SGI-M in the revised proposed rule.
Significant Adverse Effect
Comment: One commenter proposed that a final rule define the term
``significant adverse effect''.
Response: The term ``significant adverse effect'' appears in
Section 147.a. of the AEA, in the proposed definition of SGI, and
elsewhere in the revised proposed rule. The term reflects the
Commission's authority under Section 147a.(2) and (3) to protect
against a certain type of unauthorized disclosure of information. Such
an unauthorized disclosure is one which ``could reasonably be expected
to have a significant adverse effect on the health and safety of the
public or the common defense and security by significantly increasing
the likelihood of theft, diversion, or sabotage'' of material or a
facility. Thus, a ``significant adverse effect'' is one which could
significantly increase the likelihood of such effects. The Commission
believes that this statement adequately describes the term and a
separate definition is not necessary.
Transportation Physical Security Plan
Comment: One commenter proposed that the final rule define the term
``transportation physical security plan''.
Response: The phrase ``transportation physical security plan'' does
not appear in the revised proposed rule. The new proposed rule would
require protection of ``the composite physical security plan for
transportation'' in Sec. 73.22(a)(2)(i), and ``information regarding
transportation security measures, including physical security plans and
procedures'' in Sec. 73.23(a)(2)(i). The revision was made in part
because not all licensees who would be subject to the revised proposed
rule are explicitly required to have a ``transportation security
plan.''
The revised proposed rule is intended to protect information
detailing the physical security measures and procedures used to protect
source, byproduct, and special nuclear material in transit, whether or
not those measures and procedures are contained in a document labeled
``transportation security plan.'' Because the term ``transportation
physical security plan'' is not used in the revised proposed rule,
there is no need to provide a definition.
Threat Environment
Comment: One commenter proposed that a final rule define the term
``threat environment.''
Response: The phrase, ``threat environment,'' does not appear in
the revised proposed rule text and, therefore, a definition for that
term is not warranted.
[[Page 64014]]
Trustworthiness and Reliability
Comment: Several commenters from both public interest and industry
groups expressed concern with the proposed definition of
``Trustworthiness and Reliability'' and whether it is sufficiently
clear. One commenter wrote that it is conceivable that the criteria
used to judge ``trustworthiness and reliability'' could be applied
arbitrarily to restrict access to information by persons deemed to have
interests in opposition to the NRC or the nuclear industry. This
commenter also expressed concern that the procedure by which the
``comprehensive background check'' would be conducted is not clear.
Another commenter expressed the opinion that the ``definition of
trustworthiness and reliability does not clearly address how its
requirements will be uniformly applied for all classes of individuals,
nor is it clear as to whether there is a necessity for continued
monitoring, nor is it clear what process an individual who is not a
utility employee and does not have unescorted access must undergo to
satisfy the criteria.''
A third commenter suggested that the definition of trustworthiness
and reliability should include a link to Sec. Sec. 73.56 and 26.10
such that a positive conclusion for access authorization and fitness
for duty would allow a licensee to conclude an individual is
trustworthy and reliable; however, unescorted access should not be a
requirement for ``trustworthiness and reliability.''
Finally, along similar lines, one commenter questioned whether
elements in Sec. Sec. 73.56 and 26.10 must be completed in order to
determine trustworthiness and reliability. If that is the case, the
commenter suggested that it should be specified. The commenter also
expressed concerns that such a definition would be challenging to
administer, especially for contract engineering firms who are never at
the site.
Response: Ultimately, the decision whether an individual is
sufficiently trustworthy and reliable to receive SGI is made by the
person granting access based on a background check. The background
check must be sufficient to support the trustworthiness and reliability
determination so that the person granting access and the Commission
have reasonable assurance that granting an individual access to SGI
does not constitute an unreasonable risk to the public health and
safety or the common defense and security. The general elements of a
background check are defined in the revised proposed rule and discussed
briefly above.
Not all persons who would be subject to this rule will have fitness
for duty or access authorization programs, so the revised proposed rule
does not include cross-references to trustworthiness and reliability
requirements in Sec. Sec. 26.10 or 73.56. Trustworthiness and
reliability determinations required by those regulations may inform or
serve as the trustworthiness and reliability determination that would
be required under this revised proposed rule, if those determinations
are based on a background check that also meet the requirements of this
rule. The NRC staff plans to issue further guidance that will include
discussion of acceptable background checks to support a licensee's
trustworthiness and reliability determinations.
There is no requirement in this revised proposed rule that an
individual determined to be trustworthy and reliable undergo a periodic
background check to confirm or monitor trustworthiness and reliability.
However, should a licensee learn of information that would reasonably
call into question the trustworthiness and reliability of an individual
authorized access to SGI or SGI-M, the licensee should re-evaluate the
individual. In the case of NRC adjudicatory proceedings where
subsequent requests for access are made, a new determination may be
required depending on the length of time that has elapsed between
requests.
The trustworthiness and reliability determination based on a
background check that would be required does not necessarily satisfy
the trustworthiness and reliability objectives of other regulations.
For example, determining trustworthiness and reliability under 10 CFR
73.56 requires not only a background investigation, but a psychological
assessment and behavioral observation as well. Determining
trustworthiness and reliability under 10 CFR 26.10 requires chemical
and alcohol testing under a fitness-for-duty program. Those
requirements are separate from the requirements of this rule.
The Commission realizes that the trustworthiness and reliability
requirement could be difficult to administer. But the same is true of
many requirements aimed at monitoring the behavior and character of
individuals. That does not make the requirement any less essential to
ensuring safety and security. Determining trustworthiness and
reliability is crucial to minimizing the risk that SGI will be
compromised, and the Commission expects persons making trustworthiness
and reliability determinations to do so in a fair and reasoned way.
Section 73.21 Protection of Safeguards Information: Performance
Requirements
Comment: One commenter suggested that Sec. 73.21 be revised to
require SGI protection for information associated with the
transportation of spent nuclear fuel (SNF) or high level waste (HLW) in
greater quantities than 15 grams in order to be consistent with the
NRC's fissile exemption limit for transportation purposes found in
Sec. 71.15(b). As a conforming change, the commenter also proposed
that Sec. 73.2 be revised to include definitions for ``spent nuclear
fuel,'' ``high-level radioactive waste,'' and ``irradiated nuclear
fuel,'' and that Sec. 73.72 should be revised in the final rule to
refer to advance notifications of shipments of greater than 15 grams of
SNF or HLW.
Response: The Commission believes that the physical protection
measures for shipments involving 100 grams or more of irradiated
reactor fuel are appropriately controlled as SGI per Sec. 73.22.
Detailed security measures, physical security plans and procedures for
the transportation of source, byproduct, and SNM in greater than or
equal to Category 1 quantities of concern are designated as SGI-M
pursuant to Sec. 73.23(a)(2)(i). Those quantities cover the lower
threshold for material as proposed by the commenter. NRC orders issued
to persons transporting such materials require protection of such
information and material when in transit.
In response to the comment requesting definitions of the terms
``spent nuclear fuel,'' ``high-level radioactive waste,'' and
``irradiated nuclear fuel,'' the Commission noted that the first two
terms are defined in 10 CFR 72.3 and the third term is described in
Sec. 73.37. Therefore, separate definitions of these terms in part 73
are unnecessary.
Section 73.21(a)(1)
Comment: Two commenters suggested that the use of the terms ``fuel
cycle facilities required to implement security measures'' in Sec.
73.21(a)(1)(i) and ``fuel cycle facilities'' in the introductory
language of Sec. 73.22 are unclear. The commenters requested
clarification on whether this is meant to apply to all fuel cycle
facilities, or only those authorized to possess a formula quantity of
special nuclear material, and not low strategic significance fuel cycle
facilities, where SGI-M requirements might apply.
Response: The Commission has changed the text of the new proposed
rule by deleting the phrase ``fuel cycle facilities'' and replacing it
with ``uranium hexafluoride production
[[Page 64015]]
facilities, fuel fabrication facilities, and uranium enrichment
facilities.'' Fuel cycle licensees authorized to possess a formula
quantity of SSNM remain subject to the requirements of Sec. 73.22 as
originally proposed.
Section 73.21(a)(2)
Comment: Two commenters proposed that Sec. 73.21(a)(2) be amended
to state that information protection procedures employed by Federal law
enforcement agencies are also deemed to meet the general performance
requirement, as some licensee facilities are located on Federal lands
and Federal law enforcement officers respond to security events.
Response: In response to this comment, the proposed Sec.
73.21(a)(2) is being modified to provide that information protection
procedures employed by law enforcement agencies are presumed to meet
the general performance requirements included in that section.
Section 73.22 Protection of Safeguards Information: Specific
Requirements
Section 73.22(a) Information To Be Protected
Comment: One comment recommended that the NRC should specify all
the types of information and documents that are part of the
``expansion'' of what is considered to be SGI. Clarification is needed
as to the meaning and application of undefined terms such as
``additional security measures,'' ``protective measures,'' and
``interim compensatory measures.''
Response: Both the definition of SGI and the description of the
specific types of information to be protected as SGI provide sufficient
details as to what information constitutes SGI. Any other information
to be designated as SGI would be set forth in an order or regulation,
in compliance with Section 147 of the AEA. Additionally, the terms
``additional security measures,'' ``protective measures,'' and
``interim compensatory measures,'' are being deleted from the text of
Sec. 73.22(a), and therefore need not be defined.
Section 73.22(a)(1) and 73.23(a)(1) Physical Protection
Comment: A commenter suggested that Sec. Sec. 73.22(a)(1) and
73.23(a)(1) should be narrowed to those documents that contain
sufficient detail on the licensee's actual strategies or procedures
that, if inadvertently disclosed, could reasonably be expected to have
a significant adverse effect on the health and safety of the public or
the common defense and security by significantly increasing the
likelihood of theft, diversion, or sabotage of material or a facility.
The commenter indicated that it is unnecessary to categorize documents
as SGI or SGI-M unless the information is specific to the facility or
its protective strategy, or unless the protective features cannot be
readily observed by an unauthorized individual from outside the
Protected Area.
Response: Proposed Sec. Sec. 73.22 and 73.23 would not protect all
information related to the materials and facilities described in those
sections. Sections 73.22 and 73.23 are explicitly limited to the
protection of SGI and SGI-M. By definition, SGI and SGI-M is
information the unauthorized disclosure of which could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of sabotage or theft or diversion of source,
byproduct, or SNM. Sections 73.22(a)(1) and 73.23(a)(1) do not expand
that limited scope. No changes have been made to the revised proposed
rule.
The Commission disagrees that SGI should include only information
specific to a facility or its defensive strategy. While such
information clearly requires protection, so does certain generic
information, such as the design basis threat implementing guidance,
which describe in detail the specific operational and tactical
capabilities of the hypothetical adversary force more generally
described in the design basis threat rule. Those details, which are
generically applicable to a number of licensees, could be used to
identify licensee security measures, and if disclosed, could reasonably
be expected to have a significant adverse effect on the health and
safety of the public or the common defense and security by
significantly increasing the likelihood of theft, diversion, or
sabotage of material or a facility.
Comment: One commenter suggested that Sec. 73.22(a)(1)(ii) be
amended to clarify the term ``substantially represent the final design
features.'' The commenter suggests, for example, that the language
``substantially represent the final design features such that an
engineer or security professional could detect vulnerabilities'' would
provide the necessary clarity.
Response: The Commission does not believe the language the
commenter proposes would clarify this provision because the inclusion
of the phrase ``such that an engineer or security professional could
detect vulnerabilities'' adds an unnecessary level of complexity.
Determining ``which site specific drawings, diagrams, sketches, or maps
substantially represent final design features of the physical security
system,'' as stated in the revised proposed rule text, is less
subjective. In addition, SGI need not contain information limited to
vulnerabilities.
Comment: A commenter recommended that Sec. 73.22(a)(1)(ii) be
modified to exclude from the SGI designation site specific drawings,
diagrams, sketches, or maps that substantially represent the final
design features of the physical security system which are accessible to
members of the public. According to the commenter, information relating
to security features such as fences, barriers, guard posts, and certain
security cameras are in plain view and therefore not appropriate for
designation as SGI. The commenter also proposed a similar change to
Sec. 73.22(1)(a)(iii) that would apply to alarm system layouts showing
the location of intrusion detection devices, alarm assessment
equipment, alarm system wiring, emergency power sources, and duress
alarms which are accessible to the public.
Response: In response to these comments, the paragraphs cited above
are being changed to add the phrase ``not clearly discernible by
members of the public'' at the end of each paragraph.
Comment: Two commenters felt that the meaning of ``emergency power
sources'' in Sec. Sec. 73.22(a)(1)(iii) and 73.23(a)(1)(ii) is not
sufficiently clear as to whether it included emergency power sources
for alarm systems only or any and all emergency power systems. One
commenter proposed changing the language to read: ``As installed
details of alarm system layouts, location, and electrical design, that
if disclosed, could facilitate gaining unauthorized access to special
nuclear material, nuclear facilities, or Safeguards Information''.
Response: The Commission has modified the revised proposed rule
text in response to this comment by inserting the additional words
``for security equipment'' after the term ``emergency power sources''.
Comment: Two commenters noted, with respect to Sec.
73.22(a)(1)(iv), that not all written physical security orders and
procedures need to be SGI, as some security procedures are general or
administrative and do not require SGI protection. Moreover, the
commenters stated, designation of all security procedures as SGI would
delay training new employees in the security force. Therefore, the
commenters proposed that Sec. 73.22(a)(1)(iv) be modified to allow
flexibility in the control of security procedures. Another commenter
proposed amending
[[Page 64016]]
Sec. 73.22(a)(1)(iv) to read ``[w]ritten physical security protective
strategy orders and procedures for members of the security
organization, duress codes, and patrol routes''.
Response: In response to these comments, the phrase ``Written
physical security orders and procedures for members of the security
organization, duress codes, and patrol schedules'' is modified in the
revised proposed rule to read ``Physical security orders and procedures
issued by the licensee for members of the security organization
detailing duress codes, patrol routes and schedules, or responses to
security contingency events''.
Comment: A commenter suggested that it is unnecessary to classify
documents as SGI or SGI-M unless the information is specific to the
facility and its protective strategy. Therefore, the commenter proposed
changing Sec. 73.22(a)(1)(v) to read ``[s]ite-specific design features
or evaluations of site-specific plant radio and telephone
communications systems revealing vulnerabilities or limitations in
operating capability'' in order to narrow the scope of documents to
those that contain sufficient detail on the licensee's actual
strategies or procedures that, if disclosed, could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of material
or a facility.
Response: In response to this comment, the language of Sec.
73.22(a)(1)(v) has been changed in the revised proposed rule to read
``Site specific design features of plant security'' at the beginning of
the section. These modifications to the text are not meant to address
the broader concern already addressed in response to comments on Sec.
73.22(a)(1) and Sec. 73.23(a)(1). In addition, and as previously
stated, the incorporation of such language in this section of the rule
does not exclude certain generic information applicable to a number of
licensees. Such information could be used, for example, to identify a
specific licensee's security measures.
Comment: One comment stated that Sec. Sec. 73.22(a)(1)(vii),
73.22(a)(1)(viii), and 73.22(a)(1)(ix) reference the safeguards
contingency plan and training and qualification plan. The commenter
then pointed out that these are now part of the composite security plan
that was submitted as a result of the April 29, 2003 Order.
Response: Before the April 2003 Order, power reactor licensees were
required to have the following three separate plans: ``physical
security plan'', ``safeguards contingency plan'', and ``guard training
and qualification plan''. In response to that order, power reactor
licensees chose to consolidate these three separate plans into a single
``security plan''. The original proposed rule text has been revised in
response to the comment to make clear that the composite physical
security plan is considered SGI under Sec. 73.22(a)(1)(i).
Comment: One commenter suggests modifying Sec. 73.22(a)(1)(ix) to
read ``[a]ll portions of the composite facility guard qualification and
training program that addresses the licensee's protective strategy'',
which would delete the language ``plan disclosing features of the
physical security system or response procedures'' from the end of that
paragraph. The commenter further suggests that, given that most
training and qualification plans do not include detailed information,
these plans be ``decontrolled'' by the NRC.
Response: In response to this comment, the beginning of Sec.
73.22(a)(1)(ix) has been changed in the revised proposed rule to delete
the phrase ``all portions of [the composite facility guard
qualification and training plan]''. The Commission acknowledges that
there may be some non-SGI in various licensee security plans and
accordingly is deleting the phrase ``all portions''. It is not entirely
clear what this commenter means in seeking to have this category of
information ``decontrolled''. To the extent the commenter wants
training and qualification plans to no longer be considered SGI, the
Commission is not taking that action. Contrary to what is asserted in
support of this request, this category of information includes details
warranting protection against unauthorized disclosure.
Comment: One commenter proposes changing the word ``identity'' in
Sec. 73.22(a)(1)(x) to ``agency'' or ``organization'' to eliminate any
potential confusion that ``identity'' could refer to identification of
specific individuals. In addition, the commenter proposes replacing
``safeguards or security emergencies'' with ``security contingency
events'' and making clear that ``armament'' refers specifically to the
armament of response forces. To have ``armament'' apply to licensees
would seem to require licensees to protect as SGI each purchase order
for weapons. The commenter further proposes eliminating ``information
concerning'' language and using the current part 73 language, and
therefore having the subsection read ``[r]esponse plans to specific
threats detailing size, disposition, response times, and armament of
responding forces.''
Response: The Commission is changing the language of this provision
in the revised proposed rule by deleting the phrase ``safeguards or
security emergencies'' and inserting the phrase ``security contingency
events.'' As so worded, the section emphasizes that the requirement is
security-related and also maintains consistency with other regulatory
provisions. Also, the word ``identity'' is being deleted from the
phrase to avoid the implication that this provision refers to the
identification of specific individuals. Finally, the phrase ``of
response forces'' is added after the word ``armament'' in the revised
proposed rule. The Commission is retaining the language in this
paragraph connoting that there could be features of response forces
related to or derived from those specified in the rule text which also
warrant protection as SGI. The Commission also declines to adopt the
commenter's proposed language that would replace the term ``response
forces'' with ``response plans'' because security-related plans are
addressed elsewhere in Sec. Sec. 73.22(a)(1).
Comment: One commenter suggested modifying Sec. 73.22(a)(1)(xi) to
delete the language ``including the tactics and capabilities required
to defend against that threat'' because this is covered elsewhere in
the regulations. In addition, the commenter suggested deleting ``or
other information'' as it leaves too much room for interpretation.
Another commenter suggested deleting references to the design basis
threat in this subsection and elsewhere, or creating more prescribed
provisions for exactly what is to be covered with respect to design
basis threat information, as such information is important to public
participation and knowledge.
Response: The phrase ``or other information'' is deleted and the
section is reworded to clarify which information related to the design
basis threat would be considered SGI. Specifically, the Adversary
Characteristics Document and other design basis threat implementing
guidance, which describe in detail the specific operational and
tactical capabilities of the hypothetical adversary force more
generally described in the design basis threat rule, are considered
SGI. The phrase ``including the tactics and capabilities required to
defend against the threat'' is deleted from the revised proposed rule
because it is not necessary. Those tactics and capabilities are
described in licensee security plans which are considered to be SGI.
[[Page 64017]]
Comment: Several commenters expressed the concern that language in
Sec. 73.22(a)(1)(xii) would include engineering and safety analyses
and emergency planning procedures or scenarios within SGI protection,
and this would suppress information of significant concern to the
public. Commenters also suggested that the criterion found in Sec.
73.22(a)(1)(xii) was not sufficiently precise so as to alert a licensee
as to the type of information to be protected, that the proposed
language ``exposes such a licensee to second-guessing or enforcement
action.'' One commenter representing a public interest watchdog group
stated that the public has a ``right to know what risks they face from
nearby nuclear facilities'' and that ``public participation has proven
an effective tool for improving facility performance and safety.'' The
commenter expressed concern that if the public does not know what is
going on at a facility, it cannot effectively engage the facility and
advocate for safety improvements and that if the public was not aware
of emergency planning procedures, it would be at risk from an accident
or a possible attack against a facility. In addition, the commenter
proposes that the NRC should retain the current rule language that
allows only ``portions of'' documents to be protected as SGI, in order
to maximize the amount of information that the public receives without
divulging any protected information.
Another commenter similarly stated that ``it is crucially important
that the public has access to information regarding protective measures
taken by operators to defend their facilities so that they may be held
accountable'' and that the ``broad category of information that is
included in these sections, including, especially, safety analyses,
emergency planning procedures, and any other information related to the
security of a nuclear facility, sharply hinders the public's ability to
judge the competency of nuclear operators and the adequacy of their
programs to protect their facilities and materials.''
Another commenter expressed concerns that Sec. 73.22(a)(1)(xii)
could be used to ``suppress faulty assumptions as the basis for
engineering and safety analyses, which is a significant concern to
public safety policy analysts and intervenors.''
Other commenters also provided comments with regard to Sec. Sec.
73.22(a)(1)(xii) and 73.22(a)(2)(viii). One commenter proposed that it
should be clear that ``engineering and safety analyses'' mean only such
analyses pertinent to physical security and not plant safety, as that
information is already public. Industry commenters expressed concern
that control of emergency planning procedures as SGI would make
coordination with local and state agencies difficult, as well as
affected non-governmental entities, and could jeopardize effective and
safe operation of a plant. More specifically, one commenter notes broad
interpretation of these requirements would require state and local
governmental entities who are not in law enforcement but are involved
in emergency planning to be verified as ``trustworthy and reliable'' by
the licensee in order for the licensee to comply with 10 CFR part 50,
Appendix E IV.B.
One commenter recommends revising the wording at the end of Sec.
73.22(a)(1)(xii), proposed as ``by significantly increasing the
likelihood of theft, diversion, or sabotage of material or a
facility,'' to ``significantly increasing the likelihood of
radiological sabotage or theft or diversion of source, byproduct, or
special nuclear material,'' in order to correspond to the wording used
in the definition of SGI.
Response: In response to these comments, the phrase ``related to''
at the beginning of Sec. 73.22(a)(1)(xii) is being changed in the
revised proposed rule to ``revealing site specific details of''. The
phrase ``unauthorized disclosure of such information'' is changed to
``unauthorized disclosure of such analyses, procedures, scenarios, and
information''. These revisions clarify that the analyses, procedures,
scenarios, and other information described in this section are
considered to be SGI only if they reveal ``site specific details''
about the physical protection of the facility or source material,
byproduct material, or SNM. To clarify the fact that ``emergency
planning procedures or scenarios'' should remain publicly available, to
the extent possible, that phrase is being changed here and elsewhere in
the rule text, to ``security-related procedures or scenarios''.
However, security-related information, wherever it occurs, including
security information that is found within a specific emergency
preparedness procedure, could potentially need to be protected as SGI.
Also, in order to provide greater specificity in the revised proposed
rule text, the phrase ``material or facility'' at the end of the
revised proposed rule text is changed to ``source, byproduct, or
special nuclear material''.
Certain sections of the current rule language, as well as sections
of the revised proposed rule text, refer to ``portions of'' documents
to be protected as SGI. For example, current Sec. 73.21(b)(3)(i)
designates, in pertinent part, ``[p]ortions of safeguards inspection
reports'' to be SGI. Similarly, in the revised proposed rule text,
Sec. 73.22(a)(3)(i) refers to ``portions of'' inspection reports as
constituting SGI. Therefore, it is not correct that the current rule
only allows protection of portions of documents or information as SGI.
Because the Commission is revising the original proposed rule to
more closely track the language of Section 147 of the AEA, the
Commission is declining to make the suggested change to the end of
Sec. 73.22(a)(1)(xii) by substituting ``radiological sabotage'' for
the statutory language of ``sabotage.'' The relevant portions of
Section 147 refer simply to ``sabotage'' and the Commission is using
that term in the revised proposed rule.
The Commission's intent in revising the requirements in part 73 for
protection of SGI is not to deprive the public of information or to
suppress faulty assumptions in engineering analyses and safety
analyses, as some commenters assert. One of the main purposes of these
proposed amendments is to provide in 10 CFR part 73 the breadth of
information that Section 147 of the AEA requires the Commission to
protect. The Commission determined that unauthorized release of this
information could result in harm to the public health and safety or the
common defense and security.
Comment: One commenter noted that, ``as proposed, Sec.
73.22(a)(1)(xiii) requires `Information required by the Commission
pursuant to 10 CFR 73.55(c)(8) and (9)' to be protected as SGI without
explicitly identifying what must be protected as SGI''. The commenter
suggested that there is no apparent reason to protect this information
as SGI and the requirement should therefore be deleted.
Response: The Commission is deleting this paragraph because the
information described in this paragraph would be protected in Sec.
73.22(a)(1)(xi).
Section 73.22(a)(2) Physical Protection in Transit
Comment: One commenter stated that Sec. Sec. 73.22(a)(2) and
73.23(a)(2) would cover transportation related information that is
under the DOT's regulations in 49 CFR part 15, ``Protection of
Sensitive Security Information (SSI)''. If implemented in its current
form, the commenter continues, these regulations will require licensees
to handle, at a minimum, transportation security plan risk assessments
as both SSI and SGI or SGI-M, duplicative requirements that
[[Page 64018]]
add no discernible benefit. Furthermore, the commenter states,
classification of certain transportation related information as SGI
will be unworkable. Therefore, the commenter proposes, all of the
regulatory agencies should reach consensus on what information should
be protected, reduce the number of classifications, and develop a
single cohesive nationwide set of information security protection
standards that includes a clear definition of each classification. If
the NRC does impose duplicative requirements for protection of
transportation security-related information in addition to DOT's
regulations, the commenter further suggests, the NRC should replace
``transportation physical security plan'' with ``transportation
security plan'' to be consistent with DOT regulations, or provide a
definition of ``transportation physical security plan.''
Response: The NRC recognizes that transportation of radioactive
material may be subject to the requirements of both the DOT and the NRC
with respect to protective markings, SSI, SGI, and SGI-M. However,
requirements for the protection SSI are not as strict as NRC SGI or
SGI-M protection requirements. The NRC believes that the information
described in Sec. 73.22(a)(2)(i) requires the higher protection
afforded by the designation SGI. Similarly, the information set forth
in Sec. 73.23(a)(2)(i) must be protected as SGI-M. Finally, as noted
previously, the Commission has replaced the phrase ``transportation
physical security plan'' with ``composite physical security plan for
transportation'' to distinguish NRC-required plans from others.
Comment: One commenter contended that the new language of Sec.
73.22(a)(2)(ii), ``Routes and quantities for shipments of spent fuel
are not withheld from public disclosure,'' no longer assures public
access to route and quantity information for shipments of byproduct or
source material or nuclear waste. The commenter expresses concern that
the NRC does not have the authority to limit access to this
information, for which Congress has specifically protected public
disclosure in the AEA. The commenter therefore proposes that the NRC
ensure that the language in the final rule does not undermine the AEA
by narrowing disclosure requirements.
Response: The revised proposed rule would not designate shipping
routes and quantities as SGI or SGI-M. However, the rule would
designate schedules and itineraries as SGI and SGI-M. Schedules and
itineraries combine route and quantity information with specific
information about the timing and security of a shipment to create
information that, if disclosed, could reasonably be expected to have a
significant adverse effect on the health and safety of the public or
the common defense and security by significantly increasing the
likelihood of sabotage or theft or diversion of nuclear material.
Section 147a.(3) of the AEA provides in part that ``[n]othing in this
Act shall authorize the Commission to prohibit the public disclosure of
information pertaining to routes and quantities of shipments of source
material, by-product material, high level nuclear waste, or irradiated
nuclear reactor fuel.'' The revised proposed rule text has been revised
to be more consistent with the language of Section 147a.(3) of the AEA.
Comment: One commenter proposed removing Sec. 73.22(a)(2)(vii) on
the grounds that it is extremely vague and would allow the NRC to
protect from public disclosure any ``information concerning the tactics
and capabilities required to defend against attempted radiological
sabotage, or theft and diversion of formula quantities of special
nuclear material, or related information.'' The commenter expressed
concern over the NRC's use of ``vague terms'' such as ``any information
concerning'' and ``related information'' and suggested that this
provision could be used to conceal information about a town's
capabilities to respond to an attack on a rail car passing through it.
Response: The language ``related information'' portion of this
section has been deleted from the text of the revised proposed rule
because it is redundant of the language at the beginning of this
section (``information concerning''). The text of the rule does not
include the phrase ``any information concerning'' as stated in the
comment.
Comment: Commenters expressed concerns that Sec. 73.22(a)(2)(viii)
would exempt safety analyses, emergency planning procedures, or other
information about the protection of transported materials from public
disclosure as SGI. Accordingly, commenters recommended revising or
removing Sec. 73.22(a)(2)(viii) in order to ensure that the public has
access to emergency procedures and safety analyses information they
need to protect their community. A commenter proposed removing the
proposed Sec. Sec. 73.22(a)(2)(viii) and 73.23(a)(2)(iv) and (v) on
the grounds that these proposed changes would prevent communities from
learning what steps are being taken to protect them and from
participating in the process of keeping the community safe. The
commenter expressed concerns that these provisions are overly vague in
what information may be protected from public disclosure and could
result in too much information being concealed from the public.
Response: The Commission recognizes that the public needs
information about safety and emergency planning and will continue to
make much of that information publicly available. Therefore, the phrase
``emergency planning procedures or scenarios'' is being changed to
``security-related procedures or scenarios''. But a limited amount of
safety and emergency planning-related information, if publicly
disclosed, could be used to identify security measures for the
protection of nuclear facilities and materials, thereby significantly
increasing the likelihood of sabotage or theft and diversion. For
example, emergency planning information that specifies response times
for local law enforcement, or identifies the size, tactics, and
capabilities of first responders to a radiological event could be very
useful to a potential adversary in planning an attack. Accordingly,
that information could conceivably need to be protected as SGI.
The Commission's intent is not to prevent public knowledge of vital
safety and emergency information. Hence, the revised proposed rule has
been changed in response to comments that it was too broadly worded as
originally proposed. The protection required for engineering and safety
analyses and security-related procedures or scenarios under Sec.
73.23(a)(1)(x) would be appropriately limited to information that could
reasonably be expected to have a significant adverse effect on the
health and safety of the public or the common defense and security by
significantly increasing the likelihood of theft, diversion, or
sabotage of source material, byproduct material, or SNM.
Section 73.22(a)(3) Inspections, Audits, and Evaluations
Comment: A commenter objected to what it saw as the broadening of
Sec. 73.22(a)(3) and stated that the proposed change lacks specificity
and could potentially conceal public health, safety, security, and
environmental concerns from public disclosure. The commenter expressed
concern that the provision could be interpreted to include and suppress
information that rightfully should be brought to the attention of the
public and policy makers.
Response: The Commission has eliminated references to specific
licensees from the revised proposed rule. This clarifies the scope of
the rule
[[Page 64019]]
and simplifies the text. The commenter provides no basis for the
assertion that the Commission would use revised Sec. 73.22(a)(3) to
conceal information from public disclosure. The regulations provide
access to individuals who have a ``need to know'' the information and
who are trustworthy and reliable. Protecting SGI and SGI-M from
unauthorized disclosure does not equate to concealing or suppressing
information that should be in the public domain.
Comment: Another commenter suggested that the NRC restore the
provision in proposed Sec. 73.22(a)(3)(i) to allow the release of
information developed in inspections, audits, and evaluations
concerning weaknesses and problems that have been corrected.
This paragraph retains the provision in current Sec.
73.21(b)(3)(i) which designates as SGI portions of safeguards
inspection reports, evaluations, audits, or investigations that contain
details of a licensee's or applicant's physical security system or that
disclose uncorrected defects, weaknesses, or vulnerabilities in a
licensee's or applicant's physical security system. This provision
implies that corrected defects, weaknesses, or vulnerabilities will be
released.
Response: In response to this comment, the proposed rule is revised
in part, to carry over the portion of Sec. 73.21 that provides for the
release of information regarding defects, weaknesses, or
vulnerabilities after corrections have been made. However, as stated in
the revised text, the disclosure of such information is not automatic,
and is subject to an assessment taking into account such factors as the
results of trend analyses and the impacts of disclosures on other
licensees having similar physical security systems. The partial
revision of the proposed rule text is consistent with the policy to
increase the amount of public information released pursuant to the
Security Oversight Process.
Section 73.22(a)(5)
Comment: Two commenters suggested that Sec. 73.22(a)(5) lacked
specificity. One commenter expressed concerns that Sec. 73.22(a)(5)
was not specific enough to ``allay growing public concerns that the
agency could arbitrarily and capriciously further conceal or
subordinate significant public health, safety, and security issues to
economically shield and benefit the nuclear industry.'' Another
commenter suggested that the language of Sec. 73.22(a)(5) was an
``incredible expansion of government secrecy that could allow instances
of extreme operational incompetence to go unnoticed by the public.''
That commenter suggested deleting the ``other information'' language to
narrow and clarify the rule.
Another commenter proposed making Sec. 73.22(a)(5) reflect the
preamble of Sec. 73.22 by stating that orders will only be used to
classify information in an emergency when rulemaking is not available.
Response: Section 147 of the AEA explicitly authorizes the
Commission to proceed by order or regulation to prohibit the
unauthorized disclosure of SGI. Nothing in the AEA limits the use of
the Commission's ordering authority to emergency situations. Such a
restriction could hinder security and safety in the event the
Commission needs to act quickly to protect SGI not already identified
in the regulations. The Commission declines to adopt such a limitation.
However, the Commission has changed the revised proposed rule language
to clarify that any information that would be categorized as SGI under
Sec. 73.22(a)(5) would have to be within the scope of Section 147 of
the AEA, and would be imposed by a new order or rulemaking.
Section 73.22(b) Conditions for Access
Comment: One commenter remarked that, in the context of Sec.
73.22(b), there is no benefit from imposing different access
authorization requirements for nuclear power reactors as compared to
other licensees.
Response: In the original proposed rule, access requirements varied
depending on whether an individual is to be granted access by a nuclear
power reactor licensee or applicant, as set forth in Sec.
73.22(b)(1)(i)(A) or by other licensees or applicants covered by Sec.
73.22, pursuant to Sec. 73.22(b)(1)(i)(B). Such variation was based on
Section 149 of the AEA, which required each licensee or applicant for a
license to operate a nuclear power reactor to fingerprint each
individual permitted access to SGI. The EPAct, however, amended Section
149 to authorize fingerprinting all individuals engaged in an activity
subject to regulation by the Commission, licensees, all applicants for
a license to engage in Commission-regulated activities, and all
individuals who have notified the Commission in writing of an intent to
file an application for licensing, certification, permitting, or
approval of a product or activity subject to regulation by the
Commission. Fingerprints would be submitted to the U.S. Department of
Justice for a criminal history check, which would be assessed as part
of the background check that provides the basis for a trustworthiness
and reliability determination.
Section 73.22(b)(1)
Comment: Several comments stated that Sec. Sec. 73.22(b)(1)(i)(B)
and 73.23(b)(1)(i) in the original proposed rule were unclear as to
what is meant by ``comprehensive background check or other means as
approved by the Commission.'' One commenter noted that requiring a
background investigation has proven to be challenging for
transportation companies, because the time required for background
investigations has often prevented transportation companies from
bidding on some jobs. That commenter suggested that the NRC specify the
``other means'' that would be acceptable for entities implementing an
SGI-M program. Another commenter expressed concern that if the
``comprehensive background check'' was similar to the ``Q'' or ``L''
access authorization investigations or checks of 10 CFR part 25, it
would impose an intolerable burden because of the time and resources
necessary for the completion of such a check, particularly for those
entities developing new SGI or SGI-M programs.
Response: As previously discussed, a definition of ``background
check'' is now included Sec. 73.2. NRC staff plans to issue further
guidance that will include a discussion of acceptable background checks
that would satisfy the rule requirements by ``other means'' and support
a licensee's trustworthiness and reliability determinations. The
requirements for access to SGI are different from the provisions for
access to classified information (part 25) or for access under part 95
to Classified National Security Information and/or, Restricted Data,
and/or Formerly Restricted Data.
Comment: A commenter expressed the concern that Sec.
73.22(b)(1)(ii)-(vi) in the original proposed rule in combination with
Sec. 73.22(b)(2) appears to require licensees to perform a Federal
Bureau of Investigation (FBI) criminal history check for NRC personnel.
If this is not the case, the commenter proposed that (b)(2) of both
sections should be modified to state: ``The individuals described in
paragraph (b)(1)(i) through (vi).''
Response: The Commission does not interpret the cited provisions of
the original proposed rule set forth by the commenter as requiring
licensees to perform FBI criminal history checks for NRC personnel.
Section 73.22(b)(3) would exempt governmental individuals from the
requirement for a
[[Page 64020]]
determination of trustworthiness and reliability, including NRC
employees.
Comment: One commenter stated that Sec. 73.22(b)(1)(vii) would
require a licensee to demonstrate trustworthiness and reliability for
an individual to whom disclosure is ordered pursuant to 10 CFR
2.709(f). The commenter noted that a licensee should not bear the
responsibility for making this finding for an intervenor. The commenter
also noted that the rule was not clear as to when a presiding officer
would have the responsibility to make this determination--when an
intervenor wants access to SGI or only if an intervenor appeals a
party's determination. For these reasons, the commenter suggested
rethinking the application of these criteria to adjudicatory hearing
matters and resolving such issues in a separate rulemaking or by
issuing Commission orders in each case where controlling the
dissemination and use of SGI might be an issue.
Response: The rule is not intended to require licensees to
determine whether intervenors in an adjudicatory proceeding are
trustworthy and reliable to receive SGI or SGI-M. Presiding officers
have the authority to make determinations about information disclosures
if a dispute over access to SGI or SGI-M documents arises. Section
73.22(b)(4) and 73.23(b)(4) have been added to the revised rule to make
this clear. Sections 2.709(f) and 2.1010(b)(6) have been revised and
new Sec. Sec. 2.336(f) and 2.705(c)(2) have been added to the revised
proposed rule to specify procedures to be followed in the event of such
a dispute.
Under the procedures set forth in these provisions, when a party or
participant in an adjudicatory proceeding seeks production of SGI from
another party or participant that refuses to produce it, the presiding
officer has the authority to decide the dispute. The presiding officer
will make the first determination necessary for access to SGI, which is
whether the individual seeking access has the requisite ``need to
know'', as defined in 10 CFR 73.2. If so, the presiding officer may
order production of the SGI after the second determination is made,
namely whether the individual to be authorized access to SGI has been
found to be trustworthy and reliable by the NRC Office of
Administration, based on a background check (including a criminal
history records check and fingerprinting). Procedurally, the presiding
officer may issue an order that designates the information as necessary
and relevant and that requires the party or participant seeking access
to SGI or SGI-M to designate those individuals who would receive it.
The order would also require the NRC Office of Administration to
determine the trustworthiness and reliability of those individuals
designated to receive SGI in accordance with the provisions of
Sec. Sec. 73.22(b) or 73.23(b), as appropriate.
If the NRC Office of Administration concludes that the designated
individuals are trustworthy and reliable to receive SGI, the presiding
officer would issue a second order requiring production of the SGI or
SGI-M under the provisions of a protective order. Presiding officers
have the authority to hear appeals on the NRC Office of
Administration's trustworthiness and reliability determination.
If parties or participants in an adjudicatory proceeding agree that
an intervenor has a ``need to know'' and are willing to share the SGI
or SGI-M without seeking a determination on ``need to know'' from the
presiding officer, then the parties or participants may do so, provided
that a protective order has been issued by the presiding officer and a
trustworthiness and reliability determination has been made by the NRC
Office of Administration. If the SGI sought by the intervenor is held
solely by the licensee or applicant, and not the NRC, the licensee or
applicant may provide the SGI to the intervenor under the terms of the
protective order. If the SGI is held by both the licensee or applicant
and the NRC (``dual holders''), the NRC will provide the SGI to the
intervenor, under the terms of the protective order.
Section 73.22(c)(1) Protection While in Use or Storage
Comment: Commenters proposed that Sec. 73.22(c)(1) be amended to
authorize SGI to be stored in the Reactor Control Room not in a locked
security storage container. The basis for this request is that control
rooms are continuously manned and this change would allow rapid access,
if necessary, to pertinent SGI material (e.g., controlled operating
procedures).
Response: In response to these comments, Sec. Sec. 73.22(c)(1) and
73.23(c)(1) are being changed to delete the phrase ``Safeguards
Information within alarm stations, manned guard posts or ready rooms
need not be locked in a locked security storage container.'' A new
phrase is being added to state ``Safeguards Information within alarm
stations, or rooms continuously occupied by individuals need not be
stored in a locked security storage container.''
Section 73.22(c)(2)
Comment: One commenter proposed that Sec. 73.22(c)(2) be modified
to allow licensees to mark containers as containing SGI, because this
practice ensures that the importance of those containers is clearly
understood and because those containers are typically located in areas
with no public access.
Response: The Commission is declining to adopt the change proposed
by the commenter because marking locked security storage containers to
indicate they contain SGI may assist in identifying the location of
SGI. The fact that such containers may typically be located in areas
without public access is irrelevant because not all individuals in such
areas are authorized for access to SGI. An unauthorized individual
seeking access to SGI might be aided by such markings, regardless of
whether the SGI is stored in areas without public access.
Section 73.22(d)(1)
Comment: One commenter proposed that the term ``first page'' in
Sec. 73.22(d)(1) be changed to ``first page or cover sheet'' to allow
licensees to continue with current practice which meets the intent of
the revised proposed rule.
Response: The Commission is not modifying Sec. 73.22(d)(1) as the
commenter suggests because the information specified in Sec.
73.22(d)(1)(i) through (iii) should be noted on the first page of the
document itself rather than in a separate document, such as a cover
sheet. The Commission does not expect that licensees or applicants must
go back and mark documents for which a cover sheet was used for the
required information instead of the first page of the document, as set
forth in Sec. 73.22(d)(1).
Comment: One commenter suggested that the requirement in Sec.
73.22(d)(1)(i), and a similar provision in Sec. 73.23(d)(1)(i),
regarding ``the individual authorized to make a * * * [SGI]
determination, and who has determined that the document contains'' SGI
is not clear, for example, as to whether training is required or
whether a SGI or SGI-M determination requires one or two individuals.
Response: The commenter is correct that the rule does not prescribe
specific qualifications for persons who will determine whether or not
particular information is SGI or SGI-M. Licensees have an incentive to
select and train competent persons to make these determinations,
because a finding that a document contains SGI or SGI-M will add to the
licensee's document-handling
[[Page 64021]]
burdens. At the same time, the Commission recognizes that when there is
any doubt about whether information is or is not SGI or SGI-M, there is
an incentive to mark it as SGI. This ``err on the safe side'' tendency
could lead to unnecessary burdens and over-use of the SGI or SGI-M
designations. The Commission will consider making appropriate additions
or changes to resolve this problem if it should arise. Such changes
might include specifying qualifications for persons who make SGI or
SGI-M determinations if experience shows this to be necessary. The
number of individuals necessary to make these designations may vary
from one licensee to another. The Commission expects that the
individual(s) who are ``authorized to make a Safeguards Information
determination'' are the same as the individual(s) who ``determined that
the document contains Safeguards Information.'' In other words, the
individual or individuals making the determination must be authorized
to do so.
Comment: A commenter suggested that the requirement to designate
the individual making the SGI determination is ``redundant and
unnecessary'' for pleadings. The commenter stated that the
determination can be attributed to the individual signing the pleading.
Response: The Commission disagrees with this comment, as oftentimes
the person making an SGI determination will not be the signatory of a
pleading. Section 73.22(d)(1) ensures that the identity of the person
making the SGI determination--be it the individual signing the pleading
or some other individual--is clear. If the signatory also makes the SGI
determination, the document should be marked in accordance with Sec.
73.22(d)(1). The Commission does not view this as redundant or
unnecessary and declines to adopt the commenter's suggestion.
Section 73.22(d)(3)
Comment: A commenter questioned whether pleadings filed in an
adjudicatory proceeding would be considered correspondence to the NRC
requiring portion marking pursuant to Sec. 73.22(d)(3). The commenter
stated that SGI in a pleading is ``usually integral to the entire
pleading such that removal of such information would render the
remainder [of the pleading] of marginal or no use, if released.'' The
commenter indicated that substantial effort would be required to
portion-mark pleadings containing SGI. Additionally, the commenter
concluded that intervenors have a general reluctance to designate a
particular piece of information as non-SGI because they ``will be
second-guessed by the licensee or NRC staff.'' For these reasons, the
commenter stated that there appeared to be little utility added by this
requirement.
Response: Pleadings filed in an adjudicatory proceeding before the
NRC are considered correspondence and therefore would require portion
marking in accordance with Sec. 73.22(d)(3). Attachments and exhibits
to pleadings, however, are not considered to be correspondence and,
therefore, do not require portion marking. For example, a pleading may
attach portions of a security plan as an exhibit. The attached plan
would not be required to be portion marked, but instead can be treated
in its entirety as SGI. The NRC uses portion marking to ensure that the
pleading is made public without the portion-marked SGI. Although the
Commission acknowledges that additional effort will be required by
participants in adjudicatory proceedings to portion mark pleadings, the
Commission does not believe that the burden is undue, especially when
compared with the potentially adverse consequences of a malevolent
adversary obtaining SGI. Finally, the Commission disagrees with the
commenter's conclusions about intervenors' reluctance to designate
information as non-SGI. The Commission declines to change Sec.
73.22(d) in response to these comments.
Comment: Several comments were received to the effect that the
portion marking requirements of Sec. Sec. 73.22(d)(3) and 73.23(d)(3)
for ``Engineering and safety analyses, emergency planning procedures or
scenarios'' would be burdensome and that the portion marking of
documents sent to the NRC would impose an unnecessary burden on
licensees and should therefore not be required. One commenter noted
that the portion marking requirements would be unnecessary because
licensees control entire documents as SGI and that the administrative
benefit to the NRC would not be worth the substantial burden on
licensees.
Response: This comment refers to burden on licensees to portion
mark ``Engineering and safety analyses emergency planning procedures or
scenarios'' when such information is included in correspondence to or
from the NRC. For the reason previously stated, the designation of
``Engineering and safety analyses emergency planning procedures or
scenarios'' as SGI has been changed throughout the rule text to
``security-related procedures or scenarios.'' Because many commenters
otherwise requested clarification of this category of information,
these sections also have been revised to clarify that the analyses,
procedures, scenarios, and other information described in this section
would be considered SGI only if they reveal ``site-specific details''
about the physical protection of the facility or source, byproduct, or
SNM. Licensees and applicants would only be required to portion mark
analyses, procedures, or scenarios that contain SGI when included in
transmittal documents for correspondence with the NRC.
Comment: Another commenter proposed modifying Sec. 73.22(d)(3) to
provide flexibility on portion marking of correspondence to and from
the NRC as follows: ``Portion marking of documents or other information
is allowed for correspondence to and from the NRC,'' which would
replace ``required'' with ``allowed.'' The commenter suggested that
this would allow licensees to designate entire documents as SGI without
having to mark each paragraph if appropriate.
Another commenter suggested that a document containing SGI should
be marked as SGI in its entirety, and that when it is appropriate to
produce documents that contain both SGI and non-SGI, attempts should
then be made to segregate the SGI into separate sections. The commenter
noted that in such cases, it would be reasonable to require portion
marking but not in all cases. Therefore, the commenter proposed, the
rule must reflect that portion marking is only to be required for
documents transmitted to or from the NRC in which significant portions
of the document are clearly non-SGI.
Response: In response to comments, Sec. 73.22(d)(3) is being
modified to replace the phrase ``Portion marking of documents or other
information is required for correspondence to and from the NRC'' with
the phrase ``Portion marking is required only for correspondence to and
from the NRC (i.e., cover letters, but not attachments) that contains
Safeguards Information.'' The NRC declines, however, to amend the
revised proposed rule so that portion marking of correspondence to and
from the NRC would be optional. Portion marking of such correspondence
allows the NRC to release non-SGI to the public.
Sections 73.22(d)(4) and 73.23(d)(3)
Comment: Four commenters suggested that Sec. Sec. 73.22(d)(4) and
73.23(d)(3) should not require the marking of documents and other
matter containing SGI in the hands of contractors and agents of
licensees that were produced within one year prior to the effective
date of this rule. One commenter suggested that to the extent
[[Page 64022]]
that these new requirements are different from the existing ones, the
differences are minor and that, therefore, the regulation should not
require the conduct of an extensive review of documents produced within
the last year prior to the promulgation of a final rule. Another
commenter similarly proposed that marking requirements should only be
applied to documents generated after the effective date of a final rule
and should not be applied retroactively to previously generated
documents. One commenter suggested that Sec. 73.22(d)(4) implies that
if the document is taken out of storage, even if more than a year old,
it must be marked.
Response: The requirement that documents and other matter
containing SGI in the hands of contractors and agents of licensees be
marked if they were produced within one year prior to the effective
date of the rule has been removed from the rule in response to
comments. Therefore, the marking requirements set forth in this rule
would apply only to documents generated after the effective date of a
final rule.
Section 73.22(d)(5)
Comment: Two commenters proposed that Sec. 73.22(d)(5) should be
eliminated, as it is redundant to, but inconsistent with, Sec.
73.22(d)(1), which requires material to be marked ``Safeguards
Information'' at the top and bottom of each page. One commenter noted
that the ``Safeguards Information'' designation required in Sec.
73.22(d)(5) may not alert someone who is not familiar with that
initialism to the fact that it is SGI and, therefore, that
inconsistency between Sec. Sec. 73.22(d)(5) and 73.22(d)(1) should be
eliminated.
Response: The revised proposed rule has been changed to eliminate
the redundancies and inconsistencies identified by the commenter.
Section 73.22(d)(5) in the original proposed rule has been renumbered
as Sec. 73.22(d)(4) in the revised proposed rule.
Section 73.22(e) Reproduction of Matter Containing Safeguards
Information
Comment: One commenter suggested that the new requirement
prohibiting digital copiers connected to a network, found at Sec. Sec.
73.22(e) for SGI and 73.23(e) for SGI-M, is difficult in today's
electronic office environment. Another commenter proposed that Sec.
73.22(e) should not prohibit the use of a copier, printer, or scanner
connected to the closed network in the ``stand alone'' computer system
allowed in Sec. 73.22(g).
Response: The revised proposed rule has been modified to be less
prescriptive and more performance-based. Under the revised proposed
rule, any equipment may be used to reproduce SGI, provided unauthorized
individuals cannot gain access to SGI by accessing, using, or
manipulating the equipment (for example, by gaining access to retained
memory or using network connectivity to access SGI).
Sections 73.22(f) and 73.23(f) External Transmission of Documents and
Material
Comment: One comment noted that the double packaging requirement
for external transmittal of SGI, found in Sec. Sec. 73.22(f) and
73.23(f), although not onerous, is akin to the protection afforded to
classified matter. Another commenter proposed that Sec. 73.22(f)(2) be
rewritten to state that SGI may be transported by any commercial
delivery or courier company that provides service with tracking
features, rather than any commercial delivery company that provides
``nationwide overnight service with computer tracking features'' as the
original proposed rule reads. The commenter suggests that this would
allow licensees to continue to use current trusted local delivery
services.
Response: The double packaging requirements of the original
proposed rule are necessary to prevent unauthorized individuals from
readily identifying that the package contains SGI while in transit, and
to prevent recipients from inadvertently disclosing SGI to unauthorized
individuals upon receipt. The double packaging requirements have not
been changed in the revised proposed rule.
However, the Commission agrees that local delivery services, so
long as the carriers have computer tracking capabilities, may be
permitted to transport SGI. Computer tracking capabilities are
necessary to aid in quickly determining the location of the information
so that the risk of unauthorized disclosure may be minimized. Sections
73.22(f)(2) and 73.23(f)(2) have been changed to reflect that
nationwide, overnight service would not be a requirement for a
commercial delivery company to transport SGI.
Section 73.22(g) Processing of Safeguards Information on Electronic
Systems
Comment: One commenter proposed that Sec. 73.22(g) contain a
provision permitting transfer of encrypted SGI over a computer network,
similar to the proposed Sec. 73.23(g)(2). In addition, a comment
received noted that the DOE has an SGI protection plan that was
approved by the NRC to satisfy current Sec. 73.21(h) and has a need to
retain capabilities for handling SGI as approved, due to a distanced-
managed site. This commenter therefore proposes adding a provision to
Sec. 73.22(g) to allow the use of other protective measures approved
by the NRC pursuant to old Sec. 73.21(h) or new Sec. 73.22(g).
Response: Section 73.22(f)(3) permits electronic transmission of
SGI by protected telecommunications circuits (including facsimile) or
encryption (Federal Information Processing Standard [FIPS] 140-2 or
later).
Section 73.21(b)(1) of the revised proposed rule would explicitly
preserve the Commission's authority to require different SGI protection
requirements in individual cases. If alternative protection methods can
be devised that provide an equivalent level of protection for SGI, the
Commission would consider approving those methods on a case-by-case
basis.
Section 73.22(i) Destruction of Matter Containing Safeguards
Information
Comment: Two commenters expressed concern over Sec. 73.22(i),
which contains requirements for the destruction of matter containing
SGI. One commenter suggests that Sec. 73.22(i) seemingly permits the
use of ``strip shredders'' for destruction if pieces are one-half inch
or less and mixed. The commenter states that this is inconsistent with
advice given by NRC staff members who believe that a cross-cut shredder
must be utilized and proposes that the rule clarify whether the use of
``strip shredders'' is permissible. Another commenter suggested that
the wording of Sec. 73.22(i) be modified to specify pieces one-half
inch or smaller on a side to provide important clarification of how
small the pieces would have to be to constitute destruction.
Response: The revised proposed rule has been changed in response to
this comment. The rule would allow the use of strip shredders and other
shredders that shred pieces no wider than a quarter of an inch if the
pieces are thoroughly mixed.
Sec. 73.23 Protection of Safeguards Information--Modified Handling:
Specific Requirements
Comment: A commenter suggested that establishment and
implementation of the SGI-M program by licensees with an existing SGI
program is unnecessary.
Response: Persons who establish, implement, and maintain handling,
access, and control procedures for SGI described in Sec. 73.22 would
have a program sufficient to protect SGI-M
[[Page 64023]]
described in Sec. 73.23 and would not need to establish a second or
separate SGI-M program. However, special attention would be required
when transmitting SGI to ensure proper document marking and handling.
A primary difference between the SGI protection requirements in
Sec. Sec. 73.22 and 73.23 is in the marking of the information. SGI in
the former category is marked ``Safeguards Information'' while the
latter category is marked ``Safeguards Information--Modified
Handling.'' The different markings are associated with different
storage requirements. SGI described in Sec. 73.22 must be stored in a
locked security storage container, but SGI described in Sec. 73.23 and
marked as SGI-M has a less stringent storage requirement--the
information must be stored in a locked file drawer or cabinet.
A person who possesses both types of SGI--i.e., that described in
Sec. Sec. 73.22 and 73.23--and who always stores SGI in a locked
security storage container under Sec. 73.22(c)(2) would be in
compliance with the regulations because that person would achieve the
maximum level of protection required by the regulations. But not
everyone will possess both types of SGI--some will only possess SGI
falling under Sec. 73.23, in which case a locked security storage
container would not be required. Thus, when a person with a Sec. 73.22
program sends SGI to a person with only a Sec. 73.23 program, proper
document marking would be essential.
Proper marking is necessary when SGI is communicated so that the
recipient does not receive a document with markings that would require
storage in a container that the recipient does not possess. Without the
appropriate document markings, the sender could cause a violation of
the regulations.
This commenter implies that the SGI-M designation means the
information will be held ``secret,'' which is not the case. Individuals
with a ``need to know'' the information who are determined to be
trustworthy and reliable may be granted access to SGI. Access to
``secret'' National Security Information is beyond the scope of this
rulemaking and is governed by separate requirements.
Comment: One commenter stated that if the NRC believes that
information associated with less than 15 grams of SNF or HLW should be
protected as SGI, it should be designated as ``SGI-M.'' The commenter
also proposed that information associated with the transportation of 15
grams of SNF or HLW should be protected as SGI pursuant to Sec. Sec.
73.21 and 73.22.
Response: The Commission did not propose to protect the information
identified by the commenter as SGI or SGI-M. If in the future the
Commission establishes physical security requirements for the
transportation of the materials referred to by the commenter, the
Commission will determine whether to also require protection of
security-related information as SGI or SGI-M in accordance with
Sec. Sec. 73.21(b)(1) and (2).
Comment: A commenter recommended against the creation of the SGI-M
category because the category is overly broad, the need for
restrictions on such material has not been clearly established, and the
risks associated with the release of such information do not justify
secrecy. This commenter expressed concerns that holding less-dangerous
SGI-M information as secret will decrease accountability and eliminate
the public's ability to be aware of and participate in safety matters
that concern their communities.
Response: The Commission disagrees that protection of the SGI
described in Sec. 73.23 is unnecessary. The information that would be
protected under Sec. 73.23 describes security measures and physical
protection information related to radioactive materials that could be
used in a radiological dispersion device. Securing those materials is
vital to the public health and safety and the common defense and
security. Protecting detailed information about how those materials are
secured is equally vital.
This rulemaking is not intended to decrease the Commission's
accountability or unduly burden the public's ability to participate in
NRC proceedings. Members of the public are always free to submit their
views on safety and security matters by filing a petition for
rulemaking under 10 CFR 2.802, by filing a request to institute
proceedings to modify, suspend, or revoke a license under 10 CFR 2.206,
and by attending public meetings or writing letters to the NRC. In
addition, members of the public may comment on rulemakings and
environmental impact statements, and where appropriate, file a petition
to intervene and/or request a hearing in an adjudicatory matter.
Comment: A commenter questioned the appropriateness of a statement
in the original proposed rule implying that the risk of theft of
materials covered by Sec. 73.23, particularly special nuclear
material, could be low.
Response: Special nuclear material would be addressed by Sec. Sec.
73.22 and 73.23 and would require different levels of protection based
on its form and quantity. The Commission believes that a graded
approach based on risk and associated consequences is appropriate. As a
result, a higher risk of disclosure or higher consequence due to a
malevolent act requires commensurate levels of protection. The same is
true whether the assets are source, byproduct, or special nuclear
materials.
Comment: One commenter suggested that the NRC, in its final rule,
provide greater detail on the criteria for deciding access to SGI-M
material. In addition, the commenter suggested that, because of the
lower risk status of SGI-M material, the NRC should allow greater
access to SGI-M by establishing less rigorous restrictions and easier
procedures for public access.
Response: The Commission agrees that SGI-M material presents lesser
risks if publicly disclosed than SGI material, but the risks are still
significant. Because of those risks, broad public access is not
permitted. Only trustworthy and reliable individuals who have a ``need
to know'' the information may be authorized access to SGI-M.
The revised proposed rule defines ``background check'' and
``trustworthiness and reliability'' to clarify the Commission's general
expectations for granting access to SGI or SGI-M. Specifying discrete
qualifying or disqualifying factors is not possible because
trustworthiness and reliability determinations and need-to-know
determinations must be made on a case-by-case basis after considering
all relevant information.
To implement the amendments to section 149 of the AEA contained in
the Energy Policy Act of 2005, the revised proposed rule would require
fingerprinting and Federal Bureau of Investigation criminal history
checks, which would constitute part of the background check used to
determine trustworthiness and reliability, before access to SGI.
Comment: One commenter proposed that the NRC modify the preamble to
define the exact materials and quantities to which the SGI-M
requirements of Sec. 73.23 would apply.
Response: The introductory text to Sec. 73.23 has been revised to
define exactly the facilities, materials, and quantities for which the
SGI-M requirements of Sec. 73.23 apply. The section would apply to
panoramic and underwater irradiators, defined in 10 CFR 36.2, that
possess greater than 370 TBq (10,000 Ci) of byproduct material in the
form of sealed sources; manufacturers and distributors of items
containing source, byproduct, or special nuclear material in greater
than or equal to Category 2 quantities of concern; research and test
reactors that possess less than a formula quantity of strategic
[[Page 64024]]
special nuclear material; and transportation of greater than or equal
to Category 1 quantities of concern.
Comment: One commenter stated that Sec. 73.23 would conflict with
existing requirements in 49 CFR part 15 with respect to the protection
of information associated with transporting radioactive materials. The
commenter suggests that if the rule is adopted as proposed, licensees
may be contending with two sets of regulations.
Response: The NRC's regulations are not in conflict with DOT
regulations. DOT regulations in 49 CFR 172.804 provide that DOT-
required security plans ``that conform to regulations, standards,
protocols, or guidelines issued by other Federal agencies * * * may be
used to satisfy the requirements in this subpart, provided such
security plans address requirements specified in this subpart''. Thus,
security plans required by the NRC can be developed so that they also
comply with DOT requirements.
DOT information protection requirements for transportation security
plans are less stringent than the SGI and SGI-M requirements
established by this rule. As a general matter, the Commission does not
intend that transportation security plans required by the DOT be
protected under this rule. However, licensees subject to this rule who
would be required by NRC regulations or orders to implement
transportation security measures would be required to protect those
measures and plans as SGI or SGI-M, as appropriate. Licensees that
incorporate NRC-required security measures and procedures into existing
DOT-required transportation security plans would be required to protect
portions of the transportation security plan under this revised
proposed rule. To avoid that result, licensees may wish to keep
descriptions of their NRC-required security measures and procedures
separate from DOT-required security plans.
Section 73.23(a) Information To Be Protected
Section 73.23(a)(1) Physical Protection
Comment: One commenter objected to Sec. 73.23(a)(1)(i) as too
broad in its use of the term ``all portions'' with respect to the NRC's
authority to restrict physical security plans that are labeled as SGI-
M. The commenter suggested that Sec. 73.23(a)(1)(i) creates an
``unnecessary level of secrecy'' and contends that establishing ``such
intense secrecy for a brand new and less dangerous category of
information seems completely unwarranted.'' The commenter recommended
instead that if portions of the physical security plans can be released
to the public, the agency should be permitted to disclose those
portions.
Response: The Commission agrees that some portions of a licensee's
physical security plan or procedures may be non-SGI and has deleted the
phrase ``all portions of'' from revised proposed rule. The Commission
disagrees that protection of the SGI described in Sec. 73.23 is
unnecessary. The information protected under Sec. 73.23 describes
security measures and physical protection programs for radioactive
materials that could be used in a radiological dispersion device.
Securing those materials is vital to the public health and safety and
the common defense and security. Protecting detailed information about
how those materials are secured is equally vital.
Comment: One commenter proposed that the NRC clarify the
identification of emergency power sources in Sec. 73.23(a)(1)(iii) to
apply only to alarm system power sources.
Response: The revised proposed rule would protect information in
alarm system layouts and is intended to protect information that
identifies emergency power sources for alarm systems. The revised
proposed rule text has been changed to clarify this point.
Comment: One commenter suggested that the NRC revise Sec.
73.23(a)(1)(vii) to agree with the wording in Sec. 73.22(a)(1)(ix).
Response: The Commission agrees with the comment and the revised
proposed rule has been revised to add the word ``composite'' to Sec.
73.23(a)(1)(vii).
Comment: One commenter proposed the deletion of Sec.
73.23(a)(1)(viii) as it is redundant with other Sec. 73.23(a)(1)
subsections.
Response: The commenter did not identify a specific redundancy or
point out how the proposed language would cause confusion or other
harm. Retaining the provision affords protection for SGI that might not
fit squarely under other categories. Consequently, the Commission has
not changed the provision in the revised proposed rule.
Comment: Two commenters proposed replacing the phrase ``safeguards
or security emergencies'' in Sec. 73.23(a)(1)(ix) with ``security
contingency events,'' which is used more frequently. Another commenter
suggested that the words ``Information concerning'' in Sec.
73.23(a)(1)(ix) were unclear and suggested that the NRC specify what
information concerning response forces qualifies as SGI-M.
Response: The Commission has changed the revised rule to make
consistent use of the phrase ``security contingency events.'' The
phrase ``information concerning'' in Sec. 73.23(a)(1)(ix) has been
changed to ``information relating to.'' The original proposed rule
adequately describes the types of information that would be protected
by Sec. 73.23(a)(1)(ix) by giving a number of examples of the
information the Commission seeks to protect, including response force
size, armament of the response forces, and arrival times. Similar
information about the operational and tactical capabilities of response
forces would be protected by Sec. 73.23(a)(1)(ix). The revised
proposed rule has not been revised to provide further examples.
Comment: Three commenters provided comments on Sec.
73.23(a)(1)(x). Two commenters recommended revising the wording at the
end of the paragraph to read: ``by significantly increasing the
likelihood of radiological sabotage or theft or diversion of source,
byproduct, or special nuclear material,'' in order to correspond to the
phrase used in the definition of ``SGI'' in the proposed Sec. 73.2.
One commenter suggested that withholding such information from
disclosure as SGI-M would prevent public knowledge of safety and
emergency information that would directly impact nearby communities in
the event of an accident, and doing so under the SGI-M provisions would
``allow the agency to apply vague and broad secrecy authority to an
already broad and undefined category since NRC does not detail
precisely which facilities and materials SGI-M covers.'' Therefore,
this commenter recommends that the NRC eliminate this provision and not
allow emergency planning and safety reports to be protected from public
disclosure under the new SGI-M category.
Response: The revised proposed rule text has been changed in
response to the first comment. The wording at the end of Sec.
73.23(a)(1)(x) now corresponds with the definition of SGI in Sec.
73.2.
The Commission disagrees that Sec. 73.23(a)(1)(x) is overly broad,
or that it would prevent public knowledge of vital safety and emergency
information. The protection that would be required for engineering and
safety analyses and emergency planning information under Sec.
73.23(a)(1)(x) is appropriately limited to information that could
reasonably be expected to have a significant adverse effect on the
health and safety of the public or the common defense and
[[Page 64025]]
security by significantly increasing the likelihood of theft,
diversion, or sabotage of source, byproduct, or special nuclear
material.
The Commission recognizes that the public needs information about
safety and emergency planning and will continue to make much of that
information publicly available. But a limited amount of safety and
emergency planning related information, if publicly disclosed, could be
used to identify security measures for the protection of nuclear
facilities and materials, thereby significantly increasing the
likelihood of radiological sabotage or theft and diversion. For
example, emergency planning information that specifies response times
for local law enforcement, or identifies the size, tactics, and
capabilities of first responders to a radiological event could be
useful to a potential adversary in planning an attack.
Section 73.23(a)(2) Physical Protection in Transit
Comment: One commenter suggests that, in the final rule, Sec.
73.23(a)(2)(i) use the term ``transportation security plan'' for
consistency, rather than ``transportation physical security plan'' as
the original proposed rule reads. Another commenter suggests that Sec.
73.23(a)(2)(i) is too broad in that it does not specify what
information falls into this category. This commenter recommends that at
least some portion of transportation security plans should be available
to communities to foster awareness about the safety measures applied to
nuclear materials shipments passing through their towns. In addition,
the commenter proposes that Sec. 73.23(a)(2)(i) be reworded to clarify
that the public will retain access to all information to which it is
entitled by the AEA.
Response: The phrase ``transportation physical security plan'' does
not appear in the revised proposed rule. The revised proposed rule
would require protection of ``the composite physical security plan for
transportation'' in Sec. 73.22(a)(2)(i) and ``information regarding
transportation security measures, including physical security plans and
procedures'' in Sec. 73.23(a)(2)(i). The revision was made in part
because not all licensees subject to the rule are explicitly required
to have a ``transportation physical security plan.''
The revised proposed rule is intended to protect information
detailing the physical security measures and procedures used to protect
source, byproduct, and special nuclear material in transit, whether or
not those measures and procedures are contained in a document labeled
``transportation security plan.'' Therefore no definition of
``transportation security plan'' or its revised formulations is needed.
The NRC frequently shares general transportation security
information with communities and other stakeholders. Licensees may be
able to share general information about their security procedures as
well, however, the Commission strongly cautions against this practice
to avoid an inadvertent disclosure of SGI.
The Commission disagrees that Sec. 73.23(a)(2)(i) needs to be
reworded to make clear that the public will retain access to all
information to which it is legally entitled. The comment states a
truism that need not be incorporated into NRC regulations.
Comment: One commenter suggested that Sec. Sec. 73.23(a)(2)(ii)
and (iii) are not clear in what is considered SGI, for example, if the
regulation pertains to a specific shipment or only to the general
arrangements for all shipments that may be affected. The commenter
stated that, if specific to the shipment, it is burdensome in that it
requires face-to-face meetings when such arrangements are normally made
over the telephone. In addition, the commenter stated that the phrase
``limitations of communication during transport'' in Sec.
73.23(a)(2)(iii) was not sufficiently clear.
Response: These sections apply to information related to the
protection of shipments of certain quantities of source material,
byproduct material, and SNM in greater than or equal to Category 1
quantities of concern. The information described in Sec.
73.23(a)(2)(ii) concerns arrangements with and capabilities of local
police response forces, and locations of safe havens, whether related
to a specific shipment or arrangements for shipments that may be
affected. The handling requirements for SGI-M do not mandate ``face-to-
face'' meetings. With respect to telephone conversations, Sec.
73.23(f)(3) provides that SGI-M must be transmitted electronically only
by protected telecommunications circuits or encryption approved by the
NRC except under emergency or extraordinary conditions. To the extent
that the commenter is referring to arrangements regarding scheduling
and itinerary information, the revised proposed rule text specifies
that such information is not considered SGI-M. See 10 CFR
73.23(a)(2)(i). The phrase ``limitations of communication during
transport'' in Sec. 73.23(a)(2)(iii) of the original proposed rule
(now Sec. 73.23(a)(2)(iv)) has been deleted and replaced by the phrase
``Details of alarm and communication systems, communication procedures,
and duress codes.''
Comment: One commenter expressed concerns that Sec. 73.23(a)(2)(v)
would exempt safety analyses, emergency planning procedures, or other
information about the protection of transported materials from public
disclosure as SGI-M. The commenter recommended revising Sec.
73.23(a)(2)(v) in order to ensure that the public has access to
emergency procedures and safety analyses information needed to protect
communities.
Response: In response to this and other comments, the phrase
``emergency planning procedures or scenarios'' has been changed to
``security-related procedures or scenarios''. The Commission recognizes
that the public needs information about safety and emergency planning
and will continue to make much of that information publicly available.
But a limited amount of safety and emergency planning-related
information, if publicly disclosed, could be used to identify security
measures for the protection of nuclear facilities and materials,
thereby significantly increasing the likelihood of sabotage or theft
and diversion. For example, emergency planning information that
specifies response times for local law enforcement, or identifies the
size, tactics, and capabilities of first responders to a radiological
event could be useful to a potential adversary in planning an attack.
The Commission disagrees that this revised proposed rule would
prevent public knowledge of vital safety and emergency information. The
protection required for the information designated under Sec.
73.23(a)(1)(x) would be appropriately limited to information that could
reasonably be expected to have a significant adverse effect on the
health and safety of the public or the common defense and security by
significantly increasing the likelihood of theft, diversion, or
sabotage of source, byproduct, or SNM.
Section 73.23(a)(3) Inspections, Audits, and Evaluations
Comment: One commenter expressed concerns over the proposed Sec.
73.23(a)(3) and recommended that the NRC add current regulations that
allow the public to access SGI-M information about defects and
weaknesses at nuclear facilities after they have been corrected. The
commenter suggested that the existing provision is useful and logical
in maintaining accountability and public confidence, particularly given
the lower risk associated with material
[[Page 64026]]
in the new SGI-M category. The commenter noted that the NRC proposes to
eliminate this provision with respect to SGI information and recommends
that the NRC add the provision to the SGI-M regulations.
Response: The Commission agrees with this comment and has revised
the proposed rule in part, accordingly. However, as stated in the
revised text, the disclosure of such information is not automatic, and
is subject to an assessment taking into account such factors as the
results of trend analyses and the impacts of disclosures on other
licensees having similar physical security systems. The partial
revision of the proposed rule text is consistent with the policy to
increase the amount of public information released pursuant to the
Security Oversight Process.
Section 73.23(h) Decontrolling Information
Comment: One commenter stated that the decision to decontrol
information would be a difficult assessment if consideration has to be
given to using it in combination with non-SGI, and that detailed
guidance and/or training would need to be given. The rule says that the
approval to decontrol information can be made by three options: (1)
Only by the NRC; or (2) the licensee with NRC approval; or (3) in
consultation with the individual that made the original determination,
if possible. The commenter stated that having these three options does
not make sense, as there should be one ultimate authority that states
whether it is permissible to decontrol the information so that there is
no ambiguity and all licensees use the same method.
Response: The Commission agrees that the decision to remove
information from the SGI category can be difficult. Consideration must
be given not only to the nature of the information itself, but to
whether public disclosure of that information would identify other SGI.
If so, the information should not be decontrolled.
Persons in possession of SGI who are considering decontrolling the
information should consult with the NRC, although the revised proposed
rule would not require it in every case. Information could be
decontrolled without NRC approval after consulting with the individual
or organization that originally made the SGI determination, provided
the information no longer meets the criteria of this rule. Retaining
this option gives licensees and others a measure of flexibility in
their SGI-protection procedures.
SGI generated by the NRC would only be decontrolled with NRC
approval. This would ensure that NRC orders, guidance, and other
regulatory documents would not be inconsistently decontrolled.
Part 76: Certification of Gaseous Diffusion Plants
Comment: One commenter suggested that Sec. 76.113(c) should be
revised to provide that information on the security of CAT I SSNM
should be protected under 10 CFR parts 25 and 95 as classified
information.
Response: The rule language in Sec. Sec. 73.21 and 73.22 clearly
indicates that it would only apply to information that is not
classified as Restricted Data or National Security Information. If the
specific information is considered to be Restricted Data or National
Security Information it would be protected as such and the SGI
provisions would not apply. However, the Commission recognizes that the
current language in Sec. 76.113(c), which suggests that security
information related to formula quantities of strategic special nuclear
material would be protected as SGI, may be perceived as inconsistent
with the NRC's general practice of treating that information as
classified Restricted Data or National Security Information. The
revised proposed rule text has been changed to provide clarity.
Comment: One commenter recommended that changes to Sec. Sec.
76.115(d) and 76.117(c) should be deleted from the revised proposed
rule because documents transmitted to gaseous diffusion plants (GDP) by
the NRC are protected as classified material and because the classified
matter protection program at each GDP already meets or exceeds the
protection requirements for SGI, both current and proposed. Therefore,
the commenter believes that the current programs at the GDPs provide
for adequate protection of sensitive information, that application of
the proposed SGI requirements to the GDPs will cause the expenditure of
resources with little additional protection of sensitive information,
and that, therefore, the proposed revision to Sec. Sec. 76.115(d) and
76.117(c) is not necessary. Two commenters suggest that Sec. Sec.
76.115 and 76.117 should refer to Sec. Sec. 73.21 and 73.23, not Sec.
73.22.
Response: The NRC Staff believes that the proper category for
security-related information at the GDPs is SGI. While the GDPs are
protecting their security plans and other related documents as
classified material, other persons that might obtain the information
would have no obligation to protect the security-related information as
SGI or as classified material. The NRC does not believe that protection
of the security-related information as proprietary under Sec. 2.390
provides adequate protection, particularly if a third party were to
somehow obtain the information. The GDPs may continue to protect the
security-related information covered by the rule as classified
material, however, the information should be properly marked as SGI.
This is consistent with the treatment of similar information for part
70 licensees. No changes to the revised proposed rule text are
necessary.
Comment: One commenter proposed that Sec. 76.113 be revised to
specify whether NRC certificate holders should protect DOE's
Unclassified Controlled Nuclear Information (UCNI) information to a
level equivalent to SGI or SGI-M. The commenter supports protection of
UCNI to an SGI-equivalent level.
Response: Section 76.133 has been changed in the revised proposed
rule to make it clear that the information would be protected in
accordance with DOE requirements.
Part 150 Exemptions and Continued Regulatory Authority in Agreement
States and in Offshore Waters Under Section 274
Comment: One commenter suggested that a provision be added to Sec.
150.15 to indicate that persons in Agreement States remain under the
jurisdiction of the NRC's regulations for control of SGI, as the
current rule by its terms only provides that persons in Agreement
States remain under the jurisdiction of NRC regulations for control of
SGI-M, not SGI. The commenter recommends that the NRC should retain
full authority over all SGI regulations and therefore recommends that
Sec. 150.15(a)(9) be revised in the final rule to include Sec. 73.22.
Response: There are no Agreement State licensees that would possess
SGI, only SGI-M. However, the NRC has added Sec. 73.22 to the revised
proposed rule to cover the possibility that an Agreement State licensee
in the future might need to possess SGI.
Other or Related Issues
Comment: One commenter suggested that although the original
proposed rule states that the purpose of the rule is to ``[e]xpand the
types of security information covered by the definition of SGI in Sec.
73.21 to include access authorization for background screening'' there
is no associated requirement that can be found in either Sec. Sec.
73.22 or 73.23 for background screening information to be protected as
SGI. Another commenter noted that it would fully support changes in
regulations on SGI that would preserve access authorizations for
appropriate persons when needed, as
[[Page 64027]]
well as allow union leadership access to applicable safeguarded
information.
Response: The commenter is correct about the lack of an explicit
requirement in either Sec. Sec. 73.22 or 73.23 for ``access
authorization for background screening.'' Detailed background screening
requirements for determining trustworthiness and reliability are set
forth in a licensee's or an applicant's composite physical security
plan, which is included in Sec. Sec. 73.22(a)(1)(i) and 73.23(a)(1)(i)
as a type of SGI.
As to the second comment, authorization for access to SGI always
considers need because one criterion for granting such access is an
established ``need-to-know''. The revised proposed rule preserves the
application of the ``need to know'' criterion as a requirement in
Sec. Sec. 73.22(b) and 73.23(b). The issue of access to SGI by agents
representing employees of NRC licensees in employment-related
grievances has previously been addressed in response to an earlier
comment on that subject.
Comments on Information Collection Requirements
Comment: The Office of Management and Budget (OMB) received two
comment letters on the proposed information collection requirements
associated with Sec. Sec. 73.21, 73.22, and 73.23. An industry
commenter stated that the estimate of the total number of hours needed
annually to complete the requirement or request (5,926 or an average of
nine hours per recordkeeper) is incorrect. The commenter estimates that
initially thousands of hours will be required of each recordkeeper to
review and mark the additional SGI or SGI-M documents as required in
Sec. Sec. 73.22(a)(1)(xii) and 73.23(a)(1)(x). In addition, the
ongoing requirement of the original proposed rule would also exceed
nine hours per recordkeeper.
Response: The average number of hours that would be needed annually
to complete the information collection requirement in the original
proposed rule of 9 hours per respondent was an average that covered a
wide range of entities from nuclear power reactors to irradiators. The
calculation of the 9 hours accounted for the range of those affected by
the information collection requirement by assuming larger entities
would have a larger number of documents to mark than smaller entities.
The average burden of 9 hours seems low because there are many more
smaller entities in the calculation than larger entities. The burden
for power reactors, including implementation and ongoing burden, was
approximately 26 hours annually for each power reactor site. It is
expected that the information collection burdens for the revised
proposed rule will change to reflect the requirements in the revised
rule.
Comment: The commenter also disagreed with the following statement
in the Abstract portion of the Paperwork Reduction Act Statement in the
Federal Register notice for the original proposed rule: ``The proposed
amendments would be consistent with Commission practices reflected in
previously issued orders and advisories.'' According to the commenter,
this statement is incorrect because the NRC has not previously directed
that all of the information specified in proposed 10 CFR 73.22 be
protected as SGI.
Response: The original proposed amendments reflected Commission
practices set forth in previously issued orders and advisories, results
of the Commission's comprehensive review of security policies and
requirements, and comments received in the original proposed
rulemaking. Any increased information collection burdens associated
with the revised proposed amendments will be accounted for in the
calculation of the burden estimate in a new OMB clearance package.
Comment: A commenter suggested that eliminating portion marking
requirements for documents containing SGI, and allowing the entire
document to be marked as SGI, was a way to minimize the information
collection burden.
Response: Under Sec. Sec. 73.22(d)(3) and 73.23(d)(3), portion
marking would only be required for transmittal documents for
correspondence with the NRC. For example, cover letters that transmit a
security plan or license application are required to be portion marked,
but the attached plan or application is not. The burden associated with
portion marking these documents is small, and would be outweighed by
the benefit of being able to make correspondence with the NRC publicly
available.
Comment: A commenter provided two burden estimates for nuclear
power reactor implementation of the original proposed rule. The first
estimate assumed that the commenter's ``comments or similar
clarifications'' would not be accounted for in the final rule. The
second estimate assumed the commenter's ``comments or similar
clarifications'' would be accounted for in the final rule. The
commenter concluded that the estimates showed a ``great and expansive
potential for misinterpretation'' of the original proposed rule.
Response: The NRC has revised the original proposed rule language
so that potential for misinterpretation would be minimized. The NRC has
revised the number of recordkeepers in the OMB clearance package
associated with power reactors from 104 to 64. The decrease in
recordkeepers reflects multiple reactors at one site sharing SGI
documents. The NRC has not included the cost of a dedicated copy
machine and dedicated computers for reproducing and processing SGI
documents. These costs are not requirements of the revised proposed
rule and therefore will not be included in the OMB clearance package.
Comment: One commenter requested that an accurate regulatory
analysis and backfit analysis be completed and made available for
public comment before the rule is finalized.
Response: The regulatory analysis for the original proposed rule
was available for public comment. It has been revised where appropriate
in response to those comments and is being made available for comment
with this revised proposed rule. A backfit analysis is not required
because the requirements of this revised proposed rule that are not in
the current 10 CFR 73.21 are being proposed as a matter of adequate
protection.
Comment: A commenter requested that the NRC develop a rulemaking
associated with the transportation of certain types and quantities of
radioactive materials with the DOT.
Response: A coordinated rulemaking with the DOT is not possible
given the expedited rulemaking required for the protection of the
common defense and security.
Comment: A public meeting was requested by industry to ensure that
the NRC staff understands certain concerns, such as the impacts on
licensees of implementation of the rule, due to the large number of
documents and the breadth of information held by a greater number of
licensees.
Response: The expedited rulemaking schedule did not allow the NRC
time to hold a public meeting. However, NRC staff had several telephone
conversations with the commenter in order to understand the commenter's
concerns regarding the OMB clearance package and the regulatory
analysis.
Comments on Regulatory Analysis
Comment: One comment stated that the full-compliance baseline
assumption in the main analysis of the regulatory analysis is incorrect
because it is assumed that all licensee costs were incurred under
Commission orders that were never imposed and that this does not
account for licensee costs incurred under the rule. In addition, under
the ``Pre-Order Analysis'' in the regulatory analysis, the period of
compliance is
[[Page 64028]]
assumed to be ten years. This time period is too short given the
perpetual nature of the rule.
Response: The NRC concurs with the comment that the full-compliance
baseline assumption of the main analysis does not capture the costs
associated with the rule that have not already been incurred under the
current regulation at 10 CFR 73.21 or under Commission orders.
Accordingly, the regulatory analysis has been revised to capture these
costs under the main analysis. The NRC also concurs that the assumed
ten year period of compliance is not long enough for some licensees,
such as nuclear power reactors. Therefore, the NRC has calculated the
annual costs for nuclear power reactors over a 33-year period. This is
the approximate length of plant life remaining for power reactors
assuming 100 percent license renewal.
Comment: A commenter stated that the assertion in the regulatory
analysis that the original proposed rule would increase public
confidence in the NRC and its licensees is not supported by data, nor
is there a basis for such a subjective judgment.
Response: In response to the comment that there is no basis for the
qualitative benefit of increased public confidence resulting from the
revised proposed rule, the NRC has revised the regulatory analysis to
exclude either a qualitative value or impact related to public
confidence in the NRC or its licensees.
Comment: Another comment on the regulatory analysis is that the
backfit analysis in Section XIV only considers the ``main'' analysis
and therefore does not consider the perpetual and substantial costs to
licensees associated with the rule.
Response: A backfit analysis is not required because the
requirements of this rule that are not in the current 10 CFR 73.21 are
being proposed as a matter of adequate protection.
Comment: A commenter suggested that the rule be delayed until an
accurate regulatory analysis and backfit analysis are completed.
Response: The NRC believes that the revised regulatory analysis is
an accurate analysis of the values and impacts associated with the
revised proposed rule. The original regulatory analysis was available
for public comment and has been revised where appropriate in response
to comments. As stated above, a backfit analysis is not required.
Comment: The regulatory analysis should consider the actual
substantial cost of implementing the rule and should also quantify the
need for SGI-M under Sec. 73.23.
Response: The regulatory analysis accounts for the costs of
implementing the revised proposed rule. Assigning a quantitative value
to the need for SGI-M under Sec. 73.23 is not possible. However, as
discussed in the regulatory analysis, there are substantial qualitative
benefits associated with protecting SGI-M under Sec. 73.23.
C. Section-by-Section Analysis
Table 1.--Changes to the Original Proposed Rule Text and Explanation of
Changes
[Additional details regarding the changes may be found in the responses
to comments.]
------------------------------------------------------------------------
Changes from the
10 CFR section original proposed Explanation of
rule text changes
------------------------------------------------------------------------
2.4......................... A new definition of A definition of
Safeguards Safeguards
Information is Information has
added to Sec. been added to this
2.4: Safeguards section in the
Information means revised proposed
information not rule because the
classified as term is used in
National Security this part. This
Information or definition also
Restricted Data appears in Sec.
which specifically 73.2.
identifies a
licensee's or
applicant's
detailed control
and accounting
procedures for the
physical protection
of special nuclear
material in
quantities
determined by the
Commission through
order or regulation
to be significant
to the public
health and safety
or the common
defense and
security; detailed
security measures
(including security
plans, procedures,
and equipment) for
the physical
protection of
source, byproduct,
or special nuclear
material in
quantities
determined by the
Commission through
order or regulation
to be significant
to the public
health and safety
or the common
defense and
security; security
measures for the
physical protection
and location of
certain plant
equipment vital to
the safety of
production or
utilization
facilities; and any
other information
within the scope of
Section 147 of the
Atomic Energy Act
of 1954, as
amended, the
unauthorized
disclosure of
which, as
determined by the
Commission through
order or
regulation, could
reasonably be
expected to have a
significant adverse
effect on the
health and safety
of the public or
the common defense
and security by
significantly
increasing the
likelihood of
sabotage or theft
or diversion of
source, by product,
or special nuclear
material.
2.336(f)(1)................. The following This paragraph is
paragraph is added added to the
to Sec. 2.336, revised proposed
``General rule in response to
discovery.'' ``In comments regarding
the event of a discovery of
dispute over Safeguards
disclosure of Information in NRC
documents and adjudicatory
records including proceedings.
Safeguards Section 2.336(f)(1)
Information applies only in a
referred to in dispute over
Sections 147 and disclosure of
181 of the Atomic Safeguards
Energy Act, as Information. In the
amended, the absence of a
presiding officer dispute over
may issue an order disclosure,
requiring participants in an
disclosure if-- adjudicatory
``[the requirements proceeding may
in Sec. exchange
2.336(f)(1)(i) information,
through (iv) are including
met]. Safeguards
Information.
However, such
disclosures would
be subject to a
protective order
issued by the
presiding officer
of the proceeding
to protect against
the unauthorized
disclosure of the
information.
[[Page 64029]]
2.336(f)(1)(i).............. The following This paragraph makes
paragraph is added: clear that: (1)
``The presiding ``Need to know,''
officer finds that as defined in Sec.
the individual 73.2, applies in
seeking access to NRC adjudicatory
Safeguards proceedings, and
Information to (2) the presiding
participate in an officer of the
NRC adjudication proceeding makes
has the requisite the ``need to
``need to know'', know''
as defined in Sec. determination for
73.2;'' access to SGI in a
dispute over the
``need to know''
determination. In
other words, access
to Safeguards
Information always
requires a ``need
to know.'' In the
specific instance
of a dispute over
``need to know'' in
an NRC adjudicatory
proceeding, the
presiding officer
makes the ``need to
know''
determination as
defined in Sec.
73.2.
2.336(f)(1)(ii)............. The following This paragraph
paragraph is added: requires that
``The individual individuals seeking
has undergone an access to
FBI criminal Safeguards
history check, Information in
unless exempt under order to
Sec. Sec. participate in an
73.22(b)(3) or NRC adjudicatory
73.23(b)(3), as proceeding must
applicable, by undergo an FBI
submitting criminal history
fingerprints to the check, including
NRC Office of fingerprinting,
Administration, unless they are
Security Processing exempt from this
Unit, Mail Stop T- requirement under
6E46, U.S. Nuclear Sec. Sec.
Regulatory 73.22(b)(3) or
Commission, 73.23(b)(3). Those
Washington DC 20555- provisions cross-
0001, and otherwise reference Sec.
following the 73.59, which lists
procedures in Sec. categories of
73.57(d) for individuals who are
submitting and exempt from the FBI
processing criminal history
fingerprints. and background
However, before an check requirements
adverse for access to
determination by Safeguards
the NRC Office of Information by
Administration on virtue of their
an individual's occupational
criminal history status. This
check, the paragraph also
individual shall be extends the
afforded the protections
protections of Sec. provided by Sec.
73.57;'' 73.57 to
participants in NRC
adjudicatory
proceedings before
an adverse
determination is
made by the NRC
Office of
Administration on
their criminal
history check.
2.336(f)(1)(iii)............ The following This paragraph
paragraph is added: requires that
``The NRC Office of individuals seeking
Administration has access to
found, based upon a Safeguards
background check, Information in
that the individual order to
is trustworthy and participate in an
reliable, unless NRC adjudicatory
exempt from the proceeding must
background check undergo a
requirement background check
pursuant to Sec. for trustworthiness
Sec. 73.22(b)(3) and reliability
or 73.23(b)(3), as unless exempt from
applicable. that requirement
However, before under Sec. Sec.
adverse 73.22(b)(3) or
determination by 73.23(b)(3), which
the NRC Office of cross-reference
Administration on Sec. 73.59. This
an individual's paragraph extends
background check the protections
for trustworthiness provided by Sec.
and reliability, 73.57 to
the individual participants in NRC
shall be afforded adjudicatory
the protections proceedings before
provided by Sec. an adverse
73.57.'' determination by
the NRC Office of
Administration on
their background
checks for
trustworthiness and
reliability.
2.336(f)(1)(iv)............. Participants, This paragraph
potential establishes
witnesses, and detailed procedures
attorneys for whom for participants,
the NRC Office of potential
Administration has witnesses, and
made a final attorneys to appeal
adverse a final adverse
determination on determination by
trustworthiness and the NRC Office of
reliability may Administration on
request the an individual's
presiding officer trustworthiness and
to review the reliability
adverse determination for
determination. The access to SGI.
request may also Participants,
seek to have the potential
Chairman of the witnesses, and
Atomic Safety and attorneys may
Licensing Board request that the
Panel designate an Chairman of the
officer other than Atomic Safety and
the presiding Licensing Board
officer of the Panel designate an
proceeding to officer other than
review the adverse the proceeding
determination. For officer of the
purposes of review, proceeding to
the adverse review the NRC
determination must Office of
be in writing and Administration's
set forth the adverse
grounds for the determination.
determination. The In addition, this
request for review paragraph contains
shall be served on the following
the NRC staff and requirements:
may include Documentation by
additional the Office of
information for Administration of
review by the an adverse
presiding officer. determination and
The request must be the time periods
filed within 15 for filing and
days after receipt service of the
of the adverse request for review,
determination by and issuance by the
the individual presiding officer
against whom the of a decision on
adverse the request for
determination has review. The
been made. Within standard for
10 days of receipt reversal by the
of the request for presiding officer
review and any of the Office of
additional Administration's
information, the adverse
NRC staff will file determination is a
a response finding that the
indicating whether determination
the request and constitutes an
additional abuse of
information has discretion.
caused the NRC
Office of
Administration to
reverse its adverse
determination. The
presiding officer
may reverse the
Office of
Administration's
final adverse
determination only
if the officer
finds, based on all
the information
submitted, that the
adverse
determination
constitutes an
abuse of
discretion. The
presiding officer's
decision must be
rendered within 15
days after receipt
of the staff filing
indicating that the
request for review
and additional
information has not
changed the NRC
Office of
Administration's
adverse
determination.
2.336(f)(2)................. The following This provision
paragraph is added: authorizes the
``The presiding presiding officer
officer may include to prescribe terms
in an order any and conditions
protective terms necessary and
and conditions appropriate to
(including ensure that
affidavits of non- disclosure of
disclosure) as may Safeguards
be necessary and Information is
appropriate to limited to
limit the authorized
disclosure to individuals.
parties in the
proceeding, to
interested States
and other
governmental
entities
participating under
Sec. 2.315(c),
and to their
qualified witnesses
and counsel.''
[[Page 64030]]
2.336(f)(3)................. The following This paragraph
paragraph is added: extends
``When Safeguards requirements for
Information the protection of
protected from Safeguards
unauthorized information in Sec.
disclosure under Sec. 73.21,
Section 147 of the 73.22, and 73.23,
Atomic Energy Act, as applicable, to
as amended, is anyone in
received and possession or
possessed by a receipt of
participant other Safeguards
than the NRC staff, Information.
it must also be
protected according
to the requirements
of Sec. 73.21 and
the requirements of
Sec. 73.22 or
Sec. 73.23 of
this chapter, as
applicable.''
2.336(f)(4)................. The following This paragraph
paragraph is added: authorizes the
``The presiding presiding officer
officer may also of the proceeding
prescribe to prescribe
additional measures in
procedures to addition to those
effectively described in Sec.
safeguard and Sec. 73.21,
prevent disclosure 73.22, and 73.23,
of Safeguards as applicable, to
Information to prevent the
unauthorized disclosure of
persons with Safeguards
minimum impairment Information to
of the procedural unauthorized
rights which would individuals.
be available if
Safeguards
Information were
not involved.''
2.336(f)(5)................. The following This paragraph
paragraph is added: authorizes civil
``In addition to penalties for
any other sanction disclosure of
that may be imposed Safeguards
by the presiding Information in
officer for violation of a
violation of an presiding officer's
order issued protective order or
pursuant to this orders.
paragraph,
violation of an
order pertaining to
the disclosure of
Safeguards
Information
protected from
disclosure under
Section 147 of the
Atomic Energy Act,
as amended, may be
subject to a civil
penalty imposed
under Sec.
2.205.''
2.336(f)(6)................. The following This paragraph
paragraph is added: authorizes criminal
``For the purpose penalties for
of imposing the disclosure of
criminal penalties Safeguard
contained in Information in
Section 223 of the violation of a
Atomic Energy Act, presiding officer's
as amended, any protective order or
order issued orders.
pursuant to this
paragraph with
respect to
Safeguards
Information is
considered to be an
order issued under
Section 161b of the
Atomic Energy
Act.''
2.705(c)(2)................. The following This paragraph is
paragraph is added added to the
to Sec. 2.705, revised proposed
``Discovery--additi rule in response to
onal methods.'' comments regarding
``In the case of discovery of SGI in
documents and NRC adjudicatory
records including proceedings. The
Safeguards paragraph
Information authorizes the
referred to in presiding officer
Sections 147 and to issue an order
181 of the Atomic requiring
Energy Act, as disclosure of
amended, the certain documents
presiding officer and records,
may issue an order including
requiring Safeguards
disclosure if--''. Information,
provided that the
requirements noted
and discussed below
are met.
2.705(c)(2)(i).............. The following This provision makes
paragraph is added: clear that a ``need
``The presiding to know,'' as
officer finds that defined in Sec.
the individual 73.2, applies to an
seeking access to individual seeking
Safeguards access to SGI in
Information in order to
order to participate in an
participate in an NRC proceeding. The
NRC proceeding has presiding officer
the requisite `` of the proceeding
need to know,'' as makes the ``need to
defined in Sec. know''
73.2''; determination for
access to SGI in a
dispute over the
``need to know''
determination. In
other words, access
to Safeguards
Information always
require a ``need to
know.'' In the
specific instance
of a dispute over
the ``need to
know'' in an NRC
adjudicatory
proceeding, the
presiding officer
makes the ``need to
know''
determination as
defined in Sec.
73.2.
2.705(c)(2)(ii)............. The following This paragraph
paragraph is added: requires that
``The individual individuals seeking
has undergone an access to
FBI criminal Safeguards
history check, Information in
unless exempt under order to
Sec. Sec. participate in an
73.22(b)(3) or NRC adjudicatory
73.23(b)(3), as proceeding must
applicable, by under go an FBI
submitting criminal history
fingerprints to the check, including
NRC Office of fingerprinting,
Administration, unless they are
Security Processing exempt from this
Unit, Mail Stop T- requirement under
6E46, U.S. Nuclear Sec. Sec.
Regulatory 73.22(b)(3) or
Commission, 73.23(b)(3). Those
Washington, DC provisions cross-
20555-0001, and reference Sec.
otherwise follow 73.59, which lists
the procedures in categories of
Sec. 73.57(d) for individuals who are
submitting and exempt from the FBI
processing criminal history
fingerprints. and background
However, before an check requirements
adverse for access to
determination by Safeguards
the NRC Office of Information by
Administration on virtue of their
an individual occupational
criminal history status. This
check, the paragraph also
individual shall be extends the
afforded the protections
protections of provided by Sec.
73.57; and'' 73.57 to
participants in NRC
adjudicatory
proceedings before
an adverse
determination is
made by the NRC
Office of
Administration on
their FBI criminal
history check.
[[Page 64031]]
2.705(c)(2)(iii)............ The following This paragraph
paragraph is added: provides that
``NRC Office of individuals seeking
Administration has access to
found, based upon a Safeguards
background check, Information in
that the individual order to
is trustworthy and participate in an
reliable, unless NRC adjudicatory
exempt Sec. Sec. proceeding must
73.22(b)(3) or under go a
73.23(b)(3) background check
However, before an for trustworthiness
adverse and reliability
determination by unless exempt from
the NRC Office of this requirement
Administration on under Sec. Sec.
an individual's 73.22(b)(3) or
background check 73.23(b)(3). Those
for trustworthiness provisions cross-
and reliability, reference Sec.
the individual 73.59, which lists
shall be afforded categories of
the protections individuals who are
provided by Sec. exempt from the FBI
73.57.'' criminal history
check and
background check
requirements for
access to SGI by
virtue of their
occupational
status. This
paragraph also
extends the
protections
provided by Sec.
73.57 before an
adverse
determination by
the NRC Office of
Administration on a
background check
for trustworthiness
and reliability.
2.705(c)(2)(iv)............. The following This paragraph
paragraph is added: establishes
``An individual detailed procedures
seeking to for an individual
participate in an seeking access to
NRC adjudicatory SGI in order to
proceeding for whom participate in an
the NRC Office of NRC adjudicatory
Administration has proceeding to
made a final appeal a final
adverse adverse
determination on determination by
trustworthiness and the NRC Office of
reliability may Administration on
request the trustworthiness and
presiding officer reliability for
to review the access to SGI. The
adverse paragraph contains
determination. For the following
purposes of review, requirements:
the adverse Documentation by
determination must the Office of
be in writing and Administration of
set forth the an adverse
grounds for the determination and
determination. The the time periods
request for review for filing and
shall be served on service of the
the NRC staff and request for review,
may include responding to the
additional request, and for
information for issuance of a
review by the decision by the
presiding officer. presiding officer
The request must be on a request for
filed within 15 review. The
days after receipt presiding officer
of the adverse may reverse the
determination by Office of
the individual Administration's
against whom the final adverse
adverse determination only
determination has if the officer
been made. Within finds, based on all
10 days of receipt the information
the request for submitted, that the
review and any adverse
additional determination
information, the constitutes an
NRC staff will file abuse of
a response discretion.
indicating whether
the request and
additional
information has
caused the NRC
Office of
Administration to
reverse its adverse
determination. The
presiding officer
may reverse the
Office of
Administration's
final adverse
determination only
if the officer
finds, based on all
the information
submitted, that the
adverse
determination
constitutes an
abuse of
discretion. The
presiding officer's
decision must be
rendered within 15
days after receipt
of the staff filing
indicating that the
request for review
and additional
information has not
changed the NRC
Office of
Administration's
adverse
determination.''
2.705(c)(3)................. The following This provision
paragraph is added: authorizes the
``The presiding presiding officer
officer may include to prescribe terms
in an order any and conditions
protective terms necessary and
and conditions appropriate to
(including ensure that
affidavits of non- disclosure of
disclosure) as may Safeguards
be necessary and Information is
appropriate to limited to
limit the authorized
disclosure to individuals.
parties in the
proceeding, to
interested States
and other
governmental
entities
participating under
Sec. 2.315(c),
and to their
qualified witnesses
and counsel.''
2.705(c)(4)................. The following This paragraph
paragraph is added: extends
``When Safeguards requirements for
Information protection of
protected from Safeguards
unauthorized Information in Sec.
disclosure under Sec. 73.21,
Section 147 of the 73.22, and 73.23,
Atomic Energy Act, as applicable, to
as amended, is anyone in
received and possession of
possessed by a Safeguards
party other than Information.
the NRC staff, it
must also be
protected according
to the requirements
of Sec. 73.21 and
the requirements of
Sec. 73.22 or
Sec. 73.23 of
this chapter, as
applicable.''
2.705(c)(5)................. The following This paragraph
paragraph is added: authorizes the
``The presiding presiding officer
officer may also of the proceeding
prescribe to prescribe
additional measures in
procedures to addition to those
effectively described in Sec.
safeguard and Sec. 73.21,
prevent disclosure 73.22, and 73.23,
of Safeguards as applicable, to
Information to prevent disclosure
unauthorized of Safeguards
persons with Information to
minimum impairment unauthorized
of the procedural individuals.
rights which would
be available if
Safeguards
Information were
not involved.''
2.705(c)(6)................. The following This paragraph
paragraph is added: authorizes civil
``In addition to penalties for
any other sanction disclosure of
that may be imposed Safeguards
by the presiding Information in
officer for violation of a
violation of an presiding officer's
order issued protective order or
pursuant to this orders.
paragraph,
violation of an
order pertaining to
the disclosure of
Safeguards
Information
protected from
disclosure under
Section 147 of the
Atomic Energy Act,
as amended, may be
subject to a civil
penalty imposed
under Sec.
2.205.''
[[Page 64032]]
2.705(c)(7)................. The following This paragraph
paragraph is added: authorizes criminal
``For the purpose penalties for
of imposing the disclosure of
criminal penalties Safeguards
contained in Information in
Section 223 of the violation of a
Atomic Energy Act, presiding officer's
as amended, any protective order or
order issued orders.
pursuant to this
paragraph with
respect to
Safeguards
Information is
considered to be an
order issue under
section 161b of the
Atomic Energy
Act.''
2.709(f).................... This subsection of This paragraph has
Sec. 2.709, been revised in
``Discovery against response to
the NRC staff'' has comments regarding
been revised and discovery of SGI in
subdivided as noted NRC adjudicator
below. proceedings. It has
been subdivided in
the revised
proposed rule for
clarity. This
paragraph continues
to apply to
discovery documents
and records
including
Safeguards
Information,
against the NRC
staff.
2.709(f)(1)................. This paragraph This paragraph sets
reads: ``In the forth the
case of requested circumstances in
documents and which Sec.
records, (including 2.709(f) applies.
Safeguards As in the original
Information proposed rule, Sec.
referred to in 2.709(f)
Section 147 and 181 establishes
of the Atomic procedures for the
Energy Act, as discovery against
amended) exempt the NRC staff of
from disclosure documents and
under Sec. 2.390, records, including
the presiding Safeguards
officer may issue Information, which
an order disclosure are exempt from
to the Executive disclosure under
Director of Sec. 2.390,
Operations or ``Public
delegate of the inspections,
Executive Director exemptions,
for Operations, to requests for
produce the withholding.''
documents or
records (or any
other order issued
ordering
productions of the
document or
records) if--''
2.709(f)(1)(i).............. The following is This paragraph makes
added: ``The clear that: (1)
presiding officer ``Need to know,''
finds that the as defined in Sec.
individual seeking 73.2, applies in
access to NRC adjudicatory
Safeguards proceedings, and
Information to (2) the presiding
participate in an officer of the
NRC adjudication proceeding makes
has the requisite the ``need to
``need to know'', know''
as defined in Sec. determination for
73.2;'' The phrase access to SGI in a
``but whose dispute over the
disclosure is found ``need to know''
by the presiding determination. In
officer to be other words access
necessary to a to Safeguards
proper decision in Information always
the proceeding'' requires a ``need
has been deleted to know.'' In the
from Sec. specific instance
2.709(f). of a dispute over
``need to know'' in
an NRC adjudicatory
proceeding, the
presiding officer
makes the ``need to
know''
determination as
defined in Sec.
73.2.
2.709(f)(1)(ii)............. The following This paragraph makes
paragraph is added: clear that
``The individual individuals seeking
has undergone an access to
FBI criminal Safeguards
history check, Information in
unless exempt Sec. order to
Sec. 73.22(b)(3) participate in an
or Sec. NRC adjudicatory
73.23(b)(3), by proceeding must
submitting undergo an FBI
fingerprints to the criminal history
NRC Office of check, including
Administration, fingerprinting,
Security Processing unless they are
Unit, Mail Stop T- exempt from this
6E46, U.S. Nuclear requirement under
Regulatory Sec. Sec.
Commission, 73.22(b)(3) or
Washington DC 20555- 73.23(b)(3), which
0001, and otherwise cross-reference
following the Sec. 73.59.
procedures in Sec. Section 73.59 lists
73.57(d) for categories of
submitting and individuals who are
processing exempt from the FBI
fingerprints. criminal history
However, before an and background
adverse check requirements
determination by for access to
the NRC Office of Safeguards
Administration on Information by
an individual's virtue of their
criminal history occupational
check the status. This
individual shall be paragraph extends
afforded the the protections
protections provided by Sec.
provided by Sec. 73.57 to
73.57; and'' participants in NRC
adjudications
before an adverse
determination by
the NRC Office of
Administration on
their FBI criminal
history check.
2.709(f)(1)(iii)............ The following This paragraph makes
paragraph is added: clear that
``The NRC Office of individuals seeking
Administration access to
finds, based upon a Safeguards
background check, Information in
that the individual order to
is trustworthy and participate in an
reliable, unless NRC adjudicatory
exempt under Sec. proceeding must
Sec. 73.22(b)(3) undergo a
or 73.23(b)(3), as background check
applicable. for trustworthiness
However, before an and reliability
adverse unless exempt from
determination by this requirement
the NRC Office of under Sec. Sec.
Administration on 73.22(b)(3) or
an individual's 73.23(b)(3), as
background check applicable. These
for trustworthiness provisions cross-
and reliability, reference Sec.
the individual 73.59, which lists
shall be afforded categories of
the protections individuals who are
provided by Sec. exempt from the FBI
73.57.'' criminal history
check and
background check
requirements for
access to SGI by
virtue of their
occupational
status. This
paragraph extends
the protections
provided by Sec.
73.57 to
participants in NRC
adjudications
before an adverse
determination by
the NRC Office of
Administration on
their background
checks.
[[Page 64033]]
2.709(f)(1)(iv)............. The following This paragraph
paragraph is added: establishes
Participants, detailed procedures
potential for participants,
witnesses, and potential
attorneys for whom witnesses, and
the NRC Office of attorneys to appeal
Administration has a final adverse
made a final determination by
adverse the NRC Office of
determination on Administration on
trustworthiness and an individual's
reliability may trustworthiness and
request the reliability
presiding officer determination for
to review the access to SGI.
adverse Participants,
determination. The potential
request may also witnesses, and
seek to have the attorneys may
Chairman of the request that the
Atomic Safety and Chairman of the
Licensing Board Atomic Safety and
Panel designate an Licensing Board
officer other than Panel designate an
the presiding officer other than
officer of the the proceeding
proceeding to officer of the
review the adverse proceeding to
determination. For review the NRC
purposes of review, Office of
the adverse Administration's
determination must adverse
be in writing and determination.
set forth the In addition, this
grounds for the paragraph contains
determination. The the following
request for review requirements:
shall be served on Documentation by
the NRC staff and the Office of
may include Administration of
additional an adverse
information for determination and
review by the the time periods
presiding officer. for filing and
The request must be service of the
filed within 15 request for review,
days after receipt and issuance by the
of the adverse presiding officer
determination by of a decision on
the individual the request for
against whom the review. The
adverse standard for
determination has reversal by the
been made. Within presiding officer
10 days of receipt of the NRC Office
of the request for of Administration's
review and any final adverse
additional determination is a
information, the finding that the
NRC staff will file determination
a response constitutes an
indicating whether abuse of
the request and discretion.
additional
information has
caused the NRC
Office of
Administration to
reverse its adverse
determination. The
presiding officer
may reverse the
Office of
Administration's
final adverse
determination only
if the officer
finds, based on all
the information
submitted, that the
adverse
determination
constitutes an
abuse of
discretion. The
presiding officer's
decision must be
rendered within 15
days after receipt
of the staff filing
indicating that the
request for review
and additional
information has not
changed the NRC
Office of
Administration's
adverse
determination.
2.709(f)(2)................. The following This provision
paragraph is added: authorizes the
``The presiding presiding officer
officer may include to prescribe terms
in an order any and conditions
protective terms necessary and
and conditions appropriate to
(including ensure that
affidavits of non- disclosure of
disclosure) as may Safeguards
be necessary and Information is
appropriate to limited to
limit the authorized
disclosure to individuals.
parties in a
proceeding, to
interested States
and other
governmental
entities
participating under
Sec. 2.315(c),
and to their
qualified witnesses
and counsel.''
2.709(f)(3)................. The following This paragraph
paragraph is added: extends
``When Safeguards requirements for
Information protection of
protection from Safeguards
unauthorized Information in Sec.
disclosure under Sec. 73.21,
Section 147 of the 73.22, and 73.23,
Atomic Energy Act, as applicable, to
as amended, is anyone in
received and possession of
possessed by a Safeguards
participant other Information.
than the NRC staff,
it must also be
protected according
to the requirements
of Sec. 73.21 and
the requirements of
Sec. 73.22 or
Sec. 73.23 of
this chapter, as
applicable.''
2.709(f)(4)................. The following This paragraph
paragraph is added: authorizes the
``The presiding presiding officer
officer may also of the proceeding
prescribe to prescribe
additional measures in
procedures to addition to those
effectively described in Sec.
safeguard and Sec. 73.21,
prevent disclosure 73.22, and 73.23,
of Safeguards as applicable to
Information to prevent disclosure
unauthorized of Safeguards
persons with Information to
minimum impairment unauthorized
of the procedural individuals.
rights which would
be available if
Safeguards
Information were
not involved.''
2.709(f)(5)................. The following This paragraph
paragraph is added: authorizes civil
``In addition to penalties for
any other sanction disclosure of
that may be imposed Safeguards
by the presiding Information in
officer for violation of a
violation of an presiding officer's
order issued protective order or
pursuant to this orders.
paragraph,
violation of an
order pertaining to
the disclosure of
Safeguards
Information
protected from
disclosure under
Section 147 of the
Atomic Energy Act,
as amended, may be
subject to a civil
penalty imposed
under Sec.
2.205.''
2.709(f)(6)................. The following This paragraph
paragraph is added: authorizes criminal
``For the purpose penalties for
of imposing the disclosure of
criminal penalties Safeguards
contained in Information in
Section 223 of the violation of a
Atomic Energy Act, presiding officer's
as amended, any protective order or
order issued orders.
pursuant to this
paragraph with
respect to
Safeguards
Information is
considered to be an
order under Section
161b of the Atomic
Energy Act.''
2.1010(b)(6)................ This paragraph of This paragraph is
Sec. 2.1010, revised in response
``Pre-License to comments
application regarding discovery
presiding officer'' of SGI in NRC
has been adjudicatory
reorganized and proceedings. It has
subdivided. The been subdivided for
paragraph begins as clarity. As in Sec.
follows: ``Whether 2.1010(b)(6) of
the material should the original
be disclosed under proposed rule, this
a protective order paragraph
containing such authorizes the Pre-
protective terms License Application
and conditions Presiding Officer
(including to resolve disputes
affidavits of over disclosure of
nondisclosure) as Safeguards
may be necessary Information.
and appropriate to
limit the
disclosure to
potential parties,
interested
government
participants, and
parties in a
proceeding, or to
their qualified
witnesses and
counsel.''
[[Page 64034]]
2.1010(b)(6)(i)............. The following This paragraph
paragraph is added: authorizes the Pre-
``The Pre-License License Application
Application Presiding Officer
Presiding Office to issue an order
may issue an order requiring
requiring disclosure of
disclosure of Safeguards
Safeguards Information if the
Information if--'' requirements in the
subsequent
provisions are met.
2.1010(b)(6)(i)(A).......... The following This paragraph makes
paragraph is added: clear that (1)
``The Pre-License ``need to know'',
Application as defined in Sec.
Presiding Officer 73.2, applies in
finds that the the context of NRC
individual seeking adjudicatory
access to proceedings, and
Safeguards (2) the presiding
Information in officer of the
order to proceeding makes
participate in an the ``need to
NRC adjudication know''
has the requisite determination for
``need to know,'' access to SGI in a
as defined in Sec. dispute over the
73.2''; ``need to know''
determination. In
other words, access
to Safeguards
Information always
requires a ``need
to know.'' In a
dispute over ``need
to know'' in an NRC
adjudicatory
proceeding, the
presiding officer
makes the ``need to
know''
determination as
that term is
defined in Sec.
73.2.
2.1010(b)(6)(i)(B).......... The following This paragraph
paragraph is added: requires that
``The individual individuals seeking
has undergone an access to
FBI criminal Safeguards
history check, Information in
unless exempt under order to
Sec. Sec. participate in an
73.22(b)(3) or NRC adjudicatory
73.23(b)(3), as proceeding must
applicable by undergo an FBI
submitting criminal history
fingerprints to the check, including
NRC Office of fingerprinting,
Administration, unless they are
Security Processing exempt from this
Unit, Mail Stop T- requirement under
6E46, U.S. Nuclear Sec. Sec.
Regulatory 73.22(b) or
Commission, 73.23(b). Those
Washington D.C. provisions cite
20555-0001, and Sec. 73.59, which
otherwise following lists categories of
the procedures in individuals who are
Sec. 73.57(d) for exempt from the FBI
submitting and criminal history
processing check and
fingerprints. background
However, before an requirements for
adverse access to
determination by Safeguards
the NRC Office of Information by
Administration on virtue of their
an individual's occupational
criminal history status. This
check, the paragraph also
individual shall be extends the
afforded the protections
protections of Sec. provided by Sec.
73.57;'' 73.57 to
participants in NRC
adjudications
before an adverse
determination by
the NRC Office of
Administration on
their FBI criminal
history checks.
2.1010(b)(6)(i)(C).......... The following This paragraph makes
paragraph is added: clear that
``A finding by the individuals seeking
NRC Office of access to
Administration, Safeguards
based upon a Information in
background check, order to
that the individual participate in an
is trustworthy and NRC adjudicatory
reliable, unless proceeding must
exempt under Sec. undergo a
Sec. 73.22(b)(3) background check
or 73.23(b)(3), as for trustworthiness
applicable. and reliability
However, before an unless exempt from
adverse this requirement
determination on an under Sec. Sec.
individual's 73.22(b)(3)(b)(3)
background check or 73.23(b)(3).
for trustworthiness Those provisions
and reliability, contain a cross-
the individual reference to Sec.
shall be afforded 73.59, which lists
the protections categories of
provided by Sec. individuals who are
73.57.'' exempt from the FBI
criminal history
check and
background check
requirements for
access to
Safeguards
Information by
virtue of their
occupational
status. This
paragraph extends
the protections
provided by Sec.
73.57 to
participants in NRC
adjudications
before an adverse
determination by
the NRC Office of
Administration on
their background
checks for
trustworthiness and
reliability.
2.1010(b)(6)(i)(D).......... Participants, This paragraph
potential establishes
witnesses, and detailed procedures
attorneys for whom for participants,
the NRC Office of potential
Administration has witnesses, and
made a final attorneys to appeal
adverse a final adverse
determination on determination by
trustworthiness and the NRC Office of
reliability may Administration on
request the an individual's
presiding officer trustworthiness and
to review the reliability
adverse determination for
determination. The access to SGI.
request may also Participants,
seek to have the potential
Chairman of the witnesses, and
Atomic Safety and attorneys may
Licensing Board request that the
Panel designate an Chairman of the
officer other than Atomic Safety and
the presiding Licensing Board
officer of the Panel designate an
proceeding to officer other than
review the adverse the proceeding
determination. For officer of the
purposes of review, proceeding to
the adverse review the NRC
determination must Office of
be in writing and Administration's
set forth the adverse
grounds for the determination. In
determination. The addition, this
request for review paragraph contains
shall be served on the following
the NRC staff and requirements:
may include documentation by
additional the Office of
information for Administration of
review by the an adverse
presiding officer. determination and
The request must be the time periods
filed within 15 for filing and
days after receipt service of the
of the adverse request for review,
determination by responding to the
the individual request, and for
against whom the issuance of a
adverse decision by the
determination has presiding officer.
been made. Within The standard for
10 days of receipt reversal by the
of the request for presiding officer
review and any of the NRC Office
additional of Administration's
information, the final adverse
NRC staff will file determination made
a response by the NRC Office
indicating whether of Administration.
the request and
additional
information has
caused the NRC
Office of
Administration to
reverse its adverse
determination. The
presiding officer
may reverse the
Office of
Administration's
final adverse
determination only
if the officer
finds, based on all
the information
submitted, that the
adverse
determination
constitutes an
abuse of
discretion. The
presiding officer's
decision must be
rendered within 15
days after receipt
of the staff filing
indicating that the
request for review
and additional
information has not
changed the NRC
Office of
Administration's
adverse
determination.
[[Page 64035]]
2.1010(b)(6)(ii)............ The following This provision
provision is added: authorizes the Pre-
``The Pre-License License Application
Application Presiding Officer
Presiding Officer to prescribe terms
may include in an and conditions
order any necessary to insure
protective terms that disclosure of
and conditions Safeguards
(including Information is
affidavits of non- limited to
disclosure) as may authorized
be necessary and individuals.
appropriate to
limit the
disclosure to
parties in the
proceeding, to
interested States
and other
governmental
entities
participating under
Sec. 2.315(c) and
to their qualified
witnesses and
counsel.''
2.1010(b)(6)(iii)........... The following This paragraph
paragraph is added: extends
``When Safeguards requirements for
Information protection of
protected from Safeguards
unauthorized Information in Sec.
disclosure under Sec. 73.21,
Section 147 of the 73.22, and 73.23,
Atomic Energy Act as applicable, to
of 1954, as anyone in
amended, is possession of
received and Safeguards
possessed by a Information.
party other than
the NRC staff, it
must also be
protected according
to the requirement
of Sec. 73.21 and
the requirements of
Sec. 73.22 or
Sec. 73.23 of
this chapter, as
applicable.''
2.1010(b)(6)(iv)............ The following This paragraph
paragraph is added: authorizes the Pre-
``The Pre-License License Application
Application Presiding Officer
Presiding Officer to prescribe
may also prescribe measures in
additional addition to those
procedures as will described in Sec.
effectively Sec. 73.21,
safeguard and 73.22, and 73.23 as
prevent disclosure applicable, to
of Safeguards prevent disclosure
Information to of Safeguards
unauthorized Information to
persons with unauthorized
minimum impairment individuals.
of the procedural
rights which would
be available if
Safeguards
Information were
not involved.''
2.1010(b)(6)(v)............. The following This paragraph
paragraph is added: authorizes civil
``In addition to penalties for
any other sanction disclosure of
that may be imposed Safeguards
by the Pre-License Information in
Application violation of a
Presiding Officer protective order or
for violation of an orders.
order issued
pursuant to this
paragraph,
violation of an
order pertaining to
the disclosure of
Safeguards
Information
protected from
disclosure under
Section 147 of the
Atomic Energy Act
of 1954, as
amended, may be
subject to a civil
penalty imposed
under Sec.
2.205.''
2.1010(b)(6)(vi)............ The following This paragraph
paragraph is added: authorizes criminal
``For the purpose penalties for
of imposing the disclosure of
criminal penalties Safeguards
contained in Information in
Section 223 of the violation of a
Atomic Energy Act protective order or
of 1954, as orders.
amended, any order
issued pursuant to
this paragraph with
respect to
Safeguards
Information is
considered to be an
order under Section
161b of the Atomic
Energy Act of 1954,
as amended.''
30.32(j).................... The following The deletions are
phrases are made to simplify
deleted: ``in the original
quantities proposed rule text
determined by the and make clear that
Commission through applicants must
order or regulation protect all SGI and
to be significant SGI-M, not just
to the public that contained in
health and safety physical security
or the common plans, security
defense and procedures for
security who emergencies, or
prepares a physical guard qualification
security plan, and training
security procedures procedures. The
for emergencies, or addition to the
guard qualification text makes clear
and training that not all
procedures,'' and applicants for a
``the plans, part 30 license
procedures, and would be subject to
other related.'' physical security
The phrase or information
``subject to the security
requirements of requirements.
part 73 of this
chapter'' is added.
30.34(i).................... The following phrase This change conforms
is deleted: this section with
``physical security the requirements of
plans, security Sec. 30.32(j).
procedures for
emergencies, guard
qualification and
training
procedures, and
other related.''
The word ``are'' is
changed to ``is.''
40.31(m).................... A new first sentence This change
is added: ``Each clarifies that
applicant for a applicants for
license for the licenses for the
possession of production of
source material at uranium
a facility for the hexafluoride would
production of be required to
uranium protect security
hexafluoride shall information as SGI
protect Safeguards in accordance with
Information against Sec. Sec. 73.21
unauthorized and 73.22. Other
disclosure in source material
accordance with the licensees must
requirements in protect SGI and SGI-
Sec. Sec. 73.21 M in accordance
and 73.22 of this with Sec. Sec.
chapter, as 73.21, 73.22, and
applicable.'' A new 73.23, as
second sentence is applicable.
added: ``Each
applicant for a
license for source
material subject to
the requirements of
part 73 of this
chapter shall
protect
unauthorized
disclosure in
accordance with the
requirements in
Sec. 73.21 and
the requirements in
Sec. 73.22 or
Sec. 73.23 of
this chapter, as
applicable.''
40.41(h).................... The phrase The change corrects
``physical security a verb tense and
plans, security also simplifies the
procedures for text to make clear
emergencies, guard that applicants
qualification and would be required
training to protect all SGI
procedures, and and SGI-M not just
other related'' is that contained in
removed. The word physical security
``are'' is changed plans, security
to ``is.'' procedures for
emergencies, or
guard qualification
and training
procedures.
50.34(e).................... The section is This change is made
revised to read to simplify the
``Each applicant revised proposed
for a license to rule text and make
operate a clear that
production or applicants would be
utilization required to protect
facility shall all SGI and SGI-M,
protect Safeguards not just that
Information against contained in
unauthorized physical security
disclosure in plans, security
accordance with the procedures for
requirements in emergencies, or
Sec. 73.21 and guard qualification
the requirements in and training
Sec. 73.22 or procedures.
Sec. 73.23 of
this chapter, as
applicable.''
[[Page 64036]]
50.54(v).................... The following phrase This change is to
is deleted: conform with the
``Physical change in Sec.
security, 50.34(e).
safeguards
contingency and
guard qualification
and training plans
and other
related.'' The word
``are'' is changed
to ``is.''
52.17(d).................... The addition of this This change is made
section requires in concert with the
applicants for change to Sec.
early site permits Sec. 52.47 and
under this part to 52.79 to require
protect Safeguards applicants for
Information against standard design
unauthorized certifications and
disclosure in combined licenses
accordance with the to protect SGI from
requirements in unauthorized
Sec. Sec. 73.21 disclosure.
and 73.22 of this
chapter, as
applicable.
60.21(d).................... The word ``as'' is This change is made
deleted. The phrase to simplify the
``the detailed revised proposed
security measures rule text and make
for physical clear that
protection of high- applicants would be
level radioactive required to protect
waste, including all SGI and SGI-M,
the design for not just that
physical contained in
protection, the physical security,
safeguards safeguards
contingency plan, contingency, or
the security guard qualification
organization and training plans.
personnel training The change also
and qualification reflects that
plan, and other applicants under
related security Part 60 would be
information'' is required to protect
replaced with ``and classified
shall protect information.
classified
information in
accordance with the
requirements of
parts 25 and 95 of
this chapter, as
applicable.''
60.42(d).................... The phrase ``the This change conforms
detailed security this section to the
measures for requirements of
physical protection Sec. 60.21(d).
of high-level
radioactive waste,
including the
design for physical
protection, the
safeguards
contingency plan,
the security
organization
personnel training
and qualification
plan, and other
related security
information'' is
replaced with
``Safeguards
Information.'' A
new sentence is
added: ``The
licensee shall
ensure that
classified
information is
protected in
accordance with the
requirements of
parts 25 and 95 of
this chapter, as
applicable.''
63.21(d).................... A cross-reference to This change is made
Sec. 73.23 is in concert with the
added. The word change to part 60
``as'' is deleted. to reflect
The phrase ``the protection of the
detailed security same type of
measures for information for
physical protection part 60 and part 63
of high-level applicants.
radioactive waste,
including the
design for physical
protection, the
safeguards
contingency plan,
and the security
organization
personnel training
and qualification
plan, and other
related Safeguards
Information'' is
replaced with ``as
applicable, and
shall protect
classified
information in
accordance with the
requirements of
parts 25 and 95 of
this chapter, as
applicable.''
63.42(e).................... A cross-reference to This change conforms
Sec. 73.23 is this section to the
added. The phrase requirements of
``the detailed Sec. 63.21(d).
security measures
for physical
protection of high-
level radioactive
waste, including
the design for
physical
protection, the
safeguards
contingency plan,
and security
organization
personnel training
and qualification
plan, and other
related'' is
removed. The phrase
``and shall protect
classified
information in
accordance with the
requirements of
parts 25 and 95 of
this chapter, as
applicable'' is
added.
70.22(l).................... The section is This change is made
revised to read to simplify the
``Each applicant rule text and make
for a license shall clear that all SGI
protect Safeguards and SGI-M would
Information against have to be
unauthorized protected, not just
disclosure in that contained in
accordance with the physical security,
requirements in safeguards
Sec. 73.21 and contingency, or
the requirements of guard qualification
Sec. 73.22 or and training plans.
Sec. 73.23 of The change also
this chapter, as reflects that
applicable, and applicants under
shall protect part 70 would be
classified required to protect
information in classified
accordance with the information.
requirements of
parts 25 and 95 of
this chapter, as
applicable.''
70.22(o).................... This paragraph is This paragraph is
deleted. eliminated as it is
no longer necessary
in light of the
change to Sec.
70.22(l).
Sec. 70.32(j)............ The phrases ``a The deletions are
formula quantity of made to simplify
strategic'' and the revised
``physical proposed rule text
security, and make clear that
safeguards all SGI and SGI-M
contingency, and would have to be
guard qualification protected, not just
and training plans SGI or SGI-M
and other related'' contained in
are deleted. The physical security,
word ``are'' is safeguards
changed to ``is.'' contingency, or
The phrase ``and guard qualification
shall protect and training plans.
classified There is also a
information in change to correct
accordance with the verb tense. The
requirements of deletions are made
parts 25 and 95 of to simplify the
this chapter, as revised proposed
applicable'' is rule text and make
added. clear that all SGI
and SGI-M would
have to be
protected, not just
SGI or SGI-M
contained in
physical security,
safeguards
contingency, or
guard qualification
and training plans.
70.32(l).................... The paragraph is This paragraph is
deleted. eliminated as it is
no longer necessary
in light of the
change to Sec.
70.32(j).
71.11....................... The phrase ``spent This change corrects
fuel'' is changed a grammatical error
to ``irradiated and makes the
reactor fuel.'' The terminology
word ``a'' is added consistent with
before ``critical that used in 10 CFR
mass.'' part 73.
[[Page 64037]]
72.212(b)(5)(v)............. The phrase This change
``receives, recognizes that
transfers, and generally licensed
possesses power independent spent
reactor spent fuel, fuel storage
power reactor- installations are
related Greater not authorized to
than Class C (GTCC) transfer SNF
waste, and other'' pursuant to Sec.
is changed to 72.120, nor are
``receives and such facilities
possesses power authorized to
reactor spent fuel possess Greater
and other.'' than Class C waste.
73.2........................ Definitions of the The term
new terms ``background
``background check'' replaces
check'' and the term
``quantities of ``comprehensive
concern'' are background check''
added. The revised to more clearly
proposed rule distinguish the
states; background check
``Background check requirements for
includes, at a access to SGI from
minimum, a criminal other regulations
history check, requiring a
verification of ``background
identify, investigation'' for
employment history, other purposes (10
education, and CFR 73.56,
personal ``Personnel access
references. authorization
Individuals engaged requirements for
in activities nuclear power
subject to plants). In
regulation by the additional criminal
Commission, history check,
applicants for including
licenses to engage fingerprinting, is
in Commission- included as part of
regulated the background
activities, and check because the
individuals who background check
have notified the establishes the
Commission in overall
writing of an trustworthiness and
intent to file an reliability of an
application for individual for
licensing, access to SGI. The
certification, response to
permitting, or comments on the
approval of a definition of
product or activity ``background
subject to check'' contains
regulation by the more details on
Commission are this definition.
required under Sec.
73.57 to conduct
criminal history
checks before
granting access to
Safeguards
Information. A
background check
must be sufficient
to support the
trustworthiness and
reliability
determination so
that the person
performing the
check and the
Commission have
assurance that
granting
individuals access
to Safeguards
Information does
not constitute an
unreasonable risk
to the public
health and safety
or the common
defense and
security.''
The definition of The term
``quantities of ``quantities of
concern'' reads: `` concern'' is being
`Quantities of added to the
Concern' means the revised proposed
quantities of the rule because the
radionuclides term now appears in
meeting or new ``Appendix I to
exceeding the part 73, Category 1
threshold limits and Category 2
set forth in Table Radioactive
I-1 of Appendix I Materials, Table I-
of this part.'' 1--Quantities of
Concern Threshold
Limits.'' As
defined, the term
would mean the
quantities of the
radionuclides
meeting or
exceeding the
threshold limits
set forth in the
table.
The revised proposed The definition of
rule would amend the term ``need to
definition of know'' is amended
``need to know'' to to make clear that
read: `` `Need to the term applies to
know' means a licensees,
determination by a applicants,
person having certificate
responsibility for holders, and
protecting participants in
Safeguards adjudications.
Information that a
proposed
recipient's access
to Safeguards
Information is
necessary in the
performance of
official,
contractual,
licensee,
applicant, or
certificate holder
employment.''
In an adjudication, The definition of
``need to know'' ``need to know''
means a has two parts to
determination by add specificity to
the originator of the definition. The
the information first part defines
that (a) the ``need to know''
information is determinations
necessary to enable outside of
the proposed adjudications. The
recipient to second part defines
proffer and/or ``need to know''
adjudicate a determinations in
specific contention the context of
in that proceeding, adjudications.
and (b) the
proposed recipient
of the specific
Safeguards
Information
possesses
demonstrable
knowledge, skill,
training, or
education to
effectively utilize
the specific
Safeguards
Information in the
proceeding. Where
the information is
in the possession
of the originator
and the NRC staff
(dual possession),
whether in its
original form or
incorporated into
another document by
the recipient, the
NRC staff makes the
determination. In
the event of a
dispute regarding
``need to know''
determination, the
presiding officer
of the proceeding
makes the
determination.
73.2 Cont................... The definition of The definition of
``Safeguards ``SGI'' is changed
Information'' is in order to provide
amended to add the clarification that
phrases SGI is information
``licensee's or that identifies a
applicant's,'' ``licensee's or
``the physical applicant's''
protection of,'' detailed control
and ``within the and accounting
scope of Section procedures for the
147 of the Atomic physical protection
Energy Act of 1954, of special nuclear
as amended,'' to material and
change the phrase includes only
``radiological information
sabotage'' to ``within the scope
``sabotage,'' and of Section 147 of
to remove the word the Atomic Energy
``otherwise.'' Act of 1954, as
amended.
The definition of The definition of
``trustworthiness ``trustworthiness
and reliability'' and reliability''
has been revised by is changed in
deleting the response to
original proposed comments that it
definition and was not
substituting sufficiently clear.
``Trustworthiness
and reliability are
characteristics of
an individual
considered
dependable in
judgment,
character, and
performance, such
that disclosure of
Safeguards
Information to that
individual does not
constitute an
unreasonable risk
to the public
health and safety
or common defense
and security.''
[[Page 64038]]
73.8(b)..................... Section (b) is This paragraph is
updated to read: updated to include
``The approved all of the approved
information information
collection collection
requirements requirements
contained in this contained in part
part appear in Sec. 73.
Sec. 73.5,
73.20, 73.21,
73.22, 73.23,
73.24, 73.25,
73.26, 73.27,
73.37, 73.40,
73.45, 73.46,
73.50, 73.55,
73.56, 73,57,
73.60, 73.67,
73.70, 73.71,
73.72, 73.73,
73.74, and
appendices B, C,
and G.''
73.21(a)(1)(i).............. This paragraph is This paragraph is
reorganized and changed in response
edited to read: to comments to more
``Establish, clearly set out
implement, and which facilities,
maintain an materials, and
information licensees are
protection system subject to the
that includes the requirements of
applicable measures Sec. 73.22. The
for Safeguards paragraph is
Information reorganized for
specified in Sec. clarity.
73.22 related to:
Power reactors; a
formula quantity of
strategic special
nuclear material;
transportation of
or delivery to a
carrier for
transportation of a
formula quantity of
strategic special
nuclear material or
more than 100 grams
of irradiated
reactor fuel;
uranium
hexafluoride
production
facilities; fuel
fabrication
facilities; uranium
enrichment
facilities;
independent spent
fuel storage
installations; and
geologic repository
operations areas.''
73.21(a)(1)(ii)............. This paragraph is This subsection is
reorganized and changed in response
edited to read: to comments to more
``Establish, clearly set out
implement, and which facilities,
maintain an materials, and
information licensees are
protection system subject to the
that includes the requirements of
applicable measures Sec. 73.23. The
for Safeguards paragraph is
Information reorganized for
specified in Sec. clarity. This
73.23 related to: paragraph has been
Panoramic and drafted to be
underwater consistent with
irradiators that orders previously
possess greater issued by the
than 370 TBq Commission, e.g.,
(10,000 Ci) of Panoramic and
byproduct material Underwater
in the form of Irradiator Security
sealed sources; Orders, RAMQC
manufacturers and Transportation
distributors of Orders,
items containing Manufacturer and
source, byproduct, Distributor
or special nuclear Security Orders,
material in greater Increased Controls
than or equal to Orders.
Category 2
quantities of
concern; research
and test reactors
that possess
special nuclear
material of
moderate strategic
significance or
special nuclear
material of low
strategic
significance; and
transportation of
greater than or
equal to Category 2
quantities of
concern.''
73.21(a)(2)................. The word ``Federal'' In response to a
is added to the comment, this
list of law paragraph is
enforcement amended to provide
officials and the that information
cross reference is protection
changed from ``Sec. procedures used by
73.21(a)(i)'' to Federal police are
``Sec. presumed to meet
73.21(a)(1).'' The the general
word ``deemed'' is performance
changed to requirement of Sec.
``presumed.'' 73.21(a)(1). The
word ``deemed'' is
changed to
``presumed'' to be
consistent with
Sec. 73.21(b)(1),
which preserves the
Commission's
authority to impose
different SGI
handling
requirements on any
person who
produces, receives,
or acquires SGI.
The cross-reference
to Sec.
73.21(a)(i) is
changed to Sec.
73.21(a)(1) to
correct a
typographical
error.
73.21(b)(1)................. The phrase This change
``Safeguards clarifies that the
Information Commission may
handling impose information
requirements'' is protection
changed to requirements
``Safeguards different from or
Information in addition to
protection those specified in
requirements.'' The part 73 on any
phrase ``or in person who
addition to'' is produces, receives,
added. The cross- or acquires SGI,
reference to Sec. provided the
Sec. 73.21(a)(1) Commission's action
and (2) are deleted is within the scope
and reference to of its authority
``this part'' is under Section 147
substituted. of the Atomic
Energy Act of 1954,
as amended.
73.21(b)(2)................. A new section is This paragraph is
added: ``The added to indicate
Commission may that the Commission
require, by may impose the
regulation or requirements of
order, that part 73 on
information within facilities or
the scope of materials not
Section 147 of the specifically
Atomic Energy Act described in Sec.
of 1954, as amended Sec. 73.21,
related to 73.22, or 73.23,
facilities or provided the
materials not Commission's action
specifically is within the scope
described in Sec. of Section 147 of
Sec. 73.21, 73.22 the Atomic Energy
or 73.23 be Act of 1954, as
protected under amended.
this part.''
73.22....................... The phrase The introductory
``licensees text to Sec.
authorized to 73.22 is changed to
possess'' is conform with the
deleted. The phrase changes in Sec.
``and fuel cycle 73.21(a)(1)(i). The
facilities'' is change specifically
deleted and identifies which
replaced with fuel cycle
``uranium facilities are
hexafluoride subject to the
production requirements of
facilities, fuel Sec. 73.22.
fabrication
facilities, and
uranium enrichment
facilities;
independent spent
fuel storage
installations; and
geologic repository
operations areas.''
73.22(a).................... The phrase ``non- The first change
public'' is added. clarifies that only
The phrase non-public security-
``protective related
measures, interim requirements are to
compensatory be protected as
measures, SGI. The second
additional security change more closely
measures, and the tracks the current
following as rule language in
applicable'' is Sec. 73.21(b)(1).
deleted.
73.22(a)(1)................. The section is References to
revised to read specific licensees
``Information not are eliminated. The
classified as original proposed
Restricted Data or rule language
National Security inappropriately
Information related limited the scope
to physical of the section. The
protection, revision clarifies
including: '' the scope of the
revised proposed
rule and simplifies
the rule text.
[[Page 64039]]
73.22(a)(1)(i).............. The phrase ``All This paragraph,
portions of'' is which, as
deleted. originally
proposed, would
have protected
``all portions'' of
a composite
physical security
plan for a site, is
amended in response
to comments that
such plans may
contain a mix of
safeguards and non-
SGI. The NRC
acknowledges that
there may be some
non-SGI in various
licensee security
plans and
accordingly has
deleted the phrase
``all portions'' in
the revised
proposed rule text.
73.22(a)(1)(ii)............. The phrase ``not The phrase ``not
easily discernible easily discernible
by members of the to members of the
public'' is added. public'' is added
to reflect that
aspects of a
licensee's or
applicant's
physical security
system that can be
readily observed by
members of the
public are not
necessarily
considered SGI.
73.22(a)(1)(iii)............ The phrases ``for The phrase ``for
security security
equipment'' and equipment'' is
``not easily added in response
discernible by to comments
members of the requesting
public'' are added. clarification of
which emergency
power sources are
referred to in the
rule. The phrase
``not easily
discernible to
members of the
public'' is added
to reflect that
aspects of a
licensee's or
applicant's alarm
system layouts that
can be readily
observed by members
of the public are
not necessarily
considered SGI.
73.22(a)(1)(iv)............. The phrase ``Written This paragraph,
physical security which, as
orders and originally
procedures for proposed, covered
members of the only written
security physical security
organization, orders and
duress codes, and procedures, is
patrol schedules'' amended so that it
is revised to read would not be
``Physical security limited to written
orders and security orders and
procedures issued procedures. The
by the licensee for paragraph is also
members of the changed to clarify
security that it would apply
organization to physical
detailing duress security orders and
codes, patrol procedures written
routes and by the licensee. In
schedules, or addition, the
responses to revised proposed
security rule replaces
contingency ``patrol routes''
events''; with ``patrol
routes and
schedules.'' The
phrase ``safeguards
or security
emergencies'' is
changed to
``security
contingency
events'' to
emphasize that the
requirement is
security-related,
and to maintain
consistency with
other regulatory
provisions.
73.22(a)(1)(v).............. The phrase ``On-site This paragraph,
and off-site which, as
communications originally
systems in regard proposed, would
to their use for have protected
security purposes'' ``[o]n-site and off-
is revised to read site communications
``Site-specific systems in regard
design features of to their use for
plant security security
communications purposes,'' is
systems.'' amended in the
revised proposed
rule to read
``[s]ite-specific
design features of
plant security
communications
systems,'' in
response to a
comment that
licensees cannot
and should not
control information
describing off-site
communications
systems. The
revised proposed
rule would require
protection only of
information
regarding on-site
communications
systems.
73.22(a)(1)(vii)............ The phrase This change uses
``physical security broader language so
plans, safeguards that SGI protection
contingency plans'' is not limited to
is changed to formal security
``security plans, plans or
contingency contingency plans.
measures.'' Not all licensees
will have formally
designated plans.
The goal is to
protect information
about the physical
security system and
security
procedures, whether
or not they are
contained in a
single written
plan.
73.22(a)(1)(viii)........... The phrase ``All This paragraph,
portions of'' is which, as proposed,
deleted. The phrase would have
``safeguards protected ``all
contingency plan'' portions'' of a
is changed to composite
``safeguards safeguards
contingency plan/ contingency plan,
measures.'' is amended in
response to
comments that such
plans may contain a
mix of safeguards
and non-SGI. The
NRC acknowledges
that there may be
some non-SGI in
various licensee
security plans and
accordingly deleted
the phrase ``all
potions.'' The
revision also
protects
information about
contingency
measures not
contained in a
formal contingency
plan.
73.22(a)(1)(ix)............. The phrase ``All This paragraph,
portions of'' is which, as
deleted. The phrase originally
``guard proposed, would
qualification and have protected
training plan'' is ``all portions'' of
changed to ``guard a composite guard
qualification and qualification and
training plan/ training plan, is
measures.'' amended in response
to comments that
such plans may
contain a mix of
safeguards and non-
SGI. The NRC
acknowledges that
there may be some
non-SGI in various
licensee security
plans and
accordingly deleted
the phrase ``all
portions.'' The
revised proposed
rule would also
protect information
about guard
training not
contained in a
formal training and
qualification plan.
[[Page 64040]]
73.22(a)(1)(x).............. The phrase This paragraph is
``Information reworded slightly
concerning onsite for clarification.
or offsite response The phrase
forces, including ``safeguards or
size, identity, security
armament, and emergencies'' is
arrival times of changed to
such forces ``security
committed to contingency
respond to security events'' to
emergencies'' is emphasize that the
revised to read requirement is
``Information security-related,
relating to onsite and to maintain
or offsite response consistency with
forces, including other regulatory
size, armament of provisions.
response forces,
and arrival times
of such forces
committed to
respond to security
contingency
events;''
73.22(a)(1)(xi)............. The phrase ``The As originally
elements and proposed, this
characteristics of section referred
the Design Basis generically to
Threat in a level ``information that
of detail greater would disclose the
than as specified details of the
in Sec. 73.1 or Design Basis
other information Threat.'' The
that would disclose section has been
the Design Basis reworded to
Threat, including explicitly identify
the tactics and the information
capabilities that would be
required to defend protected under the
against that revised proposed
threat'' is revised rule. The Design
to read: ``The Basis Threat is set
Adversary out in its entirety
Characteristics in Sec. 73.1. The
Document or other information
implementing protected is the
guidance associated Adversary
with the Design Characteristics
Basis Threat in Document and other
Sec. 73.1;'' Design Basis Threat
implementing
guidance, which
contain detailed
descriptions of the
operational and
tactical
capabilities of the
hypothetical
adversary force
more generally
described in the
Design Basis Threat
rule.
73.22(a)(1)(xii)............ The phrase ``related This paragraph is
to the physical revised in response
protection'' at the to comments that
beginning of the the section was too
original proposed broadly-worded as
rule text is proposed. The
changed to revision clarifies
``revealing site- that the analyses,
specific details.'' procedures,
The phrase scenarios, and
``unauthorized other information
disclosure of such described in this
information'' is section are
changed to considered SGI only
``unauthorized if they reveal
disclosure of such ``site-specific
analyses, details'' about the
procedures, physical protection
scenarios, or other of the facility or
information.'' In source, byproduct,
addition, the or special nuclear
phrase ``emergency material. The
planning'' is substitution of
deleted and is ``security-
replaced with related'' for
``security- ``emergency
related.'' The planning'' is made
phrase ``material to clarify that
or a facility'' at emergency
the end of the preparedness plans
original proposed should remain
rule text is publicly available,
changed to unless a specific
``source, emergency
byproduct, or preparedness
special nuclear procedure contains
material.'' information which
could potentially
need to be
protected as SGI.
73.22(a)(1)(xiii)........... This paragraph is This paragraph is
deleted. deleted as
unnecessary. The
information this
section would have
protected is
protected under
Sec.
73.22(a)(1)(xi).
73.22(a)(2)................. The word The words
``otherwise'' and ``protection of''
the phrase are deleted to
``protection of'' correct a
are deleted. grammatical error
in the original
proposed rule. The
word ``otherwise''
is deleted to
simplify the
revised proposed
rule text.
73.22(a)(2)(i).............. The phrase ``All This paragraph,
portions of the which, as proposed,
composite would have
transportation protected ``all
physical security portions'' of a
plan'' is changed composite physical
to ``The composite security plan for
physical security transportation, is
plan for amended in response
transportation;'' to comments that
such plans may
contain a mix of
SGI and non-SGI.
The NRC
acknowledges that
there may be some
non-SGI in various
licensee security
plans and
accordingly deleted
the phrase ``all
portions.''
73.22(a)(2)(ii)............. The section is This section has
revised to read been changed to
``Schedules and more closely track
itineraries for the relevant
specific shipments statutory language
of source material, in Section 147 of
byproduct material, the AEA, and to
high-level nuclear reflect the NRC's
waste, or practice of
irradiated reactor decontrolling
fuel. Schedules for shipment schedules
shipments of source and itineraries
material, byproduct after completion of
material, high- the shipment.
level nuclear
waste, or
irradiated reactor
fuel are no longer
controlled as
Safeguards
Information 10 days
after the last
shipment of a
current series'';
73.22(a)(2)(vi)............. The phrase This paragraph is
``safeguards or reworded slightly
security for clarification.
emergencies'' is The phrase
changed to ``safeguards or
``security security
contingency emergencies'' is
events.'' changed to
``security
contingency
events'' to
emphasize that the
requirement is
security-related,
and to maintain
consistency with
other regulatory
provisions.
73.22(a)(2)(vii)............ The phrase The word
``radiological ``radiological'' is
sabotage'' is deleted because the
changed to definition of SGI
``sabotage.'' The relates broadly to
phrase ``irradiated sabotage, not only
reactor fuel'' is ``radiological
added. sabotage.'' The
addition of
``irradiated
reactor fuel''
makes the
terminology of this
paragraph
consistent with
that used elsewhere
in 10 CFR part 73.
73.22(a)(2)(viii)........... The phrase ``and This paragraph is
other information'' revised in response
is added. The to comments that
phrase the section was too
``unauthorized broadly worded as
disclosure of such proposed. The
information'' is revision clarifies
changed to that the analyses,
``unauthorized procedures,
disclosure of such scenarios, and
analyses, other information
procedures, described in this
scenarios, or other section are
information.'' The considered SGI only
phrase ``such if they reveal site-
material'' at the specific details
end of the original about the physical
proposed rule text protection of the
is changed to facility or source,
``source, byproduct, or
byproduct, or special nuclear
special nuclear material.
material.''
[[Page 64041]]
73.22(a)(3)................. The section is References to
revised to read specific licensees
``Information not are eliminated. The
classified as original proposed
National Security rule language
Information or inappropriately
Restricted Data limited the scope
pertaining to of the section. The
safeguards and revisions clarify
security the scope of the
inspections and revised proposed
reports, rule and simplify
including:'' the rule text.
73.22(a)(3)(ii)............. The phrase ``after This paragraph is
the investigation changed to reflect
has been that NRC will
completed'' is release general
changed to ``after investigation
corrective actions reports after
have been corrective action
completed.'' has been taken,
unless the
information is
properly withheld
under the Freedom
of Information Act.
Reports of
investigation will
not be released
before corrective
action is taken
because the reports
could be used to
exploit security
deficiencies.
73.22(a)(4)................. The word This paragraph is
``paragraph'' is changed to correct
changed to a grammatical
``section.'' The error.
words ``as
defined'' are
changed to ``as set
forth.''
73.22(a)(5)................. The phrase ``Other This paragraph is
information'' is changed in response
changed to ``Other to comments that it
information within was too broadly-
the scope of worded as proposed.
Section 147 of the The change makes
Atomic Energy Act clear that the
of 1954, as Commission retains
amended.'' The the authority to
phrase ``material issue further
or a facility'' at orders or
the end of the regulations
original proposed requiring the
rule text is protection of
changed to categories of
``source, information not
byproduct, or described in the
special nuclear regulations,
material or a provided the
facility.'' information still
falls within the
cope of Section 147
of the Atomic
Energy Act of 1954,
as amended.
73.22(b).................... This paragraph has The structure of
been revised and this paragraph has
reorganized in the been revised for
revised proposed clarification.
rule for clarity. These revisions are
However, the intended to make
conditions of clear that no one
access to SGI-- would have access
established need to to SGI without
know, FBI criminal first establishing
history check, and a ``need to know''.
background check to They are intended
determine to make clear that
trustworthiness and unless an
reliability--have individual is
not changed. The exempt by virtue of
background check to his or her
determine occupational status
trustworthiness and all individuals
reliability would be required
contained in Sec. to undergo an FBI
73.22(b)(1)(i)(A) criminal history
of the original check and a
proposed rule is in background check to
Sec. 73.22(b)(2) determine
of the revised trustworthiness and
proposed rule. The reliability before
exemptions from obtaining access to
criminal history SGI.
and background
checks contained in
Sec.
73.22(b)(1)(i)-(vi)
are cross-
referenced in Sec.
73.22(b)(3) of
revised proposed
rule. The specific
exemptions are
listed in Sec.
73.59.
73.22(b)(1)................. This section has This paragraph has
been revised and been revised to
simplified. It now require an
reads in its established ``need
entirety: ``Except to know'' and an
as the Commission FBI criminal
may otherwise history check
authorize, no before access to
person may have SGI. There would be
access to no exception to the
Safeguards `need to know'
Information unless requirement. All
the person has an exemptions to the
established ``need FBI criminal
to know'' for the history and
information and has background check
undergone a Federal requirements are
Bureau of now contained in
Investigation Sec.
criminal history 73.22(b)(3)(i)-(vii
check using the ).
procedures set
forth in Sec.
73.57.''
73.22(b)(2)................. This section now The paragraph has
reads: ``In been revised to
addition, a person clarify that
to be granted individuals are
access to SGI must subject to a
be trustworthy and background check
reliable, based on before they must be
a background check granted access to
or other means SGI. The
approved by the determination that
Commission.'' an individual is
trustworthy and
reliable would be
based upon a
background check.
The background
check for
trustworthiness and
reliability would
be in addition the
FBI criminal
history check. The
term ``background
check'' is defined
in Sec. 73.2.
73.22(b)(3)................. This section This paragraph
provides that Sec. provides that Sec.
73.59 lists the 73.59 lists the
categories of categories of
individuals who are individuals who
exempt from the would be exempt
requirements of from a FBI criminal
Sec. 73.22(b)(1) history check
& (2) by virtue of requirement in Sec.
their occupational 73.22(b)(1) and
status. the background
check to determine
trustworthiness and
reliability
requirements in
Sec. 73.22(b)(2)
by virtue of their
occupation status.
These individuals
are not exempt from
the ``need to
know'' requirement.
73.22(b)(4)................. This section has This paragraph was
been added. It added to clarify
reads: ``For when the need to
persons know determination
participating in an would be made and
NRC adjudicatory who would determine
proceeding other whether a
than those participant in an
identified in Sec. NRC adjudicatory
73.9, the ``need proceeding has a
to know'' ``need to know.''
determination shall
be made by the
originator of the
Safeguards
Information upon
receipt of a
request for access
to the Safeguards
Information. Where
the information is
in the possession
of the originator
and the NRC staff
(dual possession),
whether in its
original form or
incorporated into
another document by
the recipient, the
NRC staff makes the
determination. In
the event of a
dispute regarding
the ``need to
know''
determination, the
presiding officer
of the proceeding
shall determine
whether the ``need
to know'' findings
in Sec. 73.2 can
be made.''
[[Page 64042]]
73.22(b)(5)................. This paragraph was The change of the
Sec. 73.22(b)(3) phrase ``as set
in the original forth in paragraph
proposed rule. The (b)(1)'' to ``as
phrase ``except as set in this
set forth in section'' results
paragraph (b)(1)'' from the
has been deleted restructuring of
and replaced with Sec. 73.22(b).
``except as set
forth in this
section.''
73.22(c)(1 The phrase This paragraph is
). ``Safeguards revised to make
Information within clear that SGI
alarm stations, could be left
continuously manned outside of a locked
guard posts or security storage
ready rooms need container if
not be locked in a attended by
locked security individuals
storage container'' authorized access
is changed to to SGI. The
``Safeguards original proposed
Information within rule could have
alarm stations, or been interpreted to
rooms continuously allow unauthorized
occupied by persons access to
authorized SGI.
individuals need
not be stored in a
locked security
storage
container.''
73.22(c)(2)................. The phrase ``so as The word
to prevent ``unauthorized'' is
disclosure to an removed because it
unauthorized was redundant. The
individual not word ``shall'' is
authorized access replacing ``may''
to Safeguards because it is a
Information'' is requirement that
changed to ``so as locked security
to prevent storage containers
disclosure to an do not identify
individual not contents as SGI.
authorized access
to Safeguards
Information.'' The
word ``may'' is
changed to
``shall.''
73.22(d)(1)................. The phrase ``must be This paragraph is
marked `Safeguards revised in response
Information' '' is to comments that
changed to ``must the proposed
be marked to document-marking
indicate the language was too
presence of such prescriptive. The
information.'' The changes are
phrase ``to intended to allow
indicate the more flexibility in
presence of document marking.
protected The change from
information'' is ``each'' to ``the''
deleted from the is to conform this
end of the first paragraph with Sec.
sentence. The word 73.23(d)(1).
``each'' in the
last sentence is
changed to ``the.''
73.22(d)(1)(iii)............ The word ``would'' The word ``would''
is changed to is changed to
``will''. ``will.''
73.22(d)(2)................. The phrase ``In This paragraph is
addition to the revised in response
`Safeguards to comments that
Information' the proposed
markings'' is language was too
changed to ``In prescriptive. The
addition to the changes are
markings.'' The intended to allow
phrase more flexibility in
``transmittal document marking.
letters or
memoranda'' is
changed to ``any
transmittal letters
or memoranda to or
from the NRC,'' and
``e.g.'' is changed
to ``i.e.''
73.22(d)(3)................. The phrase ``Portion This paragraph is
marking of revised in response
documents or other to comments seeking
information is clarification of
required for which documents
correspondence to require portion
and from the NRC'' marking. The intent
is changed to of the revised
``Portion marking section is to
is required only require portion
for correspondence marking only for
to and from the NRC cover letters and
(i.e., cover similar documents
letters, but not that transmit
attachments) that correspondence to
contains Safeguards or from the NRC.
Information.'' The Attachments to the
word transmittal
``transmittal'' is document do not
added before need to be portion
``document.'' marked. This
requirement would
enable the NRC to
better identify
some of its
security-related
regulatory
activities to the
public because it
will be
administratively
easier to redact
and disclose
portion-marked
transmittal
documents.
73.22(d)(4)................. This paragraph as This paragraph is
proposed is deleted deleted from the
and substituted revised proposed
with a revision of rule in response to
the proposed Sec. comments opposing
73.22(d)(5). The the requirement to
revised proposed re-mark SGI that
rule Sec. existed before the
73.22(d)(4) reads effective date of a
``Marking of final rule.
documents
containing or
transmitting
Safeguards
Information shall,
at a minimum
include the words
`Safeguards
Information' to
ensure
identification of
protected
information for the
protection of
facilities and
material covered by
10 CFR 73.22.''
73.22(d)(5)................. The proposed The paragraph is
paragraph was reworded and
revised and moved renumbered as Sec.
to Sec. 73.22(d)(4) in the
73.22(d)(4). revised proposed
rule. The revision
requires that
future document
markings include
the words
``Safeguards
Information''
ensure easy
identification and
a level of
consistency among
those required to
mark such
information.
73.22(e).................... The phrase ``If This paragraph is
Safeguards revised to provide
Information is more general
reproduced on a instructions on
digital copier that reproduction of
would retain SGI. The original
Safeguards proposed rule
Information in its limited the
memory, then the instructions to
copier may not be digital copiers.
connected to a The revision
network'' is applies a
changed to performance-based
``Equipment used to standard to any
reproduce equipment used to
Safeguards reproduce SGI.
Information must be
evaluated to ensure
that unauthorized
individuals cannot
access Safeguards
Information (e.g.,
unauthorized
individuals cannot
access SGI by
gaining access to
retained memory or
network
connectivity).''
73.22(f)(2)................. The phrase This paragraph is
``nationwide revised so that
overnight'' is commercial delivery
deleted. companies
transporting SGI do
not have to provide
nationwide
overnight service.
SGI may be
transported by
trusted, local
carriers, so long
as the carrier has
computer tracking
capabilities.
[[Page 64043]]
73.22(f)(3)................. This paragraph has The paragraph has
been revised to been revised and
read: ``Except updated to more
under emergency or accurately reflect
extraordinary information
conditions, security
Safeguards requirements.
Information shall
be transmitted
outside an
authorized place of
use or storage only
by (a) NRC approved
secure electronic
devices, such as
facsimiles or
telephone devices,
provided that
transmitters and
receivers implement
processes that will
provide high
assurance that
Safeguards
Information is
protected before
and after the
transmission or (b)
electronic mail
through the
internet, provided
that (i) the
information is
encrypted by the
NRC-approved
encryption modules
and algorithms;
(ii) the
information is
produced by a self
contained secure
automatic data
process system; and
(iii) transmitters
and receivers
implement the
information
handling processes
that will provide
high assurance that
Safeguards
Information is
protected before
and after
transmission.
Physical security
events required to
be reported
pursuant to Sec.
73.71 are
considered to be
extraordinary
conditions.''
73.22(g)(1)................. The word ``may'' is The phrase ``shall
changed to be'' is replacing
``shall'' in the ``may be'' to
third sentence. clarify that stand-
alone computers or
computer systems
are required not to
be physically or in
any other way
connected to a
network accessible
by users who are
not authorized
access to SGI.
73.22(g)(3)................. The word The word
``automated'' is ``automated''
deleted. unnecessarily
appeared in the
original proposed
rule and has been
deleted.
73.22(i).................... The phrase ``tearing This paragraph is
into small pieces'' revised to
is deleted from the eliminate redundant
second sentence. language and to
The third sentence clarify that
is change from document
``Piece sizes one destruction results
half inch or in piece sizes no
smaller composed of wider than one-
several pages or quarter inch,
documents and thoroughly mixed.
thoroughly mixed Changing the word
would be considered ``must'' to
completely ``shall'' conforms
destroyed'' to this paragraph with
``Piece sizes no Sec. 73.23(i).
wider than one
quarter inch
composed of several
pages or documents
and thoroughly
mixed are
considered
completely
destroyed.'' The
word ``must'' is
changed to
``shall.''
73.23....................... The first sentence This section is
is deleted and changed in response
replaced with to comments
``This section requesting that the
contains specific rule more clearly
requirements for set out which
the protection of facilities,
Safeguards materials, and
Information related licensees and
to panoramic and subject to the
underwater requirements of
irradiators that Sec. 73.23. It
possess greater has been drafted to
than 370 TBq be consistent with
(10,000 Ci) of orders previously
byproduct material issued by the
in the form of Commission, e.g.,
sealed sources; Panoramic and
manufactures and Underwear
distributors of Irradiator Security
items containing Orders, RAMQC
source, byproduct, Transportation
or special nuclear Orders,
material in greater Manufacturer and
than or equal to Distributor Orders,
Category 2 Increased Control
quantities of Orders. The word
concern; ``handling'' is
transportation of used to conform the
more than 1000 TBq sentence with the
(27,000 Ci) but paragraph.
less than or equal
to 100 grams of
spent nuclear fuel;
research and test
reactors that
possess special
nuclear material of
moderate strategic
significance or
special nuclear
material of low
strategic
significance; and
transportation of
greater than or
equal to Category 2
quantities of
concern.'' In the
second sentence,
the word
``protection'' is
replaced by
``handling.''
73.23(a).................... The phrase ``non- The words ``non-
public'' is added. public'' are added
The phrase for clarification.
``Safeguards The phrase
Information'' is ``Safeguards
changed to Information'' is
``Safeguards changed to
Information ``Safeguards
designated as Information
Safeguards designated as
Information- Safeguards
Modified Information-
Handling.'' Modified Handling''
to better
distinguish SGI-M,
needing modified
protection, from
SGI for reactors
and fuel cycle
facilities that
require a higher
level of
protection.
73.23(a)(1)................. This section is References to
revised to read specific licensees
``Information not are eliminated. The
classified as original proposed
Restricted Data or rule language
National Security improperly limited
Information related the scope of the
to physical section. The
protection, revision clarify
including:'' the scope of the
revised proposed
rule and simplify
the rule text.
73.23(a)(1)(i).............. The phrase ``All This paragraph,
portions of'' is which, as
deleted. originally
proposed, would
have protected
``all portions'' of
a composite
physical security
plan, is amended in
response to
comments that such
plans may contain a
mix of SGI and non-
SGI. The NRC
acknowledges that
there may be some
non-SGI in various
licensee security
plans and
accordingly deleted
the phrase ``all
portions'' in the
revised proposed
rule.
73.23(a)(1)(ii)............. The phrase ``not The phrase ``not
easily discernible easily discernible
by members of the to members of the
public'' is added. public'' is added
to reflect that
aspects of a
licensee's or
applicant's alarm
system layouts that
can be readily
observed by members
of the public are
not necessarily
considered SGI.
[[Page 64044]]
73.23(a)(1)(iii)............ The phrases ``for The phrase ``for
security security
equipment'' and equipment'' is
``not easily added in response
discernible by to comments
members of the requesting
public'' are added. clarification of
which emergency
power sources are
referred to in the
rule. The phrase
``not easily
discernible to
members of the
public'' is added
to reflect that
aspects of a
licensee's or
applicant's alarm
system layouts that
can be readily
observed by members
of the public would
not necessarily be
considered SGI.
73.23(a)(1)(iv)............. The phrase ``Written This paragraph is
physical security revised to clarify
orders and that it applies to
procedures for orders and
members of the procedures issued
security by the licensee
organization, regarding certain
duress codes, and security
patrol schedules'' activities.
is revised to read
``Physical security
orders and
procedures issued
by the licensee for
members of the
security
organization
detailing duress
codes, patrol
routes and
schedules, or
responses to
security
contingency
events'';
73.23(a)(1)(v).............. The phrase ``On-site This paragraph is
and off-site revised in response
communications to comments that
systems in regard the original
to their use for proposed rule was
security purposes'' overly broad. This
is revised to read paragraph now
``Site-specific requires protection
design features of of site-specific
plant security design features of
communications facility
systems''; communications
systems.
73.23(a)(1)(vii)............ The words ``The This paragraph is
composite'' are revised to more
added at the closely track the
beginning of the language in Sec.
section. The phrase 73.22(a)(1)(ix).
``guard Also, the revision
qualification and protects
training information about
procedures'' is guard training not
changed to ``guard contained in a
qualification and formal training and
training plan/ qualification plan.
measures.''
73.23(a)(1)(ix)............. The phrase The paragraph is
``Information reworded slightly
concerning offsite for clarification.
response forces, The phrase
including size, ``safeguards or
identity, armament, security
and arrival times emergencies'' is
of such forces changed to
committed to ``security
respond to contingency
safeguards or events'' to
security emphasize that the
emergencies'' is requirement is
revised to read security-related,
``Information and to maintain
relating to onsite consistency with
or offsite response other regulatory
forces, including provisions.
size, armament of
response forces,
and arrival times
of such forces
committed to
respond to security
contingency events;
and''
73.23(a)(1)(x).............. The phrase ``related This paragraph is
to the physical revised in response
protection of'' at to comments that
the beginning of the section was too
the original broadly worded as
proposed rule text proposed. The
is changed to revision clarifies
``revealing site- that the analyses,
specific details procedures,
of.'' The phrase scenarios, and
``unauthorized other information
disclosure of such described in this
information'' is section are
changed to considered SGI only
``unauthorized if they reveal
disclosure of such ``site-specific
analyses, details'' about the
procedures, physical protection
scenarios, and of the facility or
information.'' In source, byproduct,
addition, the or special nuclear
phrase ``emergency material''. The
planning'' is substitution of
deleted and is ``security-
replaced with related'' for
``security- ``emergency
related.'' The planning'' is made
phrase ``material to clarify that
or a facility'' at emergency
the end of the preparedness plans
original proposed should remain
rule text is publicly available,
changed to unless a specific
``source, emergency
byproduct, or preparedness
special nuclear procedure contains
material''. information which
could potentially
need to be
protected as SGI.
73.23(a)(2)................. This section is The language is
revised to read revised to more
``Information not precisely define
classified as which types of
Restricted Data or information would
National be protected under
Information related the revised
to the physical proposed rule. The
protection of word ``otherwise''
shipments of more is removed to
than 1000 Tbq simplify the
(27,000 Ci) but revised proposed
less than or equal rule text.
to 100 grams of
spent nuclear fuel,
source material and
byproduct material
in Category 2
quantities of
concern, and
special nuclear
material in less
than a formula
quantity (except
for those materials
covered under Sec.
73.22),
including:''
73.23(a)(2)(i).............. The phrase This paragraph is
``security features revised so that it
of a transportation more accurately
physical security describes the type
plan'' is changed of information that
to ``transportation would be protected.
security measures, The original
including physical proposed rule would
security plans and have required
procedures, protection of a
immobilization ``transportation
devices, and escort physical security
requirements, more plan,'' but not all
detailed than NRC licensees subject
regulations.'' The to this section
phrase ``Scheduling will have such a
and itinerary plan. The revised
information may be language is broader
shared with others and would cover
on a ``need to ``information
know'' basis and is regarding
not designated as transportation
Safeguards security measures,
Information- including physical
Modified Handling'' security plans and
has been deleted procedures * * *''
from this paragraph
of the revised
proposed rule.
[[Page 64045]]
73.23(a)(2)(ii)............. The text that This paragraph has
appeared in this been added to
paragraph of the include protection
original proposed of information
rule is renumbered associated with
to Sec. transportation of
73.23(a)(2)(iii). radioactive
In its place, the materials in
following paragraph greater than or
has been added: equal to Category 1
``Scheduling and quantities of
itinerary concern.
information for
shipments
(scheduling and
itinerary
information for
shipments that are
inherently self-
disclosing may be
decontrolled after
shipment departure.
Scheduling and
itinerary
information for
shipments that are
not inherently self-
disclosing may be
decontrolled 2 days
after the shipment
is completed.
Scheduling and
itinerary
information used
for the purpose of
preplanning,
coordination, and
advance
notification may be
shared with others
on a ``need to
know'' basis and
need not be
designated
Safeguards
Information-
Modified
Handling);''
73.23(a)(2)(iii)............ Due to renumbering, This paragraph was
this paragraph now renumbered from
reads: (ii) to (iii).
``Arrangements with
and capabilities of
local police
response forces,
and locations of
safe havens;'' The
paragraph reading:
``Limitations of
communications
during transport,''
which appeared in
this paragraph of
the original
proposed rule has
been deleted.
73.23(a)(2)(iv)............. In the revised This paragraph has
proposed rule this been added to
paragraph reads: include protection
``Details of alarm of information
and communication associated with the
systems, transportation of
communication radioactive
procedures, and material in greater
duress codes;'' than or equal to
Category 1
quantities of
concern.
73.23(a)(2)(v).............. The phrase This paragraph,
``safeguards or which as (iv) in
security the original
emergencies'' is proposed rule, is
changed to reworded slightly
``security for clarification
contingency events; in the revised
and'' proposed rule. The
phrase ``safeguards
or security
emergencies'' is
changed to
``security
contingency
events'' to
emphasize that the
requirement is
security-related,
and to maintain
consistency with
other regulatory
provisions.
73.23(a)(2)(vi)............. The phrase This paragraph is
``emergency revised in response
planning'' is to comments that
deleted and is the section was too
replaced with broadly worded as
``security- proposed. The
related.'' The revision clarifies
phrase ``and other that the analyses,
information'' is procedures,
added after scenarios, and
``security-related other information
procedures or described in this
scenarios.'' The section are
phrase considered SGI only
``unauthorized if they reveal
disclosure of such ``site-specific
information'' is details'' about the
changed to physical protection
``unauthorized of the facility or
disclosure of such source, byproduct,
analyses, or special nuclear
procedures, material. The
scenarios, or other substitution of
information.'' The ``security-
phrase ``sabotage related'' for
of such material'' ``emergency
at the end of the planning'' is made
original proposed to clarify that
rule text is emergency
changed to preparedness plans
``sabotage of should remain
source, byproduct, publicly available,
or special nuclear unless a specific
material.'' emergency
preparedness
procedure contains
information which
could potentially
need to be
protected as SGI.
73.23(a)(3)................. The phrase This paragraph is
``relating to revised to more
inspections and precisely define
reports'' is its scope, simplify
changed to the revised
``pertaining to proposed rule text,
safeguards and and to be
security consistent with
inspections and Sec. 73.22(a)(2).
reports.'' The
words ``such as''
are changed to
``including,'' and
the word
``otherwise'' is
deleted.
73.23(a)(3)(ii)............. The phrase ``after This paragraph is
the investigation changed to reflect
has been that NRC would
completed'' is release general
changed to ``after investigation
corrective actions reports after
have been corrective action
completed.'' has been taken,
unless the
information is
properly withheld
under the Freedom
of Information Act.
Reports of
investigation would
not be released
before corrective
action is taken
because the reports
could be used to
exploit security
deficiencies.
73.23(a)(4)................. The phrase The phrase
``Safeguards ``Safeguards
Information'' is Information'' is
changed to changed to
``Safeguards ``Safeguards
Information--Modifi Information--Modifi
ed Handling.'' The ed Handling'' to
word ``defined'' is better distinguish
changed to ``set between these
forth.'' levels of
safeguards
information, which
require different
marking, storage,
and handling
requirements.
73.23(a)(5)................. The phrase ``Other This paragraph is
information'' is changed in response
changed to ``Other to comments that it
information within was too broadly-
the scope of worded as proposed.
Section 147 of the The change makes
Atomic Energy Act clear that the
of 1954, as Commission retains
amended.'' The the authority to
phrase ``material issue further
or a facility'' at orders or
the end of the regulations
original proposed requiring the
rule text is protection of
changed to categories of
``source, information not
byproduct, or described in the
special nuclear regulations,
material or a provided the
facility.'' information still
falls within the
scope of Section
147 of the Atomic
Energy Act of 1954,
as amended.
[[Page 64046]]
73.23(b).................... This paragraph has This paragraph has
been revised and been revised in the
reorganized in the revised proposed
revised proposed rule to implement
rule. The revised Section 652 of the
proposed rule adds Energy Policy Act
the requirement of 2005, to clarify
that before an the requirements
individual may be for access to SGI-
granted access to M, and to make the
SGI-M the structure and
individual must language this
undergo an FBI section identical
criminal history the structure and
check. The FBI language of Sec.
criminal history 73.22(b). Note that
check is in pursuant to the
addition to an Energy Policy Act
established ``need of 2005,
to know'' and a individuals to be
background check granted access to
for trustworthiness SGI-M would be
and reliability. fingerprinted for
purposes of an FBI
criminal history
check.
73.23(b)(1)................. The phrase The phrase
``Safeguards ``Safeguards
Information'' is Information'' is
changed to changed to
``Safeguards ``Safeguards
Information--Modifi Information
ed Handling.'' The designated as
phrase ``a Safeguards
determination of Information--Modifi
trustworthiness and ed Handling'' to
reliability'' is better distinguish
changed to ``has between these
undergone a Federal levels of
Bureau of safeguards
Investigation information, which
criminal history require different
check using the marking, storage,
procedures set and handling
forth in Sec. requirements.
73.57.'' Section The phrase ``and
73.23(b)(1) now undergo a Federal
reads in its Bureau of
entirety: ``Except Investigation
as the Commission criminal history
may otherwise check to the extent
authorize, no required by 10 CFR
person may have 73.57 before such
access to access'' has been
Safeguards added to this
Information paragraph to
designated as implement Section
Safeguards 652 of the Energy
Information--Modifi Policy Act 2005,
ed Handling unless which amended
the person has an Section 149 of the
established ``need AEA. Under the
to know'' for the revised proposed
information and has rule, an FBI
undergone a Federal criminal history
Bureau of check, an
Investigation established ``need
criminal history to know'', and a
check using the background check
procedures set for trustworthiness
forth in Sec. and reliability
73.57.'' would be required
to access to SGI.
73.23(b)(2)................. This section now This paragraph has
reads: ``In been revised to
addition, a person clarify that
to be granted individuals would
access to SGI must subject to a
be trustworthy and background check
reliable, based on before they may be
a background check granted access to
or other means SGI. The
approved by the determination that
Commission.'' an individual is
trustworthy and
reliable is based
upon a background
check, or other
means approved by
the Commission. The
requirement of a
background check
for trustworthiness
and reliability is
in addition to the
FBI criminal
history check
requirement. The
term ``background
check'' is defined
in Sec. 73.2. The
requirement that
individuals undergo
a background check
to determine their
trustworthiness and
reliability prior
to access to SGI-M
was in Sec.
73.23(b)(1)(i) of
the original
proposed rule.
73.23(b)(3)................. This section This paragraph is
provides that Sec. revised to provide
73.59 lists the that Sec. 73.59
categories of lists the
individuals exempt individuals who
from the criminal would be exempt
history and from the FBI
background check criminal history
requirements of check requirement
Sec. in Sec.
73.23(b)(1)&(2) by 73.23(b)(1) and the
virtue of their background check
occupational for trustworthiness
status. and reliability
requirement in Sec.
73.23(b)(2) by
virtue of their
occupational
status.
73.23(b)(4)................. The following This paragraph was
paragraph has been added to clarify
added: ``For when the ``need to
persons know''
participating in an determination would
NRC adjudicatory be made and who
proceeding other would determine
than those whether a
specified in Sec. participant in an
73.59, the `need to NRC adjudicatory
know' determination proceeding has a
shall be made by ``need to know''.
the originator of
the Safeguards
Information upon
receipt of a
request for access
to the Safeguards
Information. Where
the information is
in the possession
of the originator
and the NRC staff,
whether in its
original form or
incorporated into
another document by
the recipient, the
NRC staff shall
make the
determination. In
the event of a
dispute regarding
the `need to know'
determination, the
presiding officer
of the proceeding
shall determine
whether the `need
to know' findings
in Sec. 73.2 can
be made.''
73.23(b)(5)................. This paragraph was The change to this
Sec. 73.23(b)(3) paragraph is the
in the original results from the
proposed rule. The restructuring of
phrase ``except as Sec. 73.23(b).
set forth in
paragraph (b)(1)''
has been deleted
and replaced with
``except as set
forth in this
section.''
73.23(c)(1)................. The phrase This paragraph is
``Safeguards revised to make
Information'' is clear that SGI can
changed to be left outside of
``Safeguards a locked security
Information storage container
designated as if attended by
Safeguards individuals
Information-Modifed authorized access
Handling.'' The to SGI. The
phrase ``Safeguards original proposed
Information within rule could have
alarm stations, been interpreted to
continuously manned allow unauthorized
guard posts or persons access to
ready rooms need SGI. The phrase
not be locked in a ``Safeguards
file drawer or Information'' is
cabinet'' is changed to
changed to ``Safeguards
``Safeguards Information--Modifi
Information ed Handling'' to
designated as better distinguish
Safeguards between these
Information-Modifed levels of
Handling within safeguards
alarm stations or information, which
rooms continuously require different
occupied by marking, storage,
authorized and handling
individuals need requirements.
not be locked in a
file drawer or
cabinet.''
[[Page 64047]]
73.23(c)(2)................. The phrase The phrase
``Safeguards ``Safeguards
Information'' is Information'' is
changed to changed to
``Safeguards ``Safeguards
Information--Modifi Information--Modifi
ed Handling.'' The ed Handling'' to
word ``may'' is better distinguish
changed to between these
``shall.'' levels of
safeguards
information, which
require different
marking, storage,
and handling
requirements. The
word ``shall'' is
replacing ``may''
because it is a
requirement that
locked file drawers
or cabinets do not
identify contents
as SGI-M.
73.23(d)(1)................. The phrase ``must be This paragraph is
marked `SGI- revised in response
Modified Handling' to comments that
'' is changed to the proposed
``must be marked to document-marking
indicate the language was too
presence of prescriptive. The
Safeguards changes are
Information with intended to allow
modified handling more flexibility in
requirements.'' The document marking.
phrase ``to The phrase
indicate the ``Safeguards
presence of Information'' is
protected changed to
information'' is ``Safeguards
deleted from the Information--Modifi
end of the first ed Handling'' to
sentence. The better distinguish
phrase ``Safeguards between these
Information'' is levels of
changed to safeguards
``Safeguards information, which
Information require different
designated as marking, storage,
Safeguards and handling
Information--Modifi requirements.
ed Handling.''
73.23(d)(1)(i).............. The second The phrase
appearance of the ``Safeguards
phrase ``safeguards Information'' is
information'' is changed to
deleted. The phrase ``Safeguards
``Safeguards Information--Modifi
Information'' is ed Handling'' to
changed to better distinguish
``Safeguards between these
Information levels of
designated as safeguards
Safeguards information, which
Information--Modifi require different
ed Handling.'' The marking, storage,
word and handling
``designation'' is requirements. The
changed to word
``determination.'' ``designation'' was
changed to
``determination''
to conform Sec.
73.23(d)(1)(i) to
Sec. 73.22(d)(1)(i
). The second
reference to
safeguards
information is
removed because it
was redundant.
73.23(d)(1)(iii)............ The word ``would'' The word ``would''
is changed to is changed to
``will''. ``will.''
73.23(d)(2)................. The phrase ``In This paragraph is
addition to the revised in response
`SGI-Modified to comments that
Handling' the proposed
markings'' is language was too
changed to ``In prescriptive. The
addition to the changes are
markings.'' The intended to allow
phrase more flexibility in
``transmittal document marking.
letter or The phrase
memoranda'' is ``Safeguards
changed to ``any Information'' is
transmittal letters changed to
or memoranda to or ``Safeguards
from the NRC,'' Information--Modifi
``e.g.'' is changed ed Handling'' to
to ``i.e.,'' and better distinguish
``must'' is changed between these
to ``shall.'' The levels of
phrase ``Safeguards safeguards
Information'' is information, which
changed to require different
``Safeguard marking, storage,
Information and handling
designated as requirements. The
Safeguards word ``document''
Information--Modifi was added to
ed Handling.'' The conform this
word ``document'' paragraph to Sec.
is added after 73.22(d)(2).
``transmittal.''
73.23(d)(3)................. The phrase ``Portion This paragraph is
marking of document revised in response
or other to comments seeking
information is clarification of
required for which documents
correspondence to require portion
and from the NRC'' marking. The intent
is changed to of the revised
``Portion marking section is to
is required only require portion
for correspondence marking only for
to and from the NRC cover letters and
(i.e., cover similar documents
letters, but not that transmit
attachments) that correspondence to
contains Safeguards or from the NRC.
Information--Modifi Attachments to the
ed Handling.'' The transmittal
last sentence of document do not
the original need to be portion
proposed rule text marked. This
is deleted. The requirement would
phrase ``Safeguards enable the NRC to
Information'' is better identify
changed to some of its
``Safeguards security-related
Information regulatory
designated as activities to the
Safeguards public because it
Information--Modifi will be
ed Handling.'' The administratively
word easier to redact
``transmittal'' is and disclose
added before portion-marked
``document.'' transmittal
documents. The
phrase ``Safeguards
Information'' is
changed to
``Safeguards
Information--Modifi
ed Handling'' to
better distinguish
between these
levels of
Safeguards
Information, which
require different
marking, storage,
and handling
requirements.
73.23(d)(4)................. This paragraph did This paragraph is
not appear in the added to parallel
original proposed the requirement in
rule and is added Sec. 73.22(d)(4)
to parallel the that documents be
requirement in Sec. marked with some
73.22(d)(4). This minimum level of
paragraph did not consistency.
appear in the Consistency in
original proposed document marking is
rule and is added important to ensure
to parallel the ready and proper
requirement in Sec. identification of
73.22(d)(4). SGI, as well as
consistent
handling.
73.23(e).................... The phrase ``If This paragraph is
Safeguards revised to provide
Information is more general
reproduced on a instructions on
digital copier that reproduction of
would retain SGI. The original
Safeguards proposed paragraph
Information in its limited the
memory, then the instructions to
copier may not be digital copiers.
connected to a The revision
network'' is applies a
changed to performance-based
``Equipment used to standard to any
reproduce equipment used to
Safeguards reproduce SGI. The
Information phrase ``Safeguards
designated as Information'' is
Safeguards changed to
Information- ``Safeguards
Modified Handling Information-
must be evaluated Modified Handling''
to ensure that to better
unauthorized distinguish between
individuals cannot these levels of
access the safeguards
information (e.g., information, which
unauthorized require different
individuals cannot marking, storage,
access SGI by and handling
gaining access to requirements.
retained memory or
network
connectivity).''
The phrase
``Safeguards
Information'' is
changed to
``Safeguards
Information
designated as
Safeguards
Information-
Modified
Handling.''
73.23(f)(1)................. The phrase The phrase
``Safeguards ``Safeguards
Information'' and Information'' is
``SGI--Modified changed to
Handling'' are ``Safeguards
changed to Information-
``Safeguards Modified Handling''
Information to better
designated as distinguish between
Safeguards these levels of
Information- safeguards
Modified information, which
Handling.'' would require
different marking,
storage, and
handling
requirements.
[[Page 64048]]
73.23(f)(2)................. The phrase The phrase
``Safeguards ``Safeguards
Information'' is Information'' is
changed to changed to
``Safeguards ``Safeguards
Information Information-
designated as Modified Handling''
Safeguards to better
Information- distinguish between
Modified these levels of
Handling.'' The safeguards
words ``nationwide information, which
overnight'' are require different
deleted. marking, storage,
and handling
requirements. The
removal of the
words ``nationwide
overnight''
indicates that
commercial delivery
companies
transporting SGI-M
would not have to
provide nationwide
overnight service.
SGI-M may be
transported by
trusted, local
carriers, so long
as the carrier has
computer tracking
capabilities.
73.23(f)(3)................. The words ``or The paragraph is
later'' are added reworded slightly
after ``Federal for clarification.
Information The phrase
Processing Standard ``safeguards or
[FIPS] 140-2.'' The security event'' is
phrase ``respond to changed to
a security event'' ``security
is changed to contingency event''
``respond to a to emphasize that
security the requirement is
contingency security-related,
event.'' The phrase and to maintain
``Safeguards consistency with
Information'' is other regulatory
changed to provisions. The
``Safeguards phrase ``or later''
Information is added to clarify
designated as that encryption
Safeguards technology that
Information- meets future
Modified Federal Information
Handling.'' Processing
Standards will be
acceptable. The
phrase ``Safeguards
Information'' is
changed to
``Safeguards
Information-
Modified Handling''
to better
distinguish between
these levels of
safeguards
information, which
require different
marking, storage,
and handling
requirement.
73.23(g)(1)................. The phrase ``Each The second sentence
file containing is edited to be
Safeguards more concise. The
Information'' is phrase ``Safeguards
changed to Information'' is
``Safeguards changed to
Information ``Safeguards
files.'' The phrase Information-
``Safeguards Modified Handling''
Information'' is to better
changed to distinguish between
``Safeguards these levels of
Information safeguards
designated as information, which
Safeguards require different
Information- marking, storage,
Modified and handling
Handling.'' requirements.
73.23(g)(2)................. The phrase ``files This paragraph is
shall be properly revised in response
labeled as `SGI- to comments that
Modified Handling' the proposed
'' is changed to language was too
``files shall be prescriptive. The
properly labeled to changes are
indicate the intended to allow
presence of more flexibility in
Safeguards document marking.
Information with The phrase
modified handling ``Safeguards
requirements.'' The Information'' is
phrase ``Safeguards changed to
Information'' is ``Safeguards
changed to Information-
``Safeguards Modified Handling''
Information to better
designated as distinguish between
Safeguards these levels of
Information- safeguards
Modified information, which
Handling.'' require different
marking, storage,
and handling
requirements.
73.23(g)(3)................. The word The word
``automated'' is ``automated''
deleted. The phrase unnecessarily
``Safeguards appeared in the
Information'' is original proposed
changed to rule and is
``Safeguards deleted. The phrase
Information ``Safeguards
designated as Information'' is
Safeguards changed to
Information- ``Safeguards
Modified Inforation-Modified
Handling.'' Handling'' to
better distinguish
between these
levels of
safeguards
information, which
would require
different marking,
storage, and
handling
requirements.
73.23(h).................... The word ``must'' in The word ``must'' is
the last sentence changed to
is changed to ``shall'' to be
``shall.'' The consistent with
phrase ``Safeguards Sec. 73.22(h).
Information'' is The phrase
changed to ``Safeguards
``Safeguards Information'' is
Information changed to
designated as ``Safeguards
Safeguards Information-
Information- Modified Handling''
Modified to better
Handling.'' distinguish between
these levels of
safeguards
information, which
require different
marking, storage,
and handling
requirements.
73.23(i).................... The phrase ``tearing This paragraph is
into small pieces'' revised to
is deleted from the eliminate redundant
second sentence. language and to
The third sentence clarify that
is changed from document
``Piece sizes one destruction results
half inch or in piece sizes no
smaller composed of wider than one-
several pages or quarter inch,
documents and thoroughly mixed.
thoroughly mixed The phrase
would be considered ``Safeguards
completely Information'' is
destroyed'' to changed to
``Piece sizes no ``Safeguards
wider than one Information-
quarter inch Modified Handling''
composed of several to better
pages or documents distinguish between
and thoroughly these levels of
mixed are Safeguards
considered Information, which
completely require different
destroyed.'' The marking, storage,
phrase ``Safeguards and handling
Information'' is requirements.
changed to
``Safeguards
Information
designated as
Safeguards
Information-Modifed
Handling.''
73.37(f)(2)(iv)............. This section is This change conforms
revised to read ``A cross-references in
statement that the part 73 with the
information revised proposed
described below in rule.
Sec. 73.37(f)(3)
is required by NRC
regulations to be
protected in
accordance with the
requirements of
Sec. Sec. 73.21
and 73.22.''
73.37(f)(3)(iii)............ This section is This change conforms
revised to read cross-references in
``For the case of a part 73 with the
single shipment revised proposed
whose schedule is rule.
not related to the
schedule of any
subsequent
shipment, a
statement that
schedule
information must be
protected in
accordance with the
provisions of Sec.
Sec. 73.21 and
73.22 until at
least 10 days after
the shipment has
entered or
originated within
the State.''
[[Page 64049]]
73.37(f)(3)(iv)............. This section is This change conforms
revised to read cross-references in
``For the case of a part 73 with the
shipment in a revised proposed
series of shipments rule.
whose schedules are
related, a
statement that
schedule
information must be
protected in
accordance with the
provisions of Sec.
Sec. 73.21 and
73.22 until 10 days
after the last
shipment in the
series has entered
or originated
within the State
and an estimate of
the date on which
the last shipment
in the series will
enter or originate
within the State.''
73.37(g).................... This section is This change conforms
revised to read cross-references in
``State officials, part 73 with the
State employees, revised proposed
and other rule.
individuals,
whether or not
licensees of the
Commission, who
receive schedule
information of the
kind specified in
Sec. 73.37(f)(3)
shall protect that
information against
unauthorized
disclosure as
specified in Sec.
Sec. 73.21 and
73.22.''
73.57....................... The revised proposed The title of this
rule would revise section would be
the title of this changed to reflect
section to read application of the
``Requirements for criminal history
criminal history check requirement,
checks of including
individuals granted fingerprinting, to
unescorted access employees of
to a nuclear power entities engaged in
facility or access an activity subject
to Safeguards to regulation by
Information.'' the Commission and
entities who have
provided written
notice to the
Commission of
intent to file an
application for
licensing,
certification,
permitting, or
approval of a
product subject to
regulation by the
Commission. This
change implements
the Energy Policy
Act of 2005.
73.57(a)(1)................. The revised proposed The original
rule adds the proposed rule has
phrase ``or to been revised to
engage in an implement the
activity subject to Energy Policy Act
regulation by the of 2005's
Commission'' to requirement that
existing Sec. all individuals
73.57(a)(1). with access to
Safeguards
Information undergo
an FBI criminal
history check,
including
fingerprinting.
73.57(a)(2)................. The revised proposed The original
rule adds the proposed rule has
phrase ``to engage been revised to
in an activity implement the
subject to Energy Policy Act
regulation by the of 2005's
Commission, as well requirement that
as each entity who all individuals
has provided with access to
written notice to Safeguards
the Commission of Information undergo
intent to file an an FBI criminal
application for history check,
licensing, including
certification, fingerprinting.
permitting, or
approval of a
product subject to
regulation by the
Commission'' to
existing Sec.
73.57(a)(2).
73.57(b)(2)(i).............. The revised proposed The phrase ``or
rule deletes the access to
phrase ``or for Safeguards
access to Information'' was
Safeguards deleted so that
Information.'' It this paragraph
adds a reference to would only address
Sec. 73.23. individuals exempt
from Sec.
73.57(b) for
purposes of
unescorted access
to nuclear power
facilities.
73.57(b)(2)(ii)............. The revised proposed The list of
rule revises the individuals exempt
list of individuals from the
exempt from Sec. requirements of
73.57(b)(1). The Sec. 73.57(b) for
phrase ``Employees purposes of access
of other agencies to SGI has been
of the United revised to be
States Government'' consistent with the
is changed to ``An list of individuals
employee of the exempt from the
Commission or the criminal history
Executive Branch of and background
the United States check requirements
Government.'' The for access to SGI
phrase ``the in Sec. Sec.
Governor of a State 73.22(b)(3) and
or his or her 73.23(b)(3).
designated employee Consistent with the
representatives'' statement of
is changed to ``The considerations
Governor of a State accompanying Sec.
or his or her 73.57 when it was
designated State first promulgated
employee (52 FR 6310; (March
representative.'' 2, 1987)), the list
The revised of exempt
proposed rule adds individuals
``Representatives continues to be
of the limited to
International individuals who
Atomic Energy have undergone the
Agency (IAEA) same or similar
engaged in criminal history
activities and background
associated with the checks as a
U.S./IAEA condition of
Safeguards employment or who
Agreement who have have been certified
been certified by by the NRC.
the NRC,''
``Federal, State or
local law
enforcement
personnel,''
``State Radiation
Control Program
Directors and State
Homeland Security
Advisors or their
designated State
employee
representatives,''
and ``Any agent,
contractor, or
consultant of
aforementioned
persons who has
undergone
equivalent criminal
history and
background checks''
to the list of
individuals exempt
from Sec.
73.57(b)(1). The
revised proposed
rule deletes
``individuals to
whom disclosure is
ordered pursuant to
Sec. 2.709(f)''
from the list.
[[Page 64050]]
73.57(e)(3)................. The following This paragraph makes
paragraph has been clear that an
added: ``In individual
addition to the participating in an
right to obtain NRC adjudication
records from the and seeking access
FBI in paragraph to SGI for use in
(e)(1) of this the adjudication,
section and the may appeal to the
right to initiate presiding officer a
challenge final adverse
procedures determination by
inparagraph (e)(2) the NRC Office of
of this section, an Administration on
individual the individual's
participating in an trustworthiness and
NRC adjudication reliability.
and seeking to
obtain SGI for use
in that
adjudication may
appeal a final
adverse
determination by
the NRC Office of
Administration to
the Presiding
Officer of the
proceeding.
Potential
witnesses,
participants
without attorneys,
and attorneys for
whom the NRC Office
of Administration
has made a final
adverse
determination on
trustworthiness and
reliability may
request that the
Chairman of the
Atomic Safety and
Licensing Board
Panel designate an
officer other than
the Presiding
Officer of the
proceeding to
review the adverse
determination.''
73.59....................... The title of this The changes in the
section is changed title of this
to: ``Relief from section is needed
fingerprinting, because of changes
identification and in the text to
criminal history broaden its scope
records checks and to include relief
background checks from the
for designated requirements for
categories of background checks.
individuals.'' The recently
promulgated Sec.
73.59 did not
relieve the
specified
categories of
individuals from
background checks
because no
requirement to
perform background
checks prior to
granting access to
SGI currently
existed. Thus, no
relief was needed.
Relieving these
categories of
individuals from
the fingerprinting
requirements while
at the same time
subjecting them to
background checks
would not be
consistent with the
underlying premise
that these
categories of
individuals are
trustworthy and
reliable by virtue
of their
occupational
status.
In addition, Sec. Section 73.59(a) is
73.59(a) would be being deleted in
deleted in its its entirety
entirety, including because that
the definition of definition of SGI
SGI. The remainder is captured in 10
of the section is CFR Sec. 73.2.
redesignated to Instead, a cross-
comply with Office reference to the
of the Federal definition of SGI
Register (and SGI-M) in Sec.
requirements. 73.2 is made.
including SGI-M
within the scope of
Sec. 73.59 is
necessary is
necessary to be
consistent with the
structure of the
rest of the
proposed SGI rule,
which refers to
both SGI and SGI-M.
Section 73.59(d) is Section 73.59(d) is
new and adds as a added because the
category of Commission has
individuals: ``The determined to grant
Comptroller General relief under Sec.
or an employee of 73.59 for the
the Government Comptroller General
Accountability or an employee of
Office who has the Government
undergone Accountability
fingerprinting for Office who has
a prior U.S. undergone
Government criminal fingerprinting for
history check.'' a prior U.S.
Government criminal
history check.
Section 73.59(f) This revision is
would be revised to necessary to
refer to both reflect the change
Safeguards in terminology in
Information and the FRN clarifying
Safeguards that SGI-M is
Information Safeguards
designated as Information.
Safeguards
Information-
Modified Handling
(SGI-M).
Section 73.59(k) is New Sec. 73.59(k)
also new and would carries over into
exempt ``Any agent, the new proposed
contractor, or rule the category
consultant of the * of individuals
* * persons who described in former
have undergone the proposed Sec. Sec.
equivalent criminal 73.22(b)(3)(vii)
history and and
background checks 73.23(b)(3)(vii).
to those required
by 10 CFR Sec.
Sec. 73.22(b) or
73.23(b).''
10 CFR part 73 Appendix I... A new Appendix I is In response to
added that defines comments, the
the quantities of Commission has
concern described included a table of
in the revised radionuclides and
proposed rule. quantities that
establishes the
``quantities of
concern''
referenced in this
revised proposed
rule. The table is
based on
International
Atomic Energy
Agency
recommendation in
its Code of Conduct
on the Safety and
Security of
Radioactive
Sources, and has
been used to
determine the types
and quantities of
materials that
warrant additional
security
requirements, some
of which have
already been issued
by order. Other
protective measures
are under
development based
in part on the
threshold
quantities
established in this
table.
Radium-226 is being Section 651(e) of
added to the the Energy Policy
listing of Act of 2005 amended
radionuclides. Section 11e. of the
Atomic Energy Act
of 1954 to include
in the definition
of byproduct
material ``any
discrete source of
radium-226 that is
produced,
extracted, or
converted after
extraction, before,
on, or after the
date of enactment
of this paragraph
for use for a
commercial,
medical, or
research
activity.''
[[Page 64051]]
76.113(c)................... The phrase ``and In response to
parts 25 and 95 of public comment,
this chapter'' is this paragraph has
added to the end of been revised. As
the first sentence. revised,
The second sentence Unclassified
reads: Controlled Nuclear
``Information Information would
designated by the be protected in
U.S. Department of accordance with DOE
Energy (DOE) as requirements.
Unclassified
Controlled Nuclear
Information must be
protected in
accordance with DOE
requirements.
150.15(a)(9)................ A cross-reference to A cross-reference to
Sec. 73.22 and Sec. 73.22 and
the phrase ``as the words ``as
applicable'' are applicable'' are
added. added for
completeness.
------------------------------------------------------------------------
D. Request for Specific Comment
A background check, which would contain as an element, a criminal
history check (including fingerprinting), is necessary for access to
SGI, in all circumstances, unless specifically exempt in accordance
with the concepts in Sec. 73.22(b)(3) and Sec. 73.23(b)(3). Those
provisions contain cross-reference to Sec. 73.59, which describes
categories of individuals who are exempt from the criminal history
check and background check requirements by virtue of their occupational
status. These exemptions are authorized by section 149(a)(4)(B) of the
AEA, under which the Commission may, by rule, exempt or relieve
individuals from the fingerprinting, identification, and criminal
history check requirements. The exercise of such authority pursuant to
section 149(a)(4)(B) requires a finding by the Commission that such
action is consistent with its obligations to promote the common defense
and security and to protect the health and safety of the public.'' In
the final rule promulgating Sec. 73.59, the Commission made the
required finding. The Commission is specifically seeking comment on the
appropriateness of these revised provisions, as they apply to various
categories of individuals.
V. Criminal Penalties
For the purpose of Section 223 of the Atomic Energy Act (AEA), the
Commission is proposing to amend 10 CFR parts 2, 30, 40, 50, 52, 60,
63, 70, 71, 72, 73, 76, and 150 under one or more of Sections 147,
161b., 161i., or 161o. of the AEA. Willful violations of the revised
proposed rule would be subject to criminal enforcement.
VI. Agreement State Issues
The rule proposes changes to parts 2, 30, 40, 50, 52, 60, 63, 70,
71, 72, 73, 76, and 150 would be considered to be Category NRC
compatibility and therefore are areas of exclusive NRC authority.
Nonetheless, the original proposed rule was provided to the Agreement
States for their review and comment prior to its publication of draft
rule text on the NRC Web site and the publication of the rule in the
Federal Register. Agreement States had an opportunity to review the
revised proposed rule prior to publication.
The Agreement States of Illinois and Washington commented on the
original proposed rule prior to publication in the Federal Register.
Both states expressed concern about the breadth of rule text reflecting
the Commission's authority to prohibit the unauthorized disclosure of
SGI relating to such quantities of special nuclear material, source,
and byproduct material as the Commission determines to be significant
to the public health and safety or the common defense and security. In
response to this concern, the Commission notes that it needs such broad
authority to adequately protect SGI, and Section 147 of the AEA
provides such authority to the Commission. The Commission has, however,
modified certain aspects of the revised proposed rule, e.g. the
definition of SGI, to more closely track the language in Section 147 of
the AEA.
An agency of the State of New York commented on the original
proposed rule and asserted that the Commission lacks the statutory
authority to impose regulations for the protection of SGI pertaining to
Agreement State licensees. According to these comments, the term
``licensee's or ``applicant's'' [detailed information] in Section 147
cannot be construed as inclusive of State licensees or applicants. As
explained previously in response to specific comments, the Commission
does not agree with this commenter's interpretation of Section 147.
VII. Voluntary Consensus Standards
The National Technology Transfer Act of 1995 (Pub. L. 104-113),
requires that Federal agencies use technical standards that are
developed or adopted by voluntary consensus standards bodies unless the
use of such a standard is inconsistent with applicable law or otherwise
impractical. In this revised proposed rule, the NRC is using the
following Government-unique standard: National Institute of Standards
and Technology, Federal Information Processing Standard [FIPS] PUB-140-
2, ``Security Requirements for Cryptographic Modules,'' May 25, 2001.
The NRC has determined that using this Government-unique standard is
justified because no voluntary consensus standard has been identified
that could be used instead. In addition, this Government-unique
standard was developed using the same procedures used to create a
voluntary consensus standard.
VIII. Finding of No Significant Impact: Environmental Assessment
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
subpart A of 10 CFR part 51, that this revised proposed rule, if
adopted, would not constitute a major Federal action significantly
affecting the quality of the human environment and, therefore, an
environmental impact statement is not required. The basis for this
determination is that the revised proposed rule relates to the
designation, handling and protection of SGI and the collection of
information on which a determination to grant individuals access to
this information is based. The determination of this environmental
assessment is that there would be no significant environmental impacts
from this action.
The NRC has sent a copy of the environmental assessment and the
revised proposed rule to every State Liaison Officer and requested
comments on the environmental assessment. No State provided comments on
the draft environmental assessment.
IX. Paperwork Reduction Act Statement
This proposed rule amends information collection requirements that
are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). This rule has been submitted to the
[[Page 64052]]
Office of Management and Budget for review and approval of the
information collection requirements.
Type of submission, new or revision: Revision.
The title of the information collection: 10 CFR part 73,
``Protection of Safeguards Information.''
The form number if applicable: Not applicable.
How often the collection is required: On occasion. Any person
(including an individual) or entity who is permitted access to SGI or
Safeguards Information designated for modified handling (SGI-M) must
undergo a background check, including fingerprinting, to establish
trustworthiness and reliability. That determination is valid for a 5-
year period. Licensees must mark and protect SGI or SGI-M information
from unauthorized disclosure on a continuous basis.
Who will be required or asked to report: Persons (including
individuals) or entities who are licensed, certified, or permitted to
engage in an activity subject to regulation by the Commission,
including utilization facilities; vendors; individuals who have filed
an application for a license or certificate to engage in Commission-
regulated activities; and individuals who have notified the Commission
in writing of an intent to file an application for licensing,
certification, permitting, or approval of a product or activity subject
to regulation by the Commission.
An estimate of the number of annual responses: 485.
The estimated number of annual respondents: 485.
An estimate of the total number of hours needed annually to
complete the requirement or request: 4,741 (9.78 hours per
recordkeeper).
Abstract: The NRC is proposing to amend its regulations for the
protection of Safeguards Information (SGI) and add requirements for
Safeguards Information for modified handling (SGI-M) to protect SGI and
SGI-M from inadvertent release and unauthorized disclosure which might
compromise the security of nuclear facilities and materials. The
proposed amendments would affect certain licensees, information, and
materials not currently subject to SGI regulations, but which are
within the scope of Commission authority under the Atomic Energy Act of
1954, as amended (AEA). The NRC originally published the proposed rule
in the Federal Register on February 11, 2005 (70 FR 7196). The NRC is
again publishing the proposed rule on SGI in order to allow the public
to comment on changes to the rule text. These changes are in response
to public comments and amendments to the AEA in the Energy Policy Act
of 2005 (EPAct) and Commission Orders issued to licensees authorized to
possess and transfer items containing certain quantities of radioactive
material.
The U.S. Nuclear Regulatory Commission is seeking public comment on
the potential impact of the information collections contained in this
proposed rule and on the following issues:
1. Is the proposed information collection 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?
A copy of the OMB clearance package may be viewed free of charge at
the NRC Public Document Room, One White Flint North, 11555 Rockville
Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and
rule are available at the NRC worldwide Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html
for 60 days after the
signature date of this notice and are also available at the RuleForum
site, http://ruleforum.llnl.gov.
Send comments on any aspect of these proposed information
collections, including suggestions for reducing the burden and on the
above issues, by November 30, 2006 to the Records and FOIA/Privacy
Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, or by Internet electronic mail to
INFOCOLLECTS@NRC.GOV and to the Desk Officer, John A. Asalone, Office
of Information and Regulatory Affairs, NEOB-10202, (3150-0002), Office
of Management and Budget, Washington, DC 20503. 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.
You may also e-mail comments to John_A._Asalone@omb.eop.gov or
comment by telephone at (202) 395-4650.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
X. Regulatory Analysis
The Commission has prepared a revised regulatory analysis on this
revised proposed rule. The revised analysis examines the costs and
benefits of the alternatives considered by the Commission. The revised
regulatory analysis is available for inspection in the NRC Public
Document Room, 11555 Rockville Pike, Rockville, MD 20852. The revised
regulatory analysis is also available electronically via the NRC
rulemaking Web site at http://ruleforum.llnl.gov. Single copies of the
revised analysis may be obtained from the Office of the General
Counsel, U.S. Nuclear Regulatory Commission, at 301-415-1633 or by e-
mail at mur@nrc.gov.
XI. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the NRC has determined that this rule, if adopted, would not
have a significant economic impact upon a substantial number of small
entities. The NRC estimates that the proposed regulation will affect
approximately 152 NRC licensees, 87 Agreement State licensees, 200
State contacts, and 29 applicants for licenses. The NRC estimates that
small businesses as defined by 10 CFR 2.810 comprise less than 1
percent of the total number of NRC licensees and state contacts
affected by this regulation. The NRC does not have information on the
small business status of the Agreement State licensees or applicants
for NRC and Agreement State licenses affected by this regulation,
therefore, in its February 11, 2005 original proposed rule and the
regulatory analysis developed in support of the original proposed rule,
the NRC requested public comments on the impact of the original
proposed rule on small businesses. No comments were received. In the
absence of information on the small business status of the Agreement
State licensees and applicants for NRC and Agreement State licenses
affected by this regulation and based on the small proportion of NRC
licensees that qualify as small entities, the NRC estimates that the
number of small entities among these licensees is also less than 1
percent. For a small entity, the implementation burden imposed by the
regulation is estimated to be 41.8 hours, and the annual burden is
estimated to be 3.5 hours.
The potential benefits of preventing disclosure of SGI by
unauthorized persons would significantly outweigh the economic impact
on small licensees.
[[Page 64053]]
XII. Backfit Analysis
The Commission has concluded, on the basis of the documented
evaluation in the revised regulatory analysis, that the majority of the
requirements in the revised proposed rule would not be backfits as
defined in 10 CFR 50.109(a)(4)(ii), 70.76(a)(4)(iii), 72.62, and
76.76(a)(4)(ii). The Commission has also concluded that the
requirements in the rule that would constitute backfits are necessary
to ensure insure that the facilities and materials described in the
rule provide adequate protection to the public health and safety and
are in accord with the common defense and security, as applicable.
Therefore, a backfit analysis is not required and the cost-benefit
standards of 10 CFR 50.109(a)(3), 70.76, 72.62, and 76.76, do not
apply. The documented evaluation in the revised regulatory analysis
includes a statement of the objectives of and the reasons for the
backfits that would be required by the revised proposed rule and sets
forth the Commission's conclusion that these backfits are not subject
to the cost-benefit standards of 10 CFR 50.109(a)(3), 70.76, 72.62, and
76.76.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 30
Byproduct material, Criminal penalties, Government contracts,
Intergovernmental relations, Isotopes, Nuclear materials, Radiation
protection, Reporting and recordkeeping requirements.
10 CFR Part 40
Criminal penalties, Government contracts, Hazardous materials
transportation, Nuclear materials, Reporting and recordkeeping
requirements, Source material, Uranium.
10 CFR Part 50
Antitrust, Classified information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.
10 CFR Part 52
Administrative practice and procedure, Antitrust, Backfitting,
Combined license, Early site permit, Emergency planning, Fees,
Inspection, Limited work authorization, Nuclear power plants and
reactors, Probabilistic risk assessment, Prototype, Reactor siting
criteria, Redress of site, Reporting and recordkeeping requirements,
Standard design, Standard design certification.
10 CFR Part 60
Criminal penalties, High-level waste, Nuclear materials, Nuclear
power plants and reactors, Reporting and recordkeeping requirements,
Waste treatment and disposal.
10 CFR Part 63
Criminal penalties, High-level waste, Nuclear power plants and
reactors, Reporting and recordkeeping requirements, Waste treatment and
disposal.
10 CFR Part 70
Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.
10 CFR Part 71
Criminal penalties, Hazardous materials transportation, Nuclear
materials, Packaging and containers, Reporting and recordkeeping
requirements.
10 CFR Part 72
Administrative practice and procedure, Criminal penalties, Manpower
training programs, Nuclear materials, Occupational safety and health,
Penalties, Radiation protection, Reporting and recordkeeping
requirements, Security measures, Spent fuel, Whistleblowing.
10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
10 CFR Part 76
Certification, Criminal penalties, Radiation protection, Reporting
and record keeping requirements, Security measures, Special nuclear
material, Uranium enrichment by gaseous diffusion.
10 CFR Part 150
Criminal penalties, Hazardous materials transportation,
Intergovernmental relations, Nuclear materials, Reporting and
recordkeeping requirements, Security measures, Source material, Special
nuclear material.
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 is proposing to
adopt the following amendments to 10 CFR parts 2, 30, 40, 50, 52, 60,
63, 70, 71, 72, 73, 76 and 150.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
1. The authority citation for part 2 is revised to read as follows:
Authority: Secs.149, 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231, 2169); sec. 191, as amended, Pub. L. 87-615, 76
Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42
U.S.C. 5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C.
3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat.
594 (2005). Section 2.101 also issued under secs. 53, 62, 63, 81,
103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as
amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec.
114(f), Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C.
10143(f)), sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42
U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections
2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103,
104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended
(42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.105 also
issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239).
Sections 2.200-2.206 also issued under secs. 161 b, i, o, 182, 186,
234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C.
2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C.
5846). Section 2.205(j) also issued under Pub. L. 101-410, 104 Stat.
90, as amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-
373 (28 U.S.C. 2461 note). Sections 2.600-2.606 also issued under
sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332).
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections
2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section
2.764 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat.
2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under
sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133), and 5 U.S.C.
552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L.
85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also
issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub.
L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued
under sec. 184 (42
[[Page 64054]]
U.S.C. 2234) and sec. 189, 68 stat. 955 (42 U.S.C. 2239). Appendix A
also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C.
2135).
2. In Sec. 2.4, a new definition for Safeguards Information is
added in alphabetical order to read as follows:
Sec. 2.4 Definitions.
* * * * *
Safeguards Information means information not classified as National
Security Information or Restricted Data which specifically identifies a
licensee's or applicant's detailed control and accounting procedures
for the physical protection of special nuclear material in quantities
determined by the Commission through order or regulation to be
significant to the public health and safety or the common defense and
security; detailed security measures (including security plans,
procedures, and equipment) for the physical protection of source,
byproduct, or special nuclear material in quantities determined by the
Commission through order or regulation to be significant to the public
health and safety or the common defense and security; security measures
for the physical protection and location of certain plant equipment
vital to the safety of production or utilization facilities; and any
other information within the scope of Section 147 of the Atomic Energy
Act of 1954, as amended, the unauthorized disclosure of which, as
determined by the Commission through order or regulation, could
reasonably be expected to have a significant adverse effect on the
health and safety of the public or the common defense and security by
significantly increasing the likelihood of sabotage or theft or
diversion of source, byproduct, or special nuclear material.
* * * * *
3. In Sec. 2.336, paragraph (f) is redesignated as (g), and a new
paragraph (f) is added to read as follows:
Sec. 2.336 General discovery.
* * * * *
(f)(1) In the event of a dispute over disclosure of documents and
records including Safeguards Information referred to in Sections 147
and 181 of the Atomic Energy Act, as amended, the presiding officer may
issue an order requiring disclosure if--
(i) The presiding officer finds that the individual seeking access
to Safeguards Information to participate in an NRC adjudication has the
requisite ``need to know'', as defined in Sec. 73.2;
(ii) The individual has undergone an FBI criminal history check,
unless exempt under Sec. Sec. 73.22(b)(3) or 73.23(b)(3), as
applicable, by submitting fingerprints to the NRC Office of
Administration, Security Processing Unit, Mail Stop T-6E46, U.S.
Nuclear Regulatory Commission, Washington D.C. 20555-0001, and
otherwise following the procedures in Sec. 73.57(d) for submitting and
processing of fingerprints. However, before an adverse determination by
the NRC Office of Administration on an individual's criminal history
check, the individual shall be afforded the protections provided by
Sec. 73.57; and
(iii) The NRC Office of Administration has found, based upon a
background check, that the individual is trustworthy and reliable,
unless exempt under Sec. Sec. 73.22(b)(3) or 73.23(b)(3), as
applicable. However, before an adverse determination on an individual's
background check for trustworthiness and reliability, the individual
shall be afforded the protections provided by Sec. 73.57.
(iv) Participants, potential witnesses, and attorneys for whom the
NRC Office of Administration has made a final adverse determination on
trustworthiness and reliability may request the presiding officer to
review the adverse determination. The request may also seek to have the
Chairman of the Atomic Safety and Licensing Board Panel designate an
officer other than the presiding officer of the proceeding to review
the adverse determination. For purposes of review, the adverse
determination must be in writing and set forth the grounds for the
determination. The request for review shall be served on the NRC staff
and may include additional information for review by the presiding
officer. The request must be filed within 15 days after receipt of the
adverse determination by the person against whom the adverse
determination has been made. Within 10 days of receipt of the request
for review and any additional information, the NRC staff will file a
response indicating whether the request and additional information has
caused the NRC Office of Administration to reverse its adverse
determination. The presiding officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The presiding officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(2) The presiding officer may include in an order any protective
terms and conditions (including affidavits of non-disclosure) as may be
necessary and appropriate to limit the disclosure to parties in the
proceeding, to interested States and other governmental entities
participating under Sec. 2.315(c), and to their qualified witnesses
and counsel.
(3) When Safeguards Information protected from unauthorized
disclosure under Section 147 of the Atomic Energy Act, as amended, is
received and possessed by a participant other than the NRC staff, it
must also be protected according to the requirements of Sec. 73.21 and
the requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
(4) The presiding officer may also prescribe additional procedures
to effectively safeguard and prevent disclosure of Safeguards
Information to unauthorized persons with minimum impairment of the
procedural rights which would be available if Safeguards Information
were not involved.
(5) In addition to any other sanction that may be imposed by the
presiding officer for violation of an order issued pursuant to this
paragraph, violation of an order pertaining to the disclosure of
Safeguards Information protected from disclosure under Section 147 of
the Atomic Energy Act, as amended, may be subject to a civil penalty
imposed under Sec. 2.205.
(6) For the purpose of imposing the criminal penalties contained in
Section 223 of the Atomic Energy Act, as amended, any order issued
pursuant to this paragraph with respect to Safeguards Information is
considered to be an order issued under Section 161b. of the Atomic
Energy Act.
* * * * *
4. In Sec. 2.705, paragraph (c)(2) is revised and new paragraphs
(c)(3) through (7) are added to read as follows:
Sec. 2.705 Discovery-additional methods.
* * * * *
(c) * * *
(2) In the case of documents and records including Safeguards
Information referred to in Sections 147 and 181 of the Atomic Energy
Act, as amended, the presiding officer may issue an order requiring
disclosure if--
(i) The presiding officer finds that the individual seeking access
to Safeguards Information in order to participate in an NRC proceeding
has the requisite ``need to know'', as defined in Sec. 73.2;
(ii) The individual has undergone an FBI criminal history check,
unless exempt under Sec. Sec. 73.22(b)(3) or 73.23(b)(3), as
applicable by submitting fingerprints to the NRC Office of
Administration, Security Processing
[[Page 64055]]
Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, Washington
DC 20555-0001, and otherwise following the procedures in Sec. 73.57(d)
for submitting and processing fingerprints. However, before an adverse
determination on an individual's criminal history check by the NRC
Office of Administration, the individual shall be afforded the
protections of Sec. 73.57; and
(iii) The NRC Office of Administration has found, based upon a
background check, that the individual is trustworthy and reliable,
unless exempt under Sec. Sec. 73.22(b)(3) or 73.23(b)(3). However,
before an adverse determination on an individual's background check for
trustworthiness and reliability, the individual shall be afforded the
protections of Sec. 73.57.
(iv) Participants, potential witnesses, and attorneys for whom the
NRC Office of Administration has made a final adverse determination on
trustworthiness and reliability may request the presiding officer to
review the adverse determination. The request may also seek to have the
Chairman of the Atomic Safety and Licensing Board Panel designate an
officer other than the presiding officer of the proceeding to review
the adverse determination. For purposes of review, the adverse
determination must be in writing and set forth the grounds for the
determination. The request for review shall be served on the NRC staff
and may include additional information for review by the presiding
officer. The request must be filed within 15 days after receipt of the
adverse determination by the person against whom the adverse
determination has been made. Within 10 days of receipt of the request
for review and any additional information, the NRC staff will file a
response indicating whether the request and additional information has
caused the NRC Office of Administration to reverse its adverse
determination. The presiding officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The presiding officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(3) The presiding officer may include in an order any protective
terms and conditions (including affidavits of non-disclosure) as may be
necessary and appropriate to limit the disclosure to parties in the
proceeding, to interested States and other governmental entities
participating under Sec. 2.315(c), and to their qualified witnesses
and counsel.
(4) When Safeguards Information protected from unauthorized
disclosure under Section 147 of the Atomic Energy Act, as amended, is
received and possessed by a participant other than the NRC staff, it
must also be protected according to the requirements of Sec. 73.21 and
the requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
(5) The presiding officer may also prescribe additional procedures
to effectively safeguard and prevent disclosure of Safeguards
Information to unauthorized persons with minimum impairment of the
procedural rights which would be available if Safeguards Information
were not involved.
(6) In addition to any other sanction that may be imposed by the
presiding officer for violation of an order issued pursuant to this
paragraph, violation of an order pertaining to the disclosure of
Safeguards Information protected from disclosure under Section 147 of
the Atomic Energy Act, as amended, may be subject to a civil penalty
imposed under Sec. 2.205.
(7) For the purpose of imposing the criminal penalties contained in
Section 223 of the Atomic Energy Act, as amended, any order issued
pursuant to this paragraph with respect to Safeguards Information is
considered to be an order issued under Section 161b. of the Atomic
Energy Act.
* * * * *
5. In Sec. 2.709, paragraph (f) is revised to read as follows:
Sec. 2.709 Discovery against NRC staff.
* * * * *
(f) (1) In the case of requested documents and records (including
Safeguards Information referred to in Sections 147 and 181 of the
Atomic Energy Act, as amended) exempt from disclosure under Sec.
2.390, the presiding officer may issue an order requiring disclosure to
the Executive Director for Operations or a delegate of the Executive
Director for Operations, to produce the document or records (or any
other order issued ordering production of the document or records) if--
(i) The presiding officer finds that the individual seeking access
to Safeguards Information to participate in an NRC adjudication has the
requisite ``need to know'', as defined in Sec. 73.2;
(ii) The individual has undergone an FBI criminal history check,
unless exempt under Sec. Sec. 73.22(b)(3) or 73.23(b)(3), by
submitting fingerprints to the NRC Office of Administration, Security
Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission,
Washington DC 20555-0001, and otherwise following the procedures in
Sec. 73.57(d) for submitting and processing fingerprints. However,
before an adverse determination by the NRC Office of Administration on
an individual's criminal history check, the individual shall be
afforded the protections of Sec. 73.57; and
(iii) The NRC Office of Administration finds, based on a background
check, that the individual is trustworthy and reliable, unless exempt
under Sec. Sec. 73.22(b)(3) or 73.23(b)(3), as applicable. However,
before an adverse determination by the NRC Office of Administration on
an individual's background check for trustworthiness and reliability,
the individual shall be afforded the protections of Sec. 73.57.
(iv) Participants, potential witnesses, and attorneys for whom the
NRC Office of Administration has made a final adverse determination on
trustworthiness and reliability may request the presiding officer to
review the adverse determination. The request may also seek to have the
Chairman of the Atomic Safety and Licensing Board Panel designate an
officer other than the presiding officer of the proceeding to review
the adverse determination. For purposes of review, the adverse
determination must be in writing and set forth the grounds for the
determination. The request for review shall be served on the NRC staff
and may include additional information for review by the presiding
officer. The request must be filed within 15 days after receipt of the
adverse determination by the person against whom the adverse
determination has been made. Within 10 days of receipt of the request
for review and any additional information, the NRC staff will file a
response indicating whether the request and additional information has
caused the NRC Office of Administration to reverse its adverse
determination. The presiding officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The presiding officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(2) The presiding office may include in an order any protective
terms and
[[Page 64056]]
conditions (including affidavits of non-disclosure) as may be necessary
and appropriate to limit the disclosure to parties in the proceeding,
to interested States and other governmental entities participating
under Sec. 2.315(c), and to their qualified witnesses and counsel.
(3) When Safeguards Information protected from disclosure under
Section 147 of the Atomic Energy Act, as amended, is received and
possessed by a participant other than the NRC staff, it must also be
protected according to the requirements of Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
(4) The presiding officer may also prescribe additional procedures
to effectively safeguard and prevent disclosure of Safeguards
Information to unauthorized persons with minimum impairment of the
procedural rights which would be available if Safeguards Information
were not involved.
(5) In addition to any other sanction that may be imposed by the
presiding officer for violation of an order issued pursuant to this
paragraph, violation of an order pertaining to the disclosure of
Safeguards Information protected from disclosure under Section 147 of
the Atomic Energy Act, as amended, may be subject to a civil penalty
imposed under Sec. 2.205.
(6) For the purpose of imposing the criminal penalties contained in
Section 223 of the Atomic Energy Act, as amended, any order issued
pursuant to this paragraph with respect to Safeguards Information is
considered to be an order issued under Section 161b. of the Atomic
Energy Act.
* * * * *
6. In Sec. 2.1003, paragraph (a)(4)(iii) is revised to read as
follows:
Sec. 2.1003 Availability of material.
(a) * * *
(4) * * *
(iii) Which constitutes Safeguards Information under Sec. 73.21
and the requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
* * * * *
7. In Sec. 2.1010, paragraph (b)(6) is revised to read as follows:
Sec. 2.1010 Pre-License application presiding officer.
* * * * *
(b) * * *
(6) Whether the material should be disclosed under a protective
order containing such protective terms and conditions (including
affidavits of nondisclosure) as may be necessary and appropriate to
limit the disclosure to potential parties, interested governmental
participants, and parties in the proceeding, or to their qualified
witnesses and counsel.
(i) The Pre-License Application Presiding Officer may issue an
order requiring disclosure of Safeguards Information if--
(A) The Pre-License Application Presiding Officer finds that the
individual seeking access to Safeguards Information in order to
participate in an NRC adjudication has the requisite ``need to know'',
as defined in Sec. 73.2;
(B) The individual has undergone an FBI criminal history check,
unless exempt under Sec. Sec. 73.22(b)(3) or 73.23(b)(3), as
applicable by submitting fingerprints to the NRC Office of
Administration, Security Processing Unit, Mail Stop T-6E46, U.S.
Nuclear Regulatory Commission, Washington DC 20555-0001, and otherwise
following the procedures in Sec. 73.57(d) for submitting and
processing fingerprints. However, before an adverse determination by
the NRC Office of Administration on an individual's criminal history,
the individual shall be afforded the protections of Sec. 73.57; and
(C) A finding by the NRC Office of Administration, based on a
background check, that the individual is trustworthy and reliable,
unless exempt under Sec. Sec. 73.22(b)(3) or 73.23(b)(3), as
applicable. However, before an adverse determination by the NRC Office
of Administration on an individual's background check for
trustworthiness and reliability, the individual shall be afforded the
protections on Sec. 73.57.
(D) Participants, potential witnesses, and attorneys for whom the
NRC Office of Administration has made a final adverse determination on
trustworthiness and reliability may request the presiding officer to
review the adverse determination. The request may also seek to have the
Chairman of the Atomic Safety and Licensing Board Panel designate an
officer other than the presiding officer of the proceeding to review
the adverse determination. For purposes of review, the adverse
determination must be in writing and set forth the grounds for the
determination. The request for review shall be served on the NRC staff
and may include additional information for review by the presiding
officer. The request must be filed within 15 days after receipt of the
adverse determination by the person against whom the adverse
determination has been made. Within 10 days of receipt of the request
for review and any additional information, the NRC staff will file a
response indicating whether the request and additional information has
caused the NRC Office of Administration to reverse its adverse
determination. The presiding officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The presiding officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(ii) The Pre-License Application Presiding Officer may include in
an order any protective terms and conditions (including affidavits of
non-disclosure) as may be necessary and appropriate to limit the
disclosure to parties in the proceeding, to interested states and other
governmental entities participating under Sec. 2.315(c), and to their
qualified witnesses and counsel.
(iii) When Safeguards Information, protected from disclosure under
Section 147 of the Atomic Energy Act of 1954, as amended, is received
and possessed by a potential party, interested government participant,
or party, other than the NRC staff, it shall also be protected
according to the requirements of Sec. 73.21 and the requirements of
Sec. Sec. 73.22 or 73.23 of this chapter, as applicable.
(iv) The Pre-License Application Presiding Officer may also
prescribe such additional procedures as will effectively safeguard and
prevent disclosure of Safeguards Information to unauthorized persons
with minimum impairment of the procedural rights which would be
available if Safeguards Information were not involved.
(v) In addition to any other sanction that may be imposed by the
Pre-License Application Presiding Officer for violation of an order
pertaining to the disclosure of Safeguards Information protected from
disclosure under Section 147 of the Atomic Energy Act of 1954, as
amended, the entity in violation may be subject to a civil penalty
imposed pursuant to Sec. 2.205.
(vi) For the purpose of imposing the criminal penalties contained
in Section 223 of the Atomic Energy Act of 1954, as amended, any order
issued pursuant to this paragraph with respect to Safeguards
Information shall be deemed to be an order issued under Section 161b.
of the Atomic Energy Act of 1954, as amended.
* * * * *
[[Page 64057]]
PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL
8. The authority citation for part 30 is revised to read as
follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note);
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 549 (2005).
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat.
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
9. In Sec. 30.32, paragraph (j) is added to read as follows:
Sec. 30.32 Application for specific licenses.
* * * * *
(j) Each applicant for a license for byproduct material subject to
the requirements of part 73 of this chapter shall protect Safeguards
Information against unauthorized disclosure in accordance with the
requirements in Sec. Sec. 73.21 and 73.23 of this chapter, as
applicable.
10. In Sec. 30.34, paragraph (j) is added to read as follows:
Sec. 30.34 Terms and conditions of licenses.
* * * * *
(j) Each licensee subject to the requirements of part 73 of this
chapter shall ensure that Safeguards Information is protected against
unauthorized disclosure in accordance with the requirements in
Sec. Sec. 73.21 and 73.23 of this chapter, as applicable.
PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL
11. The authority citation for part 40 is revised to read as
follows:
Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2),
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094,
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274,
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C.
2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy
Policy Act of 2005, Pub. L. No. 109-59, 119 Stat. 594 (2005).
Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec.
184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also
issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
12. In Sec. 40.31, paragraph (m) is added to read as follows:
Sec. 40.31 Application for specific licenses.
* * * * *
(m) Each applicant for a license for the possession of source
material at a facility for the production of uranium hexafluoride shall
protect Safeguards Information against unauthorized disclosure in
accordance with the requirements in Sec. Sec. 73.21 and 73.22 of this
chapter, as applicable. Each applicant for a license for source
material subject to the requirements of part 73 of this chapter shall
protect Safeguards Information against unauthorized disclosure in
accordance with the requirements in Sec. 73.21 and the requirements of
Sec. 73.22 or Sec. 73.23 of this chapter, as applicable.
13. In Sec. 40.41, paragraph (h) is added to read as follows:
Sec. 40.41 Terms and conditions of licenses.
* * * * *
(h) Each licensee subject to the requirements of part 73 of this
chapter shall ensure that Safeguards Information is protected against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements of Sec. 73.22 or Sec. 73.23 of this
chapter, as applicable.
PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
14. The authority citation for part 50 is revised to read as
follows:
Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act
of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005). Section 50.7 also
issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C.
5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955,
as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103
also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C.
2138).
Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec.
185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and
Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853
(42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec.
204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and
50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C.
2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42
U.S.C. 2152). Sections 50.80--50.81 also issued under sec. 184, 68
Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
15. In Sec. 50.34, paragraph (e) is revised to read as follows:
Sec. 50.34 Contents of applications; technical information.
* * * * *
(e) Each applicant for a license to operate a production or
utilization facility shall protect Safeguards Information against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements in Sec. 73.22 or Sec. 73.23 of this
chapter, as applicable.
* * * * *
16. In Sec. 50.54, paragraph (v) is revised to read as follows:
Sec. 50.54 Conditions of licenses.
* * * * *
(v) Each licensee subject to the requirements of part 73 of this
chapter shall ensure that Safeguards Information is protected against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements in Sec. 73.22 or Sec. 73.23 of this
chapter, as applicable.
* * * * *
PART 52--EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND
COMBINED LICENSES FOR NUCLEAR POWER PLANTS
17. The authority citation for part 52 is revised to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84,
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42
U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub.
L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section
150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C.
2282).
18. In Sec. 52.17, paragraph (d) is added to read as follows:
[[Page 64058]]
Sec. 52.17 Contents of applications.
* * * * *
(d) Each applicant for an early site permit under this part shall
protect Safeguards Information against unauthorized disclosure in
accordance with the requirements in Sec. Sec. 73.21 and 73.22 of this
chapter, as applicable.
19. In Sec. 52.47, paragraph (c) is added to read as follows:
Sec. 52.47 Contents of applications.
* * * * *
(c) Each applicant for a standard design certification under this
part shall protect Safeguards Information against unauthorized
disclosure in accordance with the requirements in Sec. Sec. 73.21 and
73.22 of this chapter, as applicable.
20. In Sec. 52.79, paragraph (e) is added to read as follows:
Sec. 52.79 Contents of application; technical information.
* * * * *
(e) Each applicant for a combined license under this subpart shall
protect Safeguards Information against unauthorized disclosure in
accordance with the requirements in Sec. Sec. 73.21 and 73.22 of this
chapter, as applicable.
PART 60--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC
REPOSITORIES
21. The authority citation for part 60 is revised to read as
follows:
Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071,
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2228, as amended (42 U.S.C. 10134, 10141), and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).
22. In Sec. 60.21, paragraph (d) is added to read as follows:
Sec. 60.21 Content of application.
* * * * *
(d) The applicant for a license to receive and possess source,
special nuclear, and byproduct material at a geologic repository
operations area sited, constructed, or operated in accordance with the
Nuclear Waste Policy Act of 1982 shall protect Safeguards Information
in accordance with the requirements in Sec. 73.21 and the requirements
in Sec. 73.22 or Sec. 73.23 of this chapter, as applicable, and shall
protect classified information in accordance with the requirements of
parts 25 and 95 of this chapter, as applicable.
23. In Sec. 60.42, paragraph (d) is added to read as follows:
Sec. 60.42 Conditions of license.
* * * * *
(d) The licensee shall ensure that Safeguards Information is
protected against unauthorized disclosure in accordance with the
requirements in Sec. 73.21 and the requirements in Sec. 73.22 or
Sec. 73.23 of this chapter, as applicable. The licensee shall ensure
that classified information is protected in accordance with the
requirements of parts 25 and 95 of this chapter, as applicable.
PART 63--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC
REPOSITORY AT YUCCA MOUNTAIN, NEVADA
24. The authority citation for part 63 is revised to read as
follows:
Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071,
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2238, as amended (42 U.S.C. 10134, 10141), and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).
25. In Sec. 63.21, paragraph (d) is added to read as follows:
Sec. 63.21 Content of application.
* * * * *
(d) The applicant for a license to receive and possess source,
special nuclear, and byproduct material at a geologic repository at
Yucca Mountain, Nevada, shall protect Safeguards Information in
accordance with the requirements in Sec. 73.21, and the requirements
in Sec. 73.22, or Sec. 73.23 of this chapter, as applicable, and
shall protect classified information in accordance with the
requirements of parts 25 and 95 of this chapter, as applicable.
26. In Sec. 63.42, paragraph (e) is added to read as follows:
Sec. 63.42 Conditions of license.
* * * * *
(e) The licensee shall ensure that Safeguards Information is
protected against unauthorized disclosure in accordance with the
requirements in Sec. 73.21, and the requirements in Sec. 73.22, or
Sec. 73.23 of this chapter, as applicable, and shall protect
classified information in accordance with the requirements of parts 25
and 95 of this chapter, as applicable.
PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
27. The authority citation for part 70 is revised to read as
follows:
Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, (42 U.S.C.
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended,
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005). Sections 70.1(c) and
70.20a(b) also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat.
2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec.
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42
U.S.C. 2234). Section 70.81 also issued under secs. 186, 187, 68
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.82 also issued under
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).
28. In Sec. 70.22, paragraph (l) is revised to read as follows:
Sec. 70.22 Contents of applications.
* * * * *
(l) Each applicant for a license shall protect Safeguards
Information against unauthorized disclosure in accordance with the
requirements in Sec. 73.21 and the requirements of Sec. 73.22, or
73.23 of this chapter, as applicable, and shall protect classified
information in accordance with the requirements of parts 25 and 95 of
this chapter, as applicable.
* * * * *
29. In Sec. 70.32, paragraph (j) is revised to read as follows:
Sec. 70.32 Conditions of licenses.
* * * * *
(j) Each licensee who possesses special nuclear material, or who
transports, or delivers to a carrier for transport, a formula quantity
of strategic special nuclear material, special nuclear material of
moderate strategic significance, or special nuclear material of low
strategic significance, or more than 100 grams of irradiated reactor
fuel shall ensure that Safeguards Information is protected against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements of Sec. 73.22 or Sec. 73.23 of this
chapter, as applicable, and shall protect classified information in
accordance
[[Page 64059]]
with the requirements of parts 25 and 95 of this chapter, as
applicable.
* * * * *
PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL
30. The authority citation for part 71 is revised to read as
follows:
Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat.
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201,
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242,
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
No. 109-58, 119 Stat. 594 (2005). Section 71.97 also issued under
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.
31. Section 71.11 is added to read as follows:
Sec. 71.11 Protection of Safeguards Information.
Each licensee, certificate holder, or applicant for a Certificate
of Compliance for a transportation package for transport of irradiated
reactor fuel, strategic special nuclear material, a critical mass of
special nuclear material, or byproduct material in quantities
determined by the Commission through order or regulation to be
significant to the public health and safety or the common defense and
security, shall protect Safeguards Information against unauthorized
disclosure in accordance with the requirements in Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF
SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-
RELATED GREATER THAN CLASS C WASTE
32. The authority citation for part 72 is revised to read as
follows:
Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183,
184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953,
954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233,
2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat.
688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-
486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135,
137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148,
Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153,
10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C.
3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat.
549 (2005).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d),
Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b),
10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat.
955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42
U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub.
L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also
issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-
425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101,
10137(a), 10161(h)). Subparts K and L are also issued under sec.
133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252
(42 U.S.C. 10198).
33. In Sec. 72.22, paragraph (f) is added to read as follows:
Sec. 72.22 Contents of application: General and financial
information.
* * * * *
(f) Each applicant for a license under this part to receive,
transfer, and possess power reactor spent fuel, power reactor-related
Greater than Class C (GTCC) waste, and other radioactive materials
associated with spent fuel storage in an independent spent fuel storage
installation (ISFSI) shall protect Safeguards Information against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements of Sec. 73.22 or Sec. 73.23, as
applicable.
34. In Sec. 72.44, paragraph (h) is added to read as follows:
Sec. 72.44 License conditions.
* * * * *
(h) Each licensee subject to the requirements of part 73 of this
chapter shall protect Safeguards Information against unauthorized
disclosure in accordance with the requirements of Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23, as applicable.
35. In Sec. 72.212, paragraph (b)(5)(v) is redesignated as
(b)(5)(vi) and a new paragraph (b)(5)(v) is added to read as follows:
Sec. 72.212 Conditions of general license issued under Sec. 72.210.
* * * * *
(b) * * *
(5) * * *
(v) Each general licensee that receives and possesses power reactor
spent fuel and other radioactive materials associated with spent fuel
storage shall protect Safeguards Information against unauthorized
disclosure in accordance with the requirements of Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
* * * * *
36. In Sec. 72.236, paragraph (n) is added to read as follows:
Sec. 72.236 Specific requirements for spent fuel storage cask
approval and fabrication.
* * * * *
(n) Safeguards Information shall be protected against unauthorized
disclosure in accordance with the requirements of Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS
37. The authority citation for part 73 is revised to read as
follows:
Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended,
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201,
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
No. 109-58, 119 Stat. 594 (2005).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
38. In Sec. 73.1, paragraph (b)(7) is revised to read as follows:
Sec. 73.1 Purpose and scope.
* * * * *
(b) * * *
(7) This part prescribes requirements for the protection of
Safeguards Information (including the designation or marking:
Safeguards Information--Modified Handling) in the hands of any person,
whether or not a licensee of the Commission, who produces, receives, or
acquires that information.
* * * * *
39. In Sec. 73.2, new definitions Background Check, Individual
Authorized Access to Safeguards Information, Individual Authorized
Access to Safeguards Information--Modified Handling, Quantities of
Concern, Safeguards Information--Modified Handling, and Trustworthiness
and Reliability, are added in alphabetical order and the definitions of
Safeguards Information and ``Need to Know'' are revised to read as
follows:
Sec. 73.2 Definitions.
* * * * *
Background check includes, at a minimum, a criminal history check,
verification of identity, employment history, education, and personal
references. Individuals engaged in activities subject to regulation by
the
[[Page 64060]]
Commission, applicants for licenses to engage in Commission-regulated
activities, and individuals who have notified the Commission in writing
of an intent to file an application for licensing, certification,
permitting, or approval of a product or activity subject to regulation
by the Commission are required under Sec. 73.57 to conduct criminal
history checks before granting access to Safeguards Information. A
background check must be sufficient to support the trustworthiness and
reliability determination so that the person performing the check and
the Commission have assurance that granting individuals access to
Safeguards Information does not constitute an unreasonable risk to the
public health and safety or the common defense and security.
* * * * *
Individual Authorized Access to Safeguards Information is an
individual authorized to have access to and handle such information
pursuant to the requirements of Sec. Sec. 73.21 and 73.22.
Individual Authorized Access to Safeguards Information--Modified
Handling is an individual authorized to have access to and handle such
information pursuant to the requirements of Sec. Sec. 73.21 and 73.23
of this chapter.
* * * * *
``Need to Know'' means a determination by a person having
responsibility for protecting Safeguards Information that a proposed
recipient's access to Safeguards Information is necessary in the
performance of official, contractual, licensee, applicant, or
certificate holder employment. In an adjudication, ``need to know''
means a determination by the originator of the information that the
information is necessary to enable the proposed recipient to proffer
and/or adjudicate a specific contention in that proceeding, and the
proposed recipient of the specific Safeguards Information possesses
demonstrable knowledge, skill, training, or education to effectively
utilize the specific Safeguards Information in the proceeding. Where
the information is in the possession of the originator and the NRC
staff (dual possession), whether in its original form or incorporated
into another document by the recipient, the NRC staff makes the
determination. In the event of a dispute regarding the ``need to know''
determination, the presiding officer of the proceeding shall make the
``need to know'' determination.
* * * * *
Quantities of Concern means the quantities of the radionuclides
meeting or exceeding the threshold limits set forth in Table I-1 of
Appendix I of this part.
* * * * *
Safeguards Information means information not classified as National
Security Information or Restricted Data which specifically identifies a
licensee's or applicant's detailed control and accounting procedures
for the physical protection of special nuclear material in quantities
determined by the Commission through order or regulation to be
significant to the public health and safety or the common defense and
security; detailed security measures (including security plans,
procedures, and equipment) for the physical protection of source,
byproduct, or special nuclear material in quantities determined by the
Commission through order or regulation to be significant to the public
health and safety or the common defense and security; security measures
for the physical protection of and location of certain plant equipment
vital to the safety of production or utilization facilities; and any
other information within the scope of Section 147 of the Atomic Energy
Act of 1954, as amended, the unauthorized disclosure of which, as
determined by the Commission through order or regulation, could
reasonably be expected to have a significant adverse effect on the
health and safety of the public or the common defense and security by
significantly increasing the likelihood of sabotage or theft or
diversion of source, byproduct, or special nuclear material.
Safeguards Information--Modified Handling is the designation or
marking applied to Safeguards Information which the Commission has
determined requires handling requirements modified from the specific
Safeguards Information handling requirements.
* * * * *
Trustworthiness and reliability are characteristics of an
individual considered dependable in judgment, character, and
performance, such that disclosure of Safeguards Information to that
individual does not constitute an unreasonable risk to the public
health and safety or common defense and security. A determination of
trustworthiness and reliability is based upon a background check.
* * * * *
40. Section 73.8(b) is revised to read as follows:
Sec. 73.8 Information collection requirements: OMB approval.
* * * * *
(b) The approved information collection requirements contained in
this part appear in Sec. Sec. 73.5, 73.20, 73.21, 73.22, 73.23, 73.24,
73.25, 73.26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 73.56,
73.57, 73.60, 73.67, 73.70, 73.71, 73.72, 73.73, 73.74, and appendices
B, C, and G.
41. Section 73.21 is revised to read as follows:
Sec. 73.21 Protection of Safeguards Information: Performance
Requirements.
(a) General performance requirement. (1) Each licensee, applicant,
or other person who produces, receives, or acquires Safeguards
Information shall ensure that it is protected against unauthorized
disclosure. To meet this general performance requirement, such
licensees, applicants, or other persons subject to this section shall:
(i) Establish, implement, and maintain an information protection
system that includes the applicable measures for Safeguards Information
specified in Sec. 73.22 related to: Power reactors; a formula quantity
of strategic special nuclear material; transportation of or delivery to
a carrier for transportation of a formula quantity of strategic special
nuclear material or more than 100 grams of irradiated reactor fuel;
uranium hexafluoride production facilities; fuel fabrication
facilities; uranium enrichment facilities; independent spent fuel
storage installations; and geologic repository operations areas.
(ii) Establish, implement, and maintain an information protection
system that includes the applicable measures for Safeguards Information
specified in Sec. 73.23 related to: Panoramic and underwater
irradiators that possess greater than 370 TBq (10,000 Ci) of byproduct
material in the form of sealed sources; manufacturers and distributors
of items containing source, byproduct, or special nuclear material in
greater than or equal to Category 2 quantities of concern; research and
test reactors that possess special nuclear material of moderate
strategic significance or special nuclear material of low strategic
significance; and transportation of greater than or equal to Category 2
quantities of concern.
(2) Information protection procedures employed by Federal, State,
and local law enforcement agencies are presumed to meet the general
performance requirement in Sec. 73.21(a)(1).
(b) Commission Authority. (1) Pursuant to Section 147 of the Atomic
Energy Act of 1954, as amended, the
[[Page 64061]]
Commission may impose, by order or regulation, Safeguards Information
protection requirements different from or in addition to those
specified in this part on any person who produces, receives, or
acquires Safeguards Information.
(2) The Commission may require, by regulation or order, that
information within the scope of Section 147 of the Atomic Energy Act of
1954, as amended, related to facilities or materials not specifically
described in Sec. Sec. 73.21, 73.22 or 73.23 be protected under this
part.
42. Section 73.22 is added to read as follows:
Sec. 73.22 Protection of Safeguards Information: Specific
Requirements.
This section contains specific requirements for the protection of
Safeguards Information related to power reactors; a formula quantity of
strategic special nuclear material; transportation of or delivery to a
carrier for transportation of a formula quantity of strategic special
nuclear material or more than 100 grams of irradiated reactor fuel;
uranium hexafluoride production facilities, fuel fabrication
facilities, and uranium enrichment facilities; independent spent fuel
storage installations; and geologic repository operations areas.
(a) Information to be protected. The types of information and
documents that must be protected as Safeguards Information include non-
public security-related requirements such as:
(1) Physical Protection. Information not classified as Restricted
Data or National Security Information related to physical protection,
including:
(i) The composite physical security plan for the facility or site;
(ii) Site specific drawings, diagrams, sketches, or maps that
substantially represent the final design features of the physical
security system not easily discernible by members of the public;
(iii) Alarm system layouts showing the location of intrusion
detection devices, alarm assessment equipment, alarm system wiring,
emergency power sources for security equipment, and duress alarms not
easily discernible by members of the public;
(iv) Physical security orders and procedures issued by the licensee
for members of the security organization detailing duress codes, patrol
routes and schedules, or responses to security contingency events;
(v) Site-specific design features of plant security communications
systems;
(vi) Lock combinations, mechanical key design, or passwords
integral to the physical security system;
(vii) Documents and other matter that contain lists or locations of
certain safety-related equipment explicitly identified in the documents
as vital for purposes of physical protection, as contained in security
plans, contingency measures, or plant specific safeguards analyses;
(viii) The composite safeguards contingency plan/measures for the
facility or site;
(ix) The composite facility guard qualification and training plan/
measures disclosing features of the physical security system or
response procedures;
(x) Information relating to on-site or off-site response forces,
including size, armament of response forces, and arrival times of such
forces committed to respond to security contingency events;
(xi) The Adversary Characteristics Document or other implementing
guidance associated with the Design Basis Threat in Sec. 73.1; and
(xii) Engineering and safety analyses, security-related procedures
or scenarios, and other information revealing site-specific details of
the facility or materials if the unauthorized disclosure of such
analyses, procedures, scenarios, or other information could reasonably
be expected to have a significant adverse effect on the health and
safety of the public or the common defense and security by
significantly increasing the likelihood of theft, diversion, or
sabotage of source, byproduct, or special nuclear material.
(2) Physical protection in transit. Information not classified as
Restricted Data or National Security Information related to the
transportation of, or delivery to a carrier for transportation of a
formula quantity of strategic special nuclear material or more than 100
grams of irradiated reactor fuel, including:
(i) The composite physical security plan for transportation;
(ii) Schedules and itineraries for specific shipments of source
material, byproduct material, high-level nuclear waste, or irradiated
reactor fuel. Schedules for shipments of source material, byproduct
material, high-level nuclear waste, or irradiated reactor fuel are no
longer controlled as Safeguards Information 10 days after the last
shipment of a current series;
(iii) Vehicle immobilization features, intrusion alarm devices, and
communications systems;
(iv) Arrangements with and capabilities of local police response
forces, and locations of safe havens;
(v) Limitations of communications during transport;
(vi) Procedures for response to security contingency events;
(vii) Information concerning the tactics and capabilities required
to defend against attempted sabotage, or theft and diversion of formula
quantities of special nuclear material, irradiated reactor fuel, or
related information; and
(viii) Engineering or safety analyses, security-related procedures
or scenarios and other information related to the protection of the
transported material if the unauthorized disclosure of such analyses,
procedures, scenarios, or other information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of source,
byproduct, or special nuclear material.
(3) Inspections, audits and evaluations. Information not classified
as National Security Information or Restricted Data pertaining to
safeguards and security inspections and reports, including:
(i) Portions of inspection reports, evaluations, audits, or
investigations that contain details of a licensee's or applicant's
physical security system or that disclose uncorrected defects,
weaknesses, or vulnerabilities in the system. Disclosure of corrected
defects, weaknesses, or vulnerabilities is subject to an assessment
taking into account such factors as trending analyses and the impacts
of disclosure on licensees having similar physical security systems;
and
(ii) Reports of investigations containing general information may
be released after corrective actions have been completed, unless
withheld pursuant to other authorities, e.g., the Freedom of
Information Act (5 U.S.C. 552).
(4) Correspondence. Portions of correspondence insofar as they
contain Safeguards Information as set forth in paragraphs (a)(1)
through (a)(3) of this section.
(5) Other information within the scope of Section 147 of the Atomic
Energy Act of 1954, as amended, that the Commission determines by order
or regulation could reasonably be expected to have a significant
adverse effect on the health and safety of the public or the common
defense and security by significantly increasing the likelihood of
theft, diversion, or sabotage of source, byproduct, or special nuclear
material or a facility.
(b) Conditions for access.
(1) Except as the Commission may otherwise authorize, no person may
have access to Safeguards Information unless the person has an
established ``need to know'' for the information and has undergone a
Federal Bureau of
[[Page 64062]]
Investigation criminal history check using the procedures set forth in
Sec. 73.57.
(2) In addition, a person to be granted access to SGI must be
trustworthy and reliable, based on a background check or other means
approved by the Commission.
(3) The categories of individuals specified in 10 CFR 73.59 are
exempt from the criminal history and background check requirements in
paragraphs (b)(1) and (b)(2) of this section by virtue of their
occupational status:
(4) For persons participating in an NRC adjudicatory proceeding
other than those specified in Sec. 73.59, the ``need to know''
determination shall be made by the originator of the Safeguards
Information upon receipt of a request for access to the Safeguards
Information. Where the information is in the possession of the
originator and the NRC staff, whether in its original form or
incorporated into another document by the recipient, the NRC staff
shall make the determination. In the event of a dispute regarding the
``need to know'' determination, the presiding officer of the proceeding
shall determine whether the ``need to know'' findings in Sec. 73.2 can
be made.
(5) Except as the Commission may otherwise authorize, no person may
disclose Safeguards Information to any other person except as set forth
in this section.
(c) Protection while in use or storage.
(1) While in use, matter containing Safeguards Information must be
under the control of an individual authorized access to Safeguards
Information. This requirement is satisfied if the Safeguards
Information is attended by such an individual even though the
information is in fact not constantly being used. Safeguards
Information within alarm stations, or rooms continuously occupied by
authorized individuals need not be stored in a locked security storage
container.
(2) While unattended, Safeguards Information must be stored in a
locked security storage container. The container shall not identify the
contents of the matter contained and must preclude access by
individuals not authorized access in accordance with the provisions of
this section. Knowledge of lock combinations protecting Safeguards
Information must be limited to a minimum number of personnel for
operating purposes who have a ``need to know'' and are otherwise
authorized access to Safeguards Information in accordance with the
provisions of this part. Access to lock combinations must be strictly
controlled so as to prevent disclosure to an individual not authorized
access to Safeguards Information.
(d) Preparation and marking of documents or other matter.
(1) Each document or other matter that contains Safeguards
Information as described in Sec. 73.21(a)(1)(i) and this section must
be marked to indicate the presence of such information in a conspicuous
manner on the top and bottom of each page. The first page of the
document must also contain:
(i) The name, title, and organization of the individual authorized
to make a Safeguards Information determination, and who has determined
that the document contains Safeguards Information;
(ii) The date the determination was made; and
(iii) An indication that unauthorized disclosure will be subject to
civil and criminal sanctions.
(2) In addition to the markings at the top and bottom of each page,
any transmittal letters or memoranda to or from the NRC which do not in
themselves contain Safeguards Information shall be marked to indicate
that attachments or enclosures contain Safeguards Information but that
the transmittal document does not (i.e., ``When separated from
Safeguards Information enclosure(s), this document is decontrolled'').
(3) Any transmittal document forwarding Safeguards Information must
alert the recipient that protected information is enclosed.
Certification that a document or other media contains Safeguards
Information must include the name and title of the certifying official
and date designated. Portion marking is required only for
correspondence to and from the NRC (i.e., cover letters, but not
attachments) that contains Safeguards Information. The portion marking
must be sufficient to allow the recipient to identify and distinguish
those sections of the transmittal document or other information
containing the Safeguards Information from non-Safeguards Information.
(4) Marking of documents containing or transmitting Safeguards
Information shall, at a minimum include the words ``Safeguards
Information'' to ensure identification of protected information for the
protection of facilities and material covered by Sec. 73.22.
(e) Reproduction of matter containing Safeguards Information.
Safeguards Information may be reproduced to the minimum extent
necessary consistent with need without permission of the originator.
Equipment used to reproduce Safeguards Information must be evaluated to
ensure that unauthorized individuals cannot access Safeguards
Information (e.g., unauthorized individuals cannot access SGI by
gaining access to retained memory or network connectivity).
(f) External transmission of documents and material.
(1) Documents or other matter containing Safeguards Information,
when transmitted outside an authorized place of use or storage, must be
packaged in two sealed envelopes or wrappers to preclude disclosure of
the presence of protected information. The inner envelope or wrapper
must contain the name and address of the intended recipient and be
marked on both sides, top and bottom, with the words ``Safeguards
Information.'' The outer envelope or wrapper must be opaque, addressed
to the intended recipient, must contain the address of the sender, and
may not bear any markings or indication that the document contains
Safeguards Information.
(2) Safeguards Information may be transported by any commercial
delivery company that provides service with computer tracking features,
U.S. first class, registered, express, or certified mail, or by any
individual authorized access pursuant to these requirements.
(3) Except under emergency or extraordinary conditions, Safeguards
Information shall be transmitted outside an authorized place of use or
storage only by (a) NRC approved secure electronic devices, such as
facsimiles or telephone devices, provided that transmitters and
receivers implement processes that will provide high assurance that
Safeguards Information is protected before and after the transmission
or (b) electronic mail through the internet, provided that (i) the
information is encrypted by the NRC-approved encryption modules and
algorithms; (ii) the information is produced by a self contained secure
automatic data process system; and (iii) transmitters and receivers
implement the information handling processes that will provide high
assurance that Safeguards Information is protected before and after
transmission. Physical security events required to be reported pursuant
to Sec. 73.71 are considered to be extraordinary conditions.
(g) Processing of Safeguards Information on electronic systems.
(1) Safeguards Information may be stored, processed or produced on
a stand-alone computer (or computer system) for processing of
Safeguards Information. ``Stand-alone'' means a computer or computer
system to which access is limited to individuals authorized access to
Safeguards Information. A stand-alone computer or
[[Page 64063]]
computer system shall not be physically or in any other way connected
to a network accessible by users who are not authorized access to
Safeguards Information.
(2) Each computer not located within an approved and lockable
security storage container that is used to process Safeguards
Information must have a removable storage medium with a bootable
operating system. The bootable operating system must be used to load
and initialize the computer. The removable storage medium must also
contain the software application programs, and all data must be
processed and saved on the same removable storage medium. The removable
storage medium must be secured in a locked security storage container
when not in use.
(3) A mobile device (such as a laptop computer) may also be used
for the processing of Safeguards Information provided the device is
secured in a locked security storage container when not in use. Other
systems may be used if approved for security by the appropriate NRC
office.
(h) Removal from Safeguards Information category. Documents
originally containing Safeguards Information must be removed from the
Safeguards Information category at such time as the information no
longer meets the criteria contained in this part. A review of such
documents to make that determination shall be conducted every 10 years.
Documents that are 10 years or older and designated as SGI or SGI-M
shall be reviewed for a decontrol determination if they are currently
in use or removed from storage. Care must be exercised to ensure that
any document decontrolled not disclose Safeguards Information in some
other form or be combined with other unprotected information to
disclose Safeguards Information. The authority to determine that a
document may be decontrolled shall be exercised only by the NRC or with
NRC approval, or if possible, in consultation with the individual or
organization that made the original determination.
(i) Destruction of matter containing Safeguards Information.
Documents or other media containing Safeguards Information shall be
destroyed when no longer needed. The information can be destroyed by
burning, shredding or any other method that precludes reconstruction by
means available to the public at large. Piece sizes no wider than one
quarter inch composed of several pages or documents and thoroughly
mixed are considered completely destroyed.
43. Section 73.23 is added to read as follows:
Sec. 73.23 Protection of Safeguards Information-Modified Handling:
Specific Requirements.
This section contains specific requirements for the protection of
Safeguards Information related to panoramic and underwater irradiators
that possess greater than 370 TBq (10,000 Ci) of byproduct material in
the form of sealed sources; manufacturers and distributors of items
containing source, byproduct, or special nuclear material in greater
than or equal to Category 2 quantities of concern; transportation of
more than 1,000 Tbq (27,000 Ci) but less than or equal to 100 grams of
spent nuclear fuel; research and test reactors that possess special
nuclear material of moderate strategic significance or special nuclear
material of low strategic significance; and transportation of greater
than or equal to Category 2 quantities of concern. The requirements of
this section distinguish Safeguards Information requiring modified
handling requirements (SGI-M) from Safeguards Information for
facilities and materials needing a higher level of protection, as set
forth in Sec. 73.22.
(a) Information to be protected. The types of information and
documents that must be protected as Safeguards Information-Modified
Handling include non-public security-related requirements such as
protective measures, interim compensatory measures, additional security
measures, and the following, as applicable:
(1) Physical Protection. Information not classified as Restricted
Data or National Security Information related to physical protection,
including:
(i) The composite physical security plan for the facility or site;
(ii) Site specific drawings, diagrams, sketches, or maps that
substantially represent the final design features of the physical
security system not easily discernible by members of the public;
(iii) Alarm system layouts showing the location of intrusion
detection devices, alarm assessment equipment, alarm system wiring,
emergency power sources for security equipment, and duress alarms not
easily discernible by members of the public;
(iv) Physical security orders and procedures issued by the licensee
for members of the security organization detailing duress codes, patrol
routes and schedules, or responses to security contingency events;
(v) Site specific design features of plant security communications
systems;
(vi) Lock combinations, mechanical key design, or passwords
integral to the physical security system;
(vii) The composite facility guard qualification and training plan/
measures disclosing features of the physical security system or
response procedures;
(viii) Descriptions of security activities which disclose features
of the physical security system or response measures;
(ix) Information relating to onsite or offsite response forces,
including size, armament of the response forces, and arrival times of
such forces committed to respond to security contingency events; and
(x) Engineering and safety analyses, security-related procedures or
scenarios, and other information revealing site-specific details of the
facility or materials if the unauthorized disclosure of such analyses,
procedures, scenarios, or other information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of source,
byproduct, or special nuclear material.
(2) Physical protection in transit. Information not classified as
Restricted Data or National Security Information related to the
physical protection of shipments of more than 1000 Tbq (27,000 Ci) but
less than or equal to 100 grams of spent nuclear fuel, source material
and byproduct material in Category 2 quantities of concern, and special
nuclear material in less than a formula quantity (except for those
materials covered under Sec. 73.22), including:
(i) Information regarding transportation security measures,
including physical security plans and procedures, immobilization
devices, and escort requirements, more detailed than NRC regulations;
(ii) Scheduling and itinerary information for shipments (scheduling
and itinerary information for shipments that are inherently self-
disclosing, such as a shipment that created extensive news coverage or
an announcement by a public official confirming receipt, may be
decontrolled after shipment departure. Scheduling and itinerary
information for shipments that are not inherently self-disclosing may
be decontrolled 2 days after the shipment is completed. Scheduling and
itinerary information used for the purpose of preplanning,
coordination, and advance notification may be shared with others on a
``need to know'' basis and need not
[[Page 64064]]
be designated as Safeguards Information-Modified Handling);
(iii) Arrangements with and capabilities of local police response
forces, and locations of safe havens;
(iv) Details of alarm and communication systems, communication
procedures, and duress codes;
(v) Procedures for response to security contingency events; and
(vi) Engineering or safety analyses, security-related procedures or
scenarios and other information related to the protection of the
transported material if the unauthorized disclosure of such analyses,
procedures, scenarios, or other information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of source,
byproduct, or special nuclear material.
(3) Inspections, audits and evaluations. Information not classified
as National Security Information or Restricted Data pertaining to
safeguards and security inspections and reports, including:
(i) Portions of inspection reports, evaluations, audits, or
investigations that contain details of a licensee's or applicant's
physical security system or that disclose uncorrected defects,
weaknesses, or vulnerabilities in the system. Disclosure of corrected
defects, weaknesses, or vulnerabilities is subject to an assessment
taking into account such factors as trending analyses and the impacts
of disclosure on licensees having similar physical security systems;
and
(ii) Reports of investigations containing general information may
be released after the corrective actions have been completed, unless
withheld pursuant to other authorities, e.g., the Freedom of
Information Act (5 U.S.C. 552).
(4) Correspondence. Portions of correspondence insofar as they
contain Safeguards Information designated as Safeguards Information-
Modifed Handling, as set forth in paragraphs (a)(1) through (a)(3) of
this section.
(5) Other information within the scope of Section 147 of the Atomic
Energy Act of 1954, as amended, that the Commission determines by order
or regulation could reasonably be expected to have a significant
adverse effect on the health and safety of the public or the common
defense and security by significantly increasing the likelihood of
theft, diversion, or sabotage of source, byproduct, or special nuclear
material or a facility.
(b) Conditions for access,
(1) Except as the Commission may otherwise authorize, no person may
have access to Safeguards Information designated as Safeguards
Information-Modified Handling unless the person has an established
``need to know'' for the information and has undergone a Federal Bureau
of Investigation criminal history check using the procedures set forth
in Sec. 73.57.
(2) In addition, a person to be granted access to SGI must be
trustworthy and reliable, based on a background check or other means
approved by the Commission.
(3) The categories of individuals specified in 10 CFR Sec. 73.59
are exempt from the background check requirements in paragraphs (b)(1)
and (b)(2) of this section by virtue of their occupational status:
(4) For persons participating in an NRC adjudicatory proceeding
other than those specified in Sec. 73.59, the ``need to know''
determination shall be made by the originator of the Safeguards
Information upon receipt of a request for access to the Safeguards
Information. Where the information is in the possession of the
originator and the NRC staff, whether in its original form or
incorporated into another document by the recipient, the NRC staff
shall make the determination. In the event of a dispute regarding the
``need to know'' determination, the presiding officer of the proceeding
shall determine whether the ``'need to know''' findings in Sec. 73.2
can be made.
(5) Except as the Commission may otherwise authorize, no person may
disclose Safeguards Information to any other person except as set forth
in this section.
(c) Protection while in use or storage.
(1) While in use, matter containing Safeguards Information
designated as Safeguards Information-Modified Handling must be under
the control of an individual authorized access to such information.
This requirement is satisfied if the Safeguards Information designated
as Safeguards Information-Modified Handling is attended by such an
individual even though the information is in fact not constantly being
used. Safeguards Information designated as Safeguards Information-
Modified Handling within alarm stations, or rooms continuously occupied
by authorized individuals, need not be locked in a file drawer or
cabinet.
(2) While unattended, Safeguards Information designated as
Safeguards Information-Modified Handling must be stored in a locked
file drawer or cabinet. The container shall not identify the contents
of the matter contained and must preclude access by individuals not
authorized access in accordance with the provisions of this section.
Knowledge of lock combinations or access to keys protecting Safeguards
Information designated as Safeguards Information-Modified Handling must
be limited to a minimum number of personnel for operating purposes who
have a ``need to know'' and are otherwise authorized access to
Safeguards Information in accordance with the provisions of this part.
Access to lock combinations must be strictly controlled so as to
prevent disclosure to an individual not authorized access to Safeguards
Information designated as Safeguards Information-Modified Handling.
(d) Preparation and marking of documents or other matter.
(1) Each document or other matter that contains Safeguards
Information designated as Safeguards Information-Modified Handling as
described in Sec. 73.23(a) and in this section must be marked to
indicate the presence of Safeguards Information with modified handling
requirements in a conspicuous manner on the top and bottom of each
page. The first page of the document must also contain:
(i) The name, title, and organization of the individual authorized
to make a ``Safeguards Information designated as Safeguards
Information-Modified Handling'' determination, and who has determined
that the document contains Safeguards Information designated as
Safeguards Information-Modified Handling;
(ii) The date the determination was made; and
(iii) An indication that unauthorized disclosure will be subject to
civil and criminal sanctions.
(2) In addition to the markings at the top and bottom of each page,
any transmittal letters or memoranda to or from the NRC which do not in
themselves contain Safeguards Information designated as Safeguards
Information-Modified Handling shall be marked to indicate that
attachments or enclosures contain Safeguards Information designated as
Safeguards Information-Modified Handling but that the transmittal
document does not (i.e., ``When separated from Safeguards Information
designated as Safeguards Information-Modified Handling enclosure(s),
this document is decontrolled'').
(3) Any transmittal document forwarding Safeguards Information
designated as Safeguards Information-Modified Handling must alert the
recipient that protected information is
[[Page 64065]]
enclosed. Certification that a document or other media contains
Safeguards Information designated as Safeguards Information-Modified
Handling must include the name and title of the certifying official and
date designated. Portion marking is required only for correspondence to
and from the NRC (i.e., cover letters, but not attachments) that
contains Safeguards Information designated as Safeguards Information-
Modified Handling. The portion marking must be sufficient to allow the
recipient to identify and distinguish those sections of the transmittal
document or other information containing the Safeguards Information
from non-Safeguards Information.
(4) Marking of documents containing or transmitting Safeguards
Information with modified handling requirements shall, at a minimum
include the words ``Safeguards Information-Modified Handling'' to
ensure identification of protected information for the protection of
facilities and material covered by Sec. 73.23.
(e) Reproduction of matter containing Safeguards Information
designated as Safeguards Information-Modified Handling. Safeguards
Information designated as Safeguards Information-Modified Handling may
be reproduced to the minimum extent necessary, consistent with need,
without permission of the originator. Equipment used to reproduce
Safeguards Information designated as Safeguards Information-Modified
Handling must be evaluated to ensure that unauthorized individuals
cannot access the information (e.g., unauthorized individuals cannot
access SGI by gaining access to retained memory or network
connectivity).
(f) External transmission of documents and material.
(1) Documents or other matter containing Safeguards Information
designated as Safeguards Information-Modified Handling, when
transmitted outside an authorized place of use or storage, must be
packaged in two sealed envelopes or wrappers to preclude disclosure of
the presence of protected information. The inner envelope or wrapper
must contain the name and address of the intended recipient and be
marked on both sides, top and bottom, with the words ``Safeguards
Information-Modified Handling.'' The outer envelope or wrapper must be
opaque, addressed to the intended recipient, must contain the address
of the sender, and may not bear any markings or indication that the
document contains Safeguards Information designated as Safeguards
Information-Modified Handling.
(2) Safeguards Information designated Safeguards Information-
Modified Handling may be transported by any commercial delivery company
that provides service with computer tracking features, U.S. first
class, registered, express, or certified mail, or by any individual
authorized access pursuant to these requirements.
(3) Except under emergency or extraordinary conditions, Safeguards
Information designated as Safeguards Information-Modified Handling must
be transmitted electronically only by protected telecommunications
circuits (including facsimile) or encryption (Federal Information
Processing Standard [FIPS] 140-2 or later) approved by the appropriate
NRC office. For the purpose of this section, emergency or extraordinary
conditions are defined as any circumstances that require immediate
communications in order to report, summon assistance for, or respond to
a security contingency event or an event that has potential security
significance. Physical security events required to be reported pursuant
to Sec. 73.71 are considered to be extraordinary conditions.
(g) Processing of Safeguards Information-Modified Handling on
electronic systems.
(1) Safeguards Information designated for modified handling may be
stored, processed or produced on a computer or computer system,
provided that the system is assigned to the licensee's or contractor's
facility. Safeguards Information designated as Safeguards Information-
Modified Handling files must be protected, either by a password or
encryption, to prevent unauthorized individuals from gaining access.
Word processors such as typewriters are not subject to these
requirements as long as they do not transmit information off-site.
(Note: if Safeguards Information designated as Safeguards Information-
Modified Handling is produced on a typewriter, the ribbon must be
removed and stored in the same manner as other Safeguards Information
designated as Safeguards Information-Modified Handling.)
(2) Safeguards Information designated as Safeguards Information-
Modified Handling files may be transmitted over a network if the file
is encrypted. In such cases, the licensee will select a commercially
available encryption system that the National Institute of Standards
and Technology (NIST) has validated as conforming to Federal
Information Processing Standards (FIPS). Safeguards Information
designated as Safeguards Information-Modified Handling files shall be
properly labeled to indicate the presence of Safeguards Information
with modified handling requirements and saved to removable media and
stored in a locked file drawer or cabinet.
(3) A mobile device (such as a laptop computer) may also be used
for the processing of Safeguards Information designated as Safeguards
Information-Modified Handling provided the device is secured in an
appropriate locked storage container when not in use. Other systems may
be used if approved for security by the appropriate NRC office.
(h) Removal from Safeguards Information-Modified Handling category.
Documents originally containing Safeguards Information designated as
Safeguards Information-Modified Handling must be removed from the
Safeguards Information category at such time as the information no
longer meets the criteria contained in this Part. A review of such
documents to make that determination shall be conducted every 10 years.
Documents that are 10 years or older and designated as SGI or SGI-M
shall be reviewed for a decontrol determination if they are currently
in use or removed from storage. Care must be exercised to ensure that
any document decontrolled shall not disclose Safeguards Information in
some other form or be combined with other unprotected information to
disclose Safeguards Information. The authority to determine that a
document may be decontrolled shall be exercised only by the NRC or with
NRC approval, or if possible, in consultation with the individual or
organization that made the original determination.
(i) Destruction of matter containing Safeguards Information
designated as Safeguards Information-Modified Handling. Documents or
other media containing Safeguards Information shall be destroyed when
no longer needed. The information can be destroyed by burning,
shredding, or any other method that precludes reconstruction by means
available to the public at large. Piece sizes no wider than one quarter
inch composed of several pages or documents and thoroughly mixed are
considered completely destroyed.
44. In Sec. 73.37, paragraphs (f)(2)(iv), (f)(3)(iii) and (iv),
and (g) are revised as follows:
Sec. 73.37 Requirement for the physical protection of irradiated
reactor fuel in transit.
(f) * * *
(2) * * *
(iv) A statement that the information described below in Sec.
73.37(f)(3) is required by NRC regulations to be
[[Page 64066]]
protected in accordance with the requirements of Sec. Sec. 73.21 and
73.22.
(3) * * *
(iii) For the case of a single shipment whose schedule is not
related to the schedule of any subsequent shipment, a statement that
schedule information must be protected in accordance with the
provisions of Sec. Sec. 73.21 and 73.22 until at least 10 days after
the shipment has entered or originated within the state.
(iv) For the case of a shipment in a series of shipments whose
schedules are related, a statement that schedule information must be
protected in accordance with the provisions of Sec. Sec. 73.21 and
73.22 until 10 days after the last shipment in the series has entered
or originated within the state and an estimate of the date on which the
last shipment in the series will enter or originate within the state.
* * * * *
(g) State officials, state employees, and other individuals,
whether or not licensees of the Commission, who receive schedule
information of the kind specified in Sec. 73.37(f)(3) shall protect
that information against unauthorized disclosure as specified in
Sec. Sec. 73.21 and 73.22.
45. In Sec. 73.57 paragraphs (a)(1) and (2) and (b)(2)(i) and (ii)
are revised and paragraph (e)(3) is added to read as follows:
Sec. 73.57 Requirements for criminal history checks of individuals
granted unescorted access to a nuclear power facility or access to
Safeguards Information.
(a) General. (1) Each licensee who is authorized to operate a
nuclear power reactor under part 50 or to engage in an activity subject
to regulation by the Commission shall comply with the requirements of
this section.
(2) Each applicant for a license to operate a nuclear power reactor
under part 50 of this chapter or to engage in an activity subject to
regulation by the Commission, as well as each entity who has provided
written notice to the Commission of intent to file an application for
licensing, certification, permitting, or approval of a product subject
to regulation by the Commission shall submit fingerprints for those
individuals who will have access to Safeguards Information.
(b) * * *
(2) * * *
(i) For unescorted access to the nuclear power facility or (but
must adhere to provisions contained in Sec. Sec. 73.21 and 73.22): NRC
employees and NRC contractors on official agency business; individuals
responding to a site emergency in accordance with the provisions of
Sec. 73.55(a); a representative of the International Atomic Energy
Agency (IAEA) engaged in activities associated with the U.S./IAEA
Safeguards Agreement at designated facilities who has been certified by
the NRC; law enforcement personnel acting in an official capacity;
State or local government employees who have had equivalent reviews of
FBI criminal history data; and individuals employed at a facility who
possess ``Q'' or ``L'' clearances or possess another active government
granted security clearance, i.e, Top Secret, Secret, or Confidential;
(ii) For access to Safeguards Information only but must adhere to
provisions contained in Sec. Sec. 73.21, 73.22, and 73.23: The
categories of individuals specified in 10 CFR Sec. 73.59.
* * * * *
(e) * * *
(3) In addition to the right to obtain records from the FBI in
paragraph (e)(1) of this section and the right to initiate challenge
procedures in paragraph (e)(2) of this section, an individual
participating in an NRC adjudication and seeking to obtain SGI for use
in that adjudication may appeal a final adverse determination by the
NRC Office of Administration to the Presiding Officer of the
proceeding. Potential witnesses, participants without attorneys, and
attorneys for whom the NRC Office of Administration has made a final
adverse determination on trustworthiness and reliability may request
that the Chairman of the Atomic Safety and Licensing Board Panel
designate an officer other than the presiding officer of the proceeding
to review the adverse determination.
* * * * *
46. In Sec. 73.59 is revised to read as follows:
Sec. 73.59. Relief from fingerprinting, identification and criminal
history records checks and background checks for designated categories
of individuals.
Fingerprinting, and the identification and criminal history records
checks required by section 149 of the Atomic Energy Act of 1954, as
amended, and background checks are not required for the following
individuals prior to granting access to Safeguards Information or
Safeguards Information designated as Safeguards Information--Modifed
Handling as defined in 10 CFR 73.2:
(a) An employee of the Commission or the Executive Branch of the
United States government who has undergone fingerprinting for a prior
U.S. government criminal history check;
(b) A member of Congress;
(c) An employee of a member of Congress or Congressional committee
who has undergone fingerprinting for a prior U.S. government criminal
history check;
(d) The Comptroller General or an employee of the Government
Accountability Office who has undergone fingerprinting for a prior U.S.
Government criminal history check.
(e) The Governor of a State or his or her designated State employee
representative;
(f) A representative of a foreign government organization that is
involved in planning for, or responding to, nuclear or radiological
emergencies or security incidents who the Commission approves for
access to Safeguards Information or Safeguards Information designated
as Safeguards Information--Modifed Handling;
(g) Federal, State, or local law enforcement personnel;
(h) State Radiation Control Program Directors and State Homeland
Security Advisors or their designated State employee representatives;
(i) Agreement State employees conducting security inspections on
behalf of the NRC pursuant to an agreement executed under section
274.i. of the Atomic Energy Act;
(j) Representatives of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who have been certified by the NRC;
(k) Any agent, contractor, or consultant of the aforementioned
persons who has undergone equivalent criminal history and background
checks to those required by 10 CFR Sec. Sec. 73.22(b) or 73.23(b).
47. A new Appendix I to part 73 is added to read as follows:
Appendix I to Part 73--Category 1 and 2 Radioactive Materials
[[Page 64067]]
Table I-1.--Quantities of Concern Threshold Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category 1 Category 2
Radionuclides -------------------------------------------------------------------------------------------------------------------
Terabecquerels (TBq) Curies (Ci)1 Terabecquerels (TBq) Curies (Ci)1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Americium-241....................... 6x10\1\ 1.6x10\3\ 6x10-\1\ 1.6x10\1\
Americium-241/Be.................... 6x10\1\ 1.6x10\3\ 6x10-\1\ 1.6x10\1\
Californium-252..................... 2x101 5.4x10\2\ 2x10-\1\ 5.4
Curium-244.......................... 5x10\1\ 1.4x10\3\ 5x10-\1\ 1.4x10\1\
Cobalt-60........................... 3x10\1\ 8.1x10\2\ 3x10-\1\ 8.1
Cesium-137.......................... 1x10\2\ 2.7x10\3\ 1 2.7x10\1\
Gadolinium-153...................... 1x10\3\ 2.7x10\4\ 1x10\1\ 2.7x10\2\
Iridium-192......................... 8x10\1\ 2.2x10\3\ 8x10-\1\ 2.2x10\1\
Promethium-147...................... 4x10\4\ 1.1x10\6\ 4x10\2\ 1.1x10\4\
Plutonium-238....................... 6x10\1\ 1.6x10\3\ 6x10-\1\ 1.6x10\1\
Plutonium-239/Be.................... 6x10\1\ 1.6x10\3\ 6x10-\1\ 1.6x10\1\
Radium-226.......................... 4x10\1\ 1.1x10\3\ 4x10-\1\ 1.1x10\1\
Selenium-75......................... 2x10\2\ 5.4x10\3\ 2 5.4x10\1\
Strontium-90 (Y-90)................. 1x10\3\ 2.7x10\4\ 1x10\1\ 2.7x10\2\
Thulium-170......................... 2x10\4\ 5.4x10\5\ 2x10\2\ 5.4x10\3\
Ytterbium-169....................... 3x10\2\ 8.1x10\3\ 3 8.1x10\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The regulatory standard values are given in TBq. Curie (Ci) values are provided for practical usefulness only and are rounded after conversion.
Calculations Concerning Multiple Sources or Multiple Radionuclides
The ``sum of fractions'' methodology for evaluating combinations of
multiple sources or multiple radionuclides, is to be used in
determining whether a facility or activity meets or exceeds the
threshold limits and is thus subject to the physical and/or information
security requirements of this part.
I. If multiple sources and/or multiple radionuclides are present in
a facility or activity, the sum of the fractions of the activity of
each of the radionuclides must be determined to verify the facility or
activity is less than the Category 1 or 2 limits of Table 1, as
appropriate. Otherwise, if the calculated sum of the fractions ratio,
using the following equation, is greater than or equal to 1.0, then the
facility or activity meets or exceeds the threshold limits of Table 1
and the applicable physical and/or information security provisions of
this part apply.
II. Use the equation below to calculate the sum of the fractions
ratio by inserting the actual activity of the applicable radionuclides
from Table 1 or of the individual sources (of the same radionuclides
from Table 1) in the numerator of the equation and the corresponding
threshold activity limit from the Table 1 in the denominator of the
equation. Sum of the fraction calculations must be performed in metric
values (i.e., TBq) and the numerator and denominator values must be in
the same units.
R1 = activity for radionuclides or source number 1
R2 = activity for radionuclides or source number 2
Rn = activity for radionuclides or source number n
AR1 = activity limit for radionuclides or source number 1
AR2 = activity limit for radionuclides or source number 2
ARn = activity limit for radionuclides or source number n
[GRAPHIC] [TIFF OMITTED] TP31OC06.032
PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS
48. The authority citation for part 76 is revised to read as
follows:
Authority: Secs. 161, 68 Stat. 948, as amended, secs. 1312,
1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-
349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204,
206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846).
Sec 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat.
1321, 1321-349 (42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58,
119 Stat. 549 (2005). Sec. 76.7 also issued under Pub. L. 95-601.
Sec. 10, 92 Stat 2951 (42 U.S.C. 5851). Sec. 76.22 is also issued
under sec. 193(f), as amended, 104 Stat. 2835, as amended by Pub. L.
104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(f)). Sec. 76.35(j)
also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
49. In Sec. 76.113, paragraph (c) is revised to read as follows:
Sec. 76.113 Formula quantities of strategic special nuclear
material--Category I.
* * * * *
(c) The requirements for the protection of Safeguards Information
pertaining to formula quantities of strategic special nuclear material
(Category I) are contained in Sec. Sec. 73.21 and 73.22 and parts 25
and 95 of this chapter. Information designated by the U.S. Department
of Energy (DOE) as Unclassified Controlled Nuclear Information must be
protected in accordance with DOE requirements.
* * * * *
50. In Sec. 76.115, paragraph (d) is added to read as follows:
Sec. 76.115 Special nuclear material of moderate strategic
significance-- Category II.
* * * * *
(d) The requirements for the protection of Safeguards Information
pertaining to special nuclear material of moderate strategic
significance--Category II are contained in Sec. Sec. 73.21 and 73.22
of this chapter.
51. In Sec. 76.117, paragraph (c) is added to read as follows:
Sec. 76.117 Special nuclear material of low strategic significance--
Category III.
* * * * *
(c) The requirements for the protection of Safeguards Information
pertaining to special nuclear material of low strategic significance--
Category III are contained in Sec. Sec. 73.21 and 73.22 of this
chapter.
PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
52. The authority citation for part 150 is revised to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as
[[Page 64068]]
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005).
Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84,
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42
U.S.C. 2073).
Section 150.15 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 150.17a also
issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30
also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).
53. In Sec. 150.15, paragraph (a)(9) is added to read as follows:
Sec. 150.15 Persons not exempt.
(a) * * *
(9) The requirements for the protection Safeguards Information in
Sec. 73.21 and the requirements in Sec. 73.22 or Sec. 73.23 of this
chapter, as applicable.
* * * * *
Dated at Rockville, Maryland this 19th day of October 2006.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 06-8900 Filed 10-30-06; 8:45 am]
BILLING CODE 7590-01-P
