[Federal Register Volume 70, Number 28 (Friday, February 11, 2005)]
[Proposed Rules]
[Pages 7196-7217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2665]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
proposed amendments are consistent with recent Commission practices
reflected in orders and threat advisories, issued since September 11,
2001. The proposed amendments would affect certain licensees,
information, and materials not currently specified in the regulations,
but which are within the scope of Commission authority under the Atomic
Energy Act of 1954, as amended (AEA).
DATES: The comment period expires March 28, 2005. Submit comments
specific to the information collections aspects of this rule March 14,
2005. 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 any identifying or
contact information, the NRC cautions you 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: Rulemakings and Adjudications Staff.
E-mail comments to: [email protected]. 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 [email protected]. 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 O1F21, 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 [email protected].
FOR FURTHER INFORMATION CONTACT: Marjorie Rothschild, Office of the
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-1633, e-mail [email protected] or Bernard
Stapleton, Office of Nuclear Security and Incident Response, Nuclear
Regulatory Commission, Washington, DC 20555-0001, (301) 415-2432, e-
mail BWS[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Need for Rule
III. Purpose of Rulemaking
IV. Request for Specific Comment
V. Discussion of Proposed Amendments by Section
VI. Criminal Penalties
VII. Agreement State Issues
VIII. Plain Language
IX. Voluntary Consensus Standards
X. Finding of No Significant Impact: Environmental Assessment
XI. Paperwork Reduction Act Statement
XII. Regulatory Analysis
XIII. Regulatory Flexibility Analysis
XIV. Backfit Analysis
I. Background
Safeguards Information (SGI) is a special category of sensitive
unclassified information to be protected from unauthorized disclosure
under section 147 of the Atomic Energy Act of 1954, as amended (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 Commission's regulations in Title 10 of
the Code of Federal Regulations 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'' such information and authorization based on an
appropriate background investigation. Power reactors, certain research
and test reactors, and spent fuel storage installations are examples of
the categories of licensees currently within the scope of the
provisions of 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 such 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 147.a.(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
[[Page 7197]]
safety or the common defense and security. The Commission has, by
order, imposed SGI handling requirements on certain categories of these
other licensees. An example is a November 25, 2003 order issued to
certain materials licensees.\1\
---------------------------------------------------------------------------
\1\ This order was published in the Federal Register as ``All
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 (January 23, 2004).
---------------------------------------------------------------------------
Violations of SGI handling and protection requirements, whether
those specified in part 73 or those imposed by order, are subject to
the applicable civil and criminal sanctions. Employees, past or
present, and all 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; and (6) controls for information processing on
electronic systems.
Inadequate protection of SGI, including inadvertent release and
unauthorized disclosure, may result in civil and/or criminal penalties.
The AEA explicitly provides in section 147.a. 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.
II. Need for Rule
Changes in the threat environment have revealed the need to protect
additional types of security information held by a broader group of
licensees as SGI. Under the current regulations, some categories of
licensees are not explicitly included in the categories of licensees
subject to the general performance requirements in 10 CFR 73.21(a).
Similarly, the current regulations do not specify all of the types of
information that 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.
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 have added additional 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
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 explicitly 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 impose a new designation: Safeguards
Information--Modified Handling (SGI-M). SGI-M pertains to certain SGI
subject to handling requirements that are modified from what part 73
itself currently requires. This designation for SGI applies to certain
quantities of source, byproduct, and special nuclear materials for
which the risk of unauthorized disclosure of information is relatively
low. In contrast, more stringent requirements are imposed for the
protection of SGI pertaining to licensees such as power reactors and
certain fuel cycle facilities.
---------------------------------------------------------------------------
\2\ See 69 FR 3397 (January 23, 2004).
---------------------------------------------------------------------------
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 new SGI requirements could continue to be
imposed through the issuance of orders, the regulations would not
reflect current Commission SGI policy and/or requirements. Orders apply
only to the licensees named in the orders, and enforcement orders do
not apply prospectively to applicants for new licenses such as a rule
would. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-
04-6, 59 NRC 62 (2004) (February 18, 2004). Finally, it has been
Commission policy to codify requirements in the regulations and not to
rely on orders indefinitely to impose requirements that should have
generic application.
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.\3\
---------------------------------------------------------------------------
\3\ The NRC staff is in the process of revising the guidance for
designation of SGI and has issued a draft document for comment
(Nuclear Regulatory Commission Draft Guide for the Designation of
Safeguards Information, July 2004).
---------------------------------------------------------------------------
This rulemaking would:
Codify the SGI requirements imposed by the orders;
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);
Expand the types of security information covered by the definition
of SGI in Sec. 73.21 to include access authorization for background
screening, detailed emergency planning scenarios and implementing
procedures, vulnerabilities or weaknesses corrected in a security
system, and some training and qualification information; and
Update Sec. 73.21 to address advanced technology, such as new
types of portable communication devices and copiers using digital
technology.
A graded approach based on the risks and consequences of
information disclosure is being used in determining which category of
licensee or type of information will be subject to certain protection
requirements. This graded approach can be applied to such issues 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 allows certain
licensees, whose quantities and forms of material pose a low risk from
unauthorized information disclosure, to employ the modified-handling
procedures introduced in recent orders for Safeguards Information
designated as SGI-M.
The requirements set forth in this proposed rule are the minimum
restrictions the Commission believes to be necessary in the current
threat environment to protect Safeguards Information against
inadvertent release or unauthorized disclosure which might compromise
the health and safety of the public or the common defense and security.
The proposed rule covers those facilities and materials the Commission
has already determined need to be protected against theft or sabotage.
The
[[Page 7198]]
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
Safeguards Information 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 rule. The rule requirements
satisfy the minimum restrictions provision of section 147.a.(3)(A) of
the AEA. Further, the Commission has determined, pursuant to section
147.a.(3)(B) of the AEA, that the unauthorized disclosure of the
information that is the subject of the 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 facility.
IV. Request for Specific Comment
The NRC is soliciting specific public comment on the following
issue associated with the proposed rulemaking action:
Differing Requirements for Access to SGI and SGI-M--sections
73.22(b)(1) and 73.23(b)(1) contain differing requirements for
performing background checks and making trustworthiness and reliability
determinations for granting personnel access to SGI or SGI-M.
Specifically, under Sec. 73.22(b)(1)(i)(A), an individual to be
authorized access to SGI by a nuclear power reactor applicant or
licensee must demonstrate trustworthiness and reliability and undergo a
Federal Bureau of Investigation criminal history check to the extent
required by Sec. 73.57, which includes fingerprinting. Individuals to
be authorized access to SGI by other applicants or licensees covered by
Sec. 73.22 or by a source, byproduct, or special nuclear material
applicant or licensee pursuant to Sec. 73.23(b)(1)(i) must demonstrate
trustworthiness and reliability through a comprehensive background
check or other means approved by the Commission. These different
requirements are based on the statutory authorization in section 149 of
the AEA for the NRC to require fingerprinting of individuals to be
granted access to SGI by nuclear power reactor applicants or licensees.
There is not a similar statutory authorization to require
fingerprinting by other applicants or licensees.
The NRC specifically invites comment on whether stakeholders would
perceive difficulties in complying with these varying requirements. If
so, the Commission would welcome stakeholder's suggestions, comments,
and/or proposals which would provide a more uniform approach to
background checks and trustworthiness and reliability determinations.
V. Discussion of Proposed Amendments by Section
Conforming changes to 10 CFR part 2, ``Rules of practice for
domestic licensing proceedings and issuance of orders,'' would be made
to the following sections to include citation of 10 CFR 73.22 and
73.23, in addition to citation of current Sec. 73.21, as applicable
appropriate: paragraph (f) of Sec. 2.709, ``Discovery against NRC
staff;'' \4\ paragraph (a)(4)(iii) of Sec. 2.1003, ``Availability of
material;'' and paragraph (b)(6) of Sec. 2.1010, ``Pre-License
application presiding officer.''
---------------------------------------------------------------------------
\4\ In Sec. 2.709(f), which replaces former Sec. 2.744(e), a
few changes in the language and citations in former Sec. 2.744(e),
not relevant here, were made as part of a separate rulemaking
amending 10 CFR part 2. ``Changes to Adjudicatory Process; Final
Rule,'' 69 FR 2182, 2262 (January 14, 2004).
---------------------------------------------------------------------------
Conforming changes are also being proposed to 10 CFR part 30,
``Rules of general applicability to domestic licensing of byproduct
material,'' and 10 CFR part 40, ``Domestic licensing of source
material.'' The proposed changes would add provisions to the sections
of those parts addressing applications for specific licenses and terms
and conditions of licenses. In part 30, Sec. Sec. 30.32, ``Application
for specific licenses'' and 30.34, ``Terms and conditions of
licenses,'' would be amended to include citation of Sec. Sec. 73.21
and 73.23. In part 40, corresponding sections (Sec. Sec. 40.41 and
40.31) would be amended to include citation of Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23, as applicable. With these
additions, it should be clear that part 30 and part 40 licensees and
applicants (subject to 10 CFR part 73), under each part would be
required to protect categories of documents and information in
accordance with the requirements of part 73.
Conforming changes to 10 CFR part 50, ``Domestic licensing of
production and utilization facilities,'' would add to Sec. 50.34,
``Contents of applications; technical information'' and Sec. 50.54,
``Conditions of licenses,'' citations to Sec. 73.22, ``Protection of
Safeguards Information: Specific Requirements'' and Sec. 73.23,
``Protection of Safeguards Information-Modified Handling: Specific
Requirements.'' The purpose of these changes would be to reflect that
specific requirements for protecting SGI relating to such licensees and
materials would be moved from Sec. 73.21 to proposed Sec. 73.22 and
Sec. 73.23, of this chapter, as applicable.
Conforming changes are also being proposed to 10 CFR part 52,
``Early site permits; standard design certifications; and combined
licenses for nuclear power plants.'' Specifically, Sec. 52.47,
``Contents of applications,'' relating to standard design
certifications, would be amended to add as paragraph (c) the
requirement that an applicant for a standard design certification under
part 52 shall protect SGI against unauthorized disclosure in accordance
with the requirements of Sec. Sec. 73.21 and 73.22 of this chapter, as
applicable. A similar conforming change is being proposed for Sec.
52.79, ``Contents of application; technical information,'' relating to
combined licenses for nuclear power facilities.
Part 60, ``Disposal of high-level Radioactive wastes in geologic
repositories,'' would be amended to add in Sec. 60.21, ``Content of
application,'' new paragraph (d). That paragraph would state that the
application for a license for a geologic repository operations area
shall protect as SGI detailed security measures and related
information, 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. A parallel change would be made to a new paragraph (d) to
Sec. 60.42, ``Conditions of license.''
Part 63, ``Disposal of high-level radioactive wastes In a geologic
repository at Yucca Mountain, Nevada,'' would be amended to add new
paragraph (d) to Sec. 63.21, ``Content of application.'' That section
would state that the applicant for a license to receive and possess
source, byproduct, and special nuclear material at a geologic
repository at Yucca Mountain, Nevada shall protect the detailed
security measures for the physical protection of high-level radioactive
waste as SGI in accordance with Sec. Sec. 73.21 and 73.22. A
corresponding change (i.e., adding new paragraph (e)) would be made to
Sec. 63.42, ``Conditions of license.''
Conforming changes are being proposed for 10 CFR part 70,
``Domestic licensing of special nuclear material,'' subpart D--
``License applications.'' Specifically, Sec. 70.22, ``Contents of
applications,'' and Sec. 70.32 ``Conditions of licenses,'' would be
modified to add citation of proposed Sec. 73.23. These modifications
are being proposed to be
[[Page 7199]]
consistent with the addition of proposed Sec. 73.23 containing
specific requirements for Safeguards Information--Modified Handling
related to certain quantities of source and byproduct material and
special nuclear material of moderate or low strategic significance,
except for those materials covered under Sec. 73.22.
Part 71, ``Packaging and transportation of radioactive material,''
would be amended to add new Sec. 71.11, ``Protection of Safeguards
Information'' because licensees, certificate holders, or applicants for
a Certificate of Compliance for transport of radioactive material would
be required to protect Safeguards Information in accordance with the
applicable amended requirements in part 73. The proposed revision does
not address the protection of design-related information with respect
to transportation packages.
Part 72, ``Licensing requirements of the independent storage of
spent nuclear fuel, high-level radioactive waste, and reactor-related
greater than Class C waste,'' would also be amended. A new paragraph
(f) would be added to Sec. 72.22, ``Contents of application; General
and financial information,'' to require that each applicant for a
license under part 72 would be required to protect SGI against
unauthorized disclosure in accordance with Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23, of this chapter, as
applicable. In Sec. 72.44, ``License conditions,'' paragraph (h) would
include a similar requirement for each licensee subject to part 73.
Section 72.212 would be changed to designate paragraph (b)(5)(v) as
paragraph (b)(5)(vi) and a new paragraph (b)(5)(v) would be added to
require that each general licensee that receives, transfers, and
possesses power reactor spent fuel, power reactor-related Greater than
Class C (GTCC) waste, 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. A new paragraph (n) would be added to Sec.
72.236, ``Specific requirements for spent fuel storage cask approval
and fabrication,'' to note that 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.
Section 73.1 Purpose and Scope
Paragraph (b)(7) of this section would be amended to include a
reference to ``Safeguards Information-Modified Handling'' (SGI-M), the
designation for marking of documents containing Safeguards Information
(SGI) to which the Commission has determined modified protection
requirements apply. Orders to certain materials licensees contain this
new SGI-M designation and the handling requirements for such
information.
Section 73.2 Definitions
This section would be amended to add definitions of the terms
Individual Authorized Access to Safeguards Information and Individual
Authorized Access to Safeguards Information-Modified Handling;
Trustworthiness and Reliability, and Safeguards Information-Modified
Handling Requirements. In addition, the definition of the term
Safeguards Information would be modified.
The new terms Individual Authorized Access to Safeguards
Information and Individual Authorized Access to Safeguards Information-
Modified Handling, would be added to distinguish such individuals from
an ``authorized individual,'' which is defined now to apply only to the
control of and access to special nuclear material, without reference to
handling of information or documents.
The new term, Safeguards Information-Modified Handling, would be
added to reflect the new designation for marking of SGI subject to this
regulation. This marking has been previously established through
Commission orders.
The new term, Trustworthiness and Reliability, would be added to
reflect Commission expectations regarding positive character attributes
for access to SGI and SGI-M handling in addition to an individual's
``need to know'' such information. This expectation is embodied
elsewhere in part 73 (Sec. 73.56, ``Personnel access authorization
requirements for nuclear power plants.'') and in 10 CFR 26.10,
``General performance objectives,'' for fitness-for-duty. Specifically,
Sec. 73.56(b) requires, as a performance objective of a licensee's
access authorization program, ``high assurance'' that individuals
granted unescorted access to a nuclear power plant's protected and
vital areas are trustworthy and reliable. Similarly, under Sec.
26.10(a), a licensee's fitness-for-duty program must provide reasonable
assurance that covered personnel will perform their tasks in a
``trustworthy and reliable manner.''
The definition of ``Safeguards Information'' would be changed to
reflect that certain categories of information relating to source and
byproduct material are subject to protection as SGI against
unauthorized disclosure pursuant to section 147 of the AEA. In
addition, this definition would embody the Commission's authority under
section 147 of the AEA to determine, by order or regulation, that the
unauthorized disclosure of other information could reasonably be
expected to have an 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 materials and
facilities. The Commission may from time to time exercise its authority
under section 147.a.\5\ of the AEA to define additional information as
SGI. Thus, the public and other stakeholders would, through orders or
new regulations, be given notice of any additional definitions of SGI.
---------------------------------------------------------------------------
\5\ In the exercise of this authority, the Commission makes
certain determinations and applies the minimum restrictions
necessary to protect SGI, in compliance with section 147 of the AEA.
---------------------------------------------------------------------------
The proposed definition of SGI would also delete the words
``licensee's or applicant's'' [information]. This change is being
proposed to reflect in the regulations the Commission's authority under
section 147 of the AEA to determine that other information involving
the materials described in that provision shall be protected as SGI.
This authority can be exercised if the unauthorized disclosure of that
information could reasonably be expected to have an 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 materials and facilities regulated by the Commission. The
proposed change is also based on the Commission's very broad authority
under section 161.b. of the AEA to regulate the use and possession of
source, byproduct, and special nuclear material in order to promote the
common defense and security or to protect health and minimize danger to
life or property.
Section 73.21 Protection of Safeguards Information: Performance
Requirements
This section would be revised as follows:
Section 73.21(a) General Performance Requirements
The language in paragraph (a) would be simplified and revised to
state at the outset that any person, including a licensee or an
applicant, who produces, receives or acquires SGI shall ensure that it
is protected against unauthorized disclosure. Although this is not a
new requirement under Sec. 73.21(a), the current language and format
of that paragraph does not emphasize this as an
[[Page 7200]]
obligation that extends to any person who produces, receives, or
acquires SGI.
Revised paragraphs Sec. 73.21(a)(1)(i) and (a)(1)(ii) would embody
the general performance requirement in paragraph (a) of current Sec.
73.21 that licensees, applicants, and persons subject to that section
must establish, implement, and maintain an information protection
system that includes specified measures. However, the proposed rule
presents separate requirements for the different categories of
licensees.
Proposed Sec. 73.22 contains the specific requirements for
Safeguards Information related to power reactors, licensees authorized
to possess 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, and fuel cycle facilities required to
implement security measures. Measures for protecting SGI relating to
certain quantities of source and byproduct material, and special
nuclear material of moderate or low strategic significance are
specified in proposed Sec. 73.23.\6\
---------------------------------------------------------------------------
\6\ The quantities are those determined by the Commission
through order or regulation to be significant to the public health
and safety or the common defense and security.
---------------------------------------------------------------------------
Although the measures for the protection of SGI are applicable if
the information is produced, received, or acquired, if licensees do not
have such information then the associated requirements would not apply.
For example, research and test reactors are not required to implement
the power reactor Design Basis Threat (DBT),\7\ and therefore, in all
likelihood would not possess DBT-related information. However, should a
research and test reactor receive or acquire such information, it would
be required to protect the information in accordance with applicable
measures.
---------------------------------------------------------------------------
\7\ The DBTs, as described in 10 CFR 73.1, provide specific
adversary characteristics which power reactor and Category I fuel
cycle facilities need to protect against. The DBTs form the basis
for site-specific defensive strategies as set forth in a site's
physical security plan and contingency plan.
---------------------------------------------------------------------------
Including the references to source, byproduct, and special nuclear
material in these new paragraphs would reflect the full scope of
section 147 of the AEA. That section authorizes the Commission to
protect against the unauthorized disclosure of SGI which specifically
identifies a licensee's or applicant's detailed procedures or security
measures relating to special nuclear material, byproduct material, and
source material, in quantities determined by the Commission through
order or regulation to be significant. This change would lessen the
need for the Commission to issue orders to licensees for the protection
of SGI relating to categories of licensees, information, or materials
not currently within the scope of part 73.
Section 73.21(a)(1)(i) and (a)(1)(ii) would also add the word
``implement'' to the requirement in current Sec. 73.21(a) that
licensees and persons subject to this section must establish and
maintain an information protection system to protect against the
unauthorized disclosure of SGI.
Section 73.21(b) Commission Authority
This is a new paragraph that recognizes the Commission's broad
authority and flexibility under section 147 of the AEA to designate
information as SGI or SGI-M and to impose levels of handling
requirements on any person who produces, receives, or acquires SGI. In
exercising this authority, the Commission is required to make a finding
that the unauthorized disclosure of such 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 the theft, diversion, or
sabotage of a facility or source, byproduct, and special nuclear
material. In addition, the Commission is to impose the minimum
restrictions necessary to protect the health and safety of the public
or the common defense and security.
The remaining paragraphs of Sec. 73.21 will be renumbered into new
Sec. Sec. 73.22 and 73.23, and modified as noted.
Section 73.22 Protection of Safeguards Information: Specific
Requirements
New Sec. 73.22 would be added, containing specific requirements
for Safeguards Information related to power reactors, licensees
authorized to possess 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, and fuel cycle facilities
required to implement security measures.
Section 73.22(a) Information To Be Protected
Current Sec. 73.21(b) ``Information To Be Protected,'' would be
renumbered as Sec. 73.22(a) and be revised to add specificity to the
types of information and documents that must be protected as SGI. Such
information and documents would include the elements and
characteristics of the DBT in a level of detail greater than that
specified in Sec. 73.1, as well as security-related requirements to be
protected against unauthorized disclosure such as protective measures,
interim compensatory measures, and additional security measures. These
changes are necessary to codify in the regulations the recent practices
of the Commission as reflected in orders and threat advisories issued
since September 11, 2001.
Section 73.21(a)(1), ``Physical Protection at Fixed Sites,'' would
be changed to be consistent with the language in section 147.a.(1),
(2), and (3) of the AEA to include information relating to all of the
materials there specified. As revised, paragraph (a)(1) of Sec. 73.21
would not be limited to information concerning the protection of power
reactors authorized to operate and facilities that possess formula
quantities of strategic special nuclear material, as is current Sec.
73.21(b)(1). Section (a)(1)(i) would be revised to delete the word
``nuclear'' to be consistent with the terminology in section 147 of the
AEA. In addition, the words ``All portions of'' would be added at the
beginning of this category to make clear the broader scope of this
category of information intended to be protected as SGI.
Sections 73.22(a)(1)(iii) and 73.22(a)(1)(v) embody changes to
current Sec. 73.21(b)(1)(iii) and current Sec. 73.21(b)(1)(v). The
new Sec. 73.22(a)(ii) would delete the words ``Details of'' at the
beginning of these categories of information to make clear the broader
scope of the information intended to be protected as SGI.
Section 73.22(a)(1)(vi) would be current Sec. 73.21(b)(1)(vi) and
would be amended to include the phrase ``passwords integral to the
physical security system'' because such passwords constitute the type
of information that should be protected as SGI.
Section 73.22(a)(1)(viii), current Sec. 73.21(b)(1)(viii), and
Sec. 73.22(a)(1)(ix), current Sec. 73.21(b)(1)(ix), would be revised
to add at the beginning of each category the words ``All portions of.''
This change would make it clear that the referenced plans in their
entirety and subparts are intended to be designated as SGI. In
addition, current Sec. 73.21(a)(1)(ix) would be changed to recognize
the importance of the licensee's overall facility guard training and
qualification plan as a ``composite'' plan.
New Sec. 73.22(a)(1)(x) would reflect a combination of current
paragraphs Sec. 73.21(b)(1)(x), Sec. 73.21(b)(1)(xi), and
[[Page 7201]]
Sec. 73.21(b)(1)(xii). As revised, this paragraph would specify the
enumerated aspects of response forces.
Proposed Sec. 73.22(a)(1)(xi) would be added to cover information
concerning the size, tactics and capabilities required to defend
against the DBT or information that would disclose elements and
characteristics of the DBT in a greater level of detail than that
specified in Sec. 73.1.
Proposed Sec. 73.22(a)(1)(xii) would be added to specify for
protection as SGI engineering and safety analyses, emergency planning
procedures or scenarios, and other similar information relating to the
physical protection of a facility or materials if the unauthorized
disclosure of such 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 such material or such
facility.
Proposed Sec. 73.22(a)(1)(xiii) is the current Sec.
73.21(b)(1)(xiii).
Section 73.22(a)(2) Physical Protection in Transit
The introductory paragraph in current Sec. 73.21(b)(2) and Sec.
73.21(b)(2)(i), Sec. 73.21(b)(2)(iii) and Sec. 73.21(b)(2)(iv) are
renumbered as new introductory paragraph Sec. 73.22(a)(2), Sec.
73.22(a)(2)(i), Sec. 73.22(a)(2)(iii) and Sec. 73.22(a)(2)(iv). The
introductory paragraph would be changed to reflect the applicability of
Sec. 73.22 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.
Section 73.22(a)(2)(i) would be revised to include the words ``All
portions of'' to make it clear that these plans in their entirety and
subparts are intended to be designated as SGI.
Current Sec. 73.21(b)(2)(ii) would be re-numbered as Sec.
73.22(a)(2)(ii) but would otherwise be unchanged.
Current Sec. 73.21(b)(2)(iii) would be renumbered as Sec.
73.22(a)(2)(iii) and changed to delete the words ``Details of'' to
clarify that the features, devices, and systems in their entirety are a
category of SGI to be protected as such.
Current Sec. 73.21(b)(2)(iv) would be renumbered as Sec.
73.22(a)(2)(iv) and would be otherwise unchanged.
Current Sec. 73.21(b)(2)(v) would be renumbered as Sec.
73.22(a)(2)(v) and would delete the words ``radio-telephone'' so as to
encompass the more modern means of communications. This section would
also delete the words ``Details regarding'' to clarify that all aspects
of communications during transport are included in this category of
information.
Current Sec. 73.21(b)(2)(vi) would be re-numbered as Sec.
73.22(a)(2)(vi) and would add the word ``security'' before the word
``emergencies'.
Section 73.22(a)(2)(vii) is new and its purpose would be to
encompass 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.
Section 73.22(a)(2)(viii) would be added to include as information
to be protected as SGI, engineering or safety analyses and emergency
planning procedures or scenarios relating to the protection of a
facility or material if the unauthorized disclosure of that 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 such facility or material.
Section 73.22(a)(3) is based on current Sec. 73.21(b)(3),
``Inspections, audits and evaluations,'' and would be broadened to
cover specific requirements for Safeguards Information related to power
reactors, licensees authorized to possess 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, and
fuel cycle facilities required to implement security measures. Detailed
information regarding defects, weaknesses or vulnerabilities is
generally not released because identical circumstances may apply to a
licensee or applicant employing similar security measures. In addition,
the types of inspections and reports within the scope of the section
would not be limited to safeguards inspections and reports. This
language would recognize that documents concerning other types of
inspections could contain SGI.
Current Sec. 73.21(b)(4), Correspondence, would be renumbered
Sec. 73.22(a)(4) and would be otherwise unchanged.
Section 73.22(a)(5) would be new and would reflect the authority of
the Commission under Section 147.a. of the AEA to designate as SGI such
other information as the Commission may determine 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 material or a facility (within the scope of
Sec. 73.22). The Commission, may from time to time, exercise its
authority under section 147.a.\8\ of the AEA to define additional
information as SGI and the public and other stakeholders would have
notice as to what these additional definitions of SGI are, through
orders or new regulations, that would specifically define SGI.
---------------------------------------------------------------------------
\8\ In the exercise of this authority, the Commission would make
certain determinations and apply the minimum restrictions necessary
to protect SGI.
---------------------------------------------------------------------------
Section 73.22(b) is based on current Sec. 73.21(c) through (i),
which address access to SGI and specific requirements for protecting it
from unauthorized disclosure. The Commission is proposing to re-
structure part 73 to accommodate the separate handling requirements for
SGI-M, imposed by order or regulation on certain byproduct, source, and
special nuclear materials licensees. Proposed Sec. 73.22 would contain
the specific requirements for Safeguards Information related to power
reactors, licensees authorized to possess 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, and
fuel cycle facilities required to implement security measures.
Corresponding specific requirements for SGI-M relating to certain
quantities of source and byproduct material, and special nuclear
material of low or moderate strategic significance would be set forth
in proposed Sec. 73.23.
Section 73.22(b)(1) would state, as does current Sec. 73.21(c)(1),
the requirement that no person may have access to SGI unless the person
has an established ``need to know'' the information and fits within
described occupational categories (proposed Sec. 73.22(b)(1)(i)
through (vii)). The new Sec. 73.22(b)(1)(i)(A) and (B) add the
requirement that individuals authorized access to SGI by a nuclear
power reactor licensee and non-power reactor licensees and applicants,
demonstrate ``trustworthiness and reliability'' prior to such access.
The Commission has also updated the descriptions in Sec.
73.21(c)(1)(ii) through (vi) of some of the occupational groups and
added a new group, as described below.
The description of the occupational category in Sec.
73.22(b)(1)(i), (Commission, U.S. government, or licensee or applicant
employee, agent, or contractor) would change the language in current
Sec. 73.21(c)(1)(i) from
[[Page 7202]]
``U.S. Government'' to ``Executive Branch'' of the U.S. Government.
This change is necessary because for purposes of access to SGI, members
of Congress are covered separately in the occupational category
specified in proposed Sec. 73.22(b)(1)(i).
Additionally, new Sec. 73.22(b)(1)(i)(A) would require that an
individual authorized access to SGI by a nuclear power reactor facility
applicant or licensee must undergo an FBI criminal history check and
must demonstrate trustworthiness and reliability. Another new
paragraph, Sec. 73.22(b)(1)(i)(B) would be added, mandating that
individuals to be authorized access to SGI by a non-power reactor
facility applicant or licensee must also demonstrate trustworthiness
and reliability. However, this demonstration would be based on a
comprehensive background check or other means approved by the
Commission in lieu of the FBI criminal history check.
Section 73.22(b)(1)(ii) is based on current Sec. 73.21(c)(1)(ii)
but would delete the phrase ``a duly authorized committee of'' [the
Congress]. Under the Commission's current regulations in Sec.
73.21(c)(1)(ii), a member of a ``duly authorized committee of the
Congress'' with a ``need to know'' SGI is given access to such
information. This section of the regulations does not set forth the
meaning of a ``duly authorized committee.'' If narrowly interpreted,
this occupational category might only apply to members of Congress who
serve on NRC oversight committees. The deletion in the proposed rule of
the phrase ``a duly authorized committee'' [of the Congress] would mean
that the authorization would extend to all members of Congress (with a
``need to know'' SGI). This change would be made because many members
of Congress are not on NRC oversight committees, yet they may need
access to SGI because of the presence of nuclear facilities or
materials in their states or districts. As amended, the language would
not alter the Commission's current practices in responding to requests
from members of Congress for access to SGI.
In addition, the authorization in current Sec. 73.21(c)(1)(ii)
does not extend to congressional staff. The Commission is not proposing
to extend the authorization to congressional staff. On a case-by-case
basis, with explicit authorization from the appropriate NRC office, the
NRC staff could share SGI with a Congressional staff member with a
``need to know'' SGI and who otherwise meets the requirements for
access to such information.
Section 73.22(b)(1)(iii) renumbers current Sec. 73.21(c)(1)(iii)
and would be otherwise unchanged.
Section 73.22(b)(1)(iv) is based on current Sec. 73.21(c)(1)(iv)
but the word ``representative'' is being made plural to account for the
fact that more than one representative may be designated under this
occupational category. The plural form is consistent with similar
language in the descriptions of occupational categories in current
Sec. 73.21(c)(1).
Current Sec. 73.21(c)(1)(v) would be re-numbered as paragraph
(b)(1)(v) and the description of this occupational category would be
changed to ``employees'' (which would include the current term
``member'') of a state or local law enforcement authority who are
responsible for responding to requests for assistance during safeguards
or securities emergencies.
Section 73.22(b)(1)(vi) includes as an occupational category, State
Radiation Control Program Directors and Homeland Security Advisors or
their designated representatives. This category corresponds to Sec.
73.23(b)(1)(iii).
Section 73.22(b)(1)(vii) is current Sec. 73.21(c)(1)(vi) and
substitutes the citation of 10 CFR Sec. 2.709(f) for Sec. 2.744(e)
because the latter citation is outdated.
Section 73.22(b)(2) contains a statement contained in a recent
Commission order \9\ that finds that individuals in the occupational
categories described in Sec. 73.22(b)(1)(ii) through Sec.
73.22(b)(1)(vii) \10\ are considered to be trustworthy and reliable by
virtue of their occupational status. For non-governmental individuals
described in Sec. 73.22(b)(1)(i), a determination of trustworthiness
and reliability is required prior to granting access to SGI. Discretion
must be exercised in granting access to these individuals. If there is
any indication that the recipient would be unwilling or unable to
provide proper protection for the SGI, they are not authorized to
receive SGI-M.
---------------------------------------------------------------------------
\9\ e.g., ``All Licensees Authorized to Manufacture or Initially
Transfer Items Containing Radioactive Material for Sale or
Distribution and Possess Certain Radioactive Material of Concern and
All Other Persons Who Obtain Safeguards Information; Order Imposing
Requirements for the Protection of Certain Safeguards Information
(Effective Immediately) (69 FR 3397, 3399; January 23, 2004).
\10\ Individuals (or in some cases, their designated
representatives) in the following occupational groups are included:
State Governors, representatives of the IAEA, employees of state or
local law enforcement, State Radiation Control Program Directors and
State Homeland Security Advisors, and individuals to whom disclosure
is ordered pursuant to 10 CFR 2.709(f). (69 FR 3399; January 23,
2004).
---------------------------------------------------------------------------
Section 73.22(c) Protection While in Use or Storage
Section 73.22(c)(1) contains the identical requirement in current
Sec. 73.21(d), that while in use, matter containing SGI shall be under
the control of an individual authorized access to SGI.
Under certain conditions the general control exercised over
security zones or areas would be considered to meet this requirement.
Some examples of these areas would be: Alarm stations, guard posts and
guard ready rooms; engineering or drafting areas if visitors are
escorted and information is not clearly visible; plant maintenance
areas if access is restricted and information is not clearly visible;
administrative offices (e.g., central records or purchasing) if
visitors are escorted and information is not clearly visible. The
primary consideration is limiting access to those who have a ``need to
know'' and are authorized to have access. Section 73.22(c)(2) would be
revised to limit access to lock combinations.
Section 73.22(d) Preparation and Marking of Documents or Other Matter
Section 73.22(d) would revise current Sec. 73.21(e) to add in the
title ``or other matter,'' to be consistent with the language in the
substantive paragraphs that follow. In addition, a new provision would
be added to require certification that a document or other matter
contains SGI and the certification must set forth the name and title of
the certifying official and the certification date. Also, portion
marking would be required for correspondence to NRC. Such marking would
have to be sufficient to allow the recipient to identify and
distinguish those sections of the document or other matter containing
the protected information from the information that is otherwise
unprotected.
Section 73.22(e) Reproduction of Matter Containing Safeguards
Information
Section 73.21(f) is renumbered to become Sec. 73.22(e) and the
text is revised to include direction for the use of digital copiers and
to delete language regarding destruction of SGI, which has been
relocated to Sec. 73.22(i).
Section 73.22(f) External Transmission of Documents and Material
Section 73.22(f)(1) would amend Sec. 73.21(g)(1) to set forth
detailed requirements for packaging SGI when transmitted outside an
authorized place of use or storage. These prescriptive requirements are
consistent with the current practices of nuclear power
[[Page 7203]]
reactor licensees and the Commission now deems it necessary to require
them to adequately protect SGI or SGI-M when such information is
transmitted externally.
Section 73.22(f)(2) would amend Sec. 73.21(g)(2) to conform to
other changes made by this rulemaking.
Section 73.22(f)(3) would add language to current Sec. 73.21(g)(3)
to permit transmission of SGI by protected telecommunication circuits
(including facsimile) or encryption (Federal Information Processing
Standard). Both of these means of transmission must be approved by the
appropriate NRC office.
Section 73.22(g) Processing of SGI on Electronic Systems
This section updates the title and expands the content of current
Sec. 73.21(h), ``Use of automatic data processing (ADP) systems,'' to
refer to the processing of SGI on electronic systems and to add
specific requirements applicable to the computer processing of SGI.
Section 73.22(h) Removal From Safeguards Information Category
Section 73.22(h) revises current Sec. 73.21(i) to add further
restrictions on decontrolling SGI. One proposed change concerns the
degree of care that must be exercised in removing information from the
SGI category. The other new requirement would specify that the
authority to determine that a document may be decontrolled shall be
exercised only by the NRC or with NRC approval, or in consultation with
the individual or organization that made the original determination, if
possible. Removal from the SGI-M category is addressed in Sec.
73.23(h).
Section 73.22(i) Destruction of Matter Containing SGI
Section 73.22(i) contains revised language from current Sec.
73.21(f) to be consistent with the policies set forth in the orders
regarding the destruction of documents.
New Section 73.23 Protection of Safeguards Information-Modified
Handling: Specific Requirements.
This is a new section which would set forth the specific
requirements for Safeguards Information--Modified Handling related to
certain quantities of source and byproduct material and special nuclear
material of moderate or low strategic significance, except for those
materials covered under section 73.22. The term ``SGI-M'' would be used
as the distinguishing marking for SGI relating to certain source,
byproduct, and special nuclear material licensees. Section 73.23 is
based on the Commission's orders and threat advisories issued to
certain byproduct materials licensees.
Section 73.23(a) Information To Be Protected
Section 73.23(a) sets forth the information to be protected in
accordance with the handling requirements specified in Sec. 73.23(c)
through (i). In general terms, information deemed SGI-M is information
the 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 theft, diversion, or sabotage of materials or facilities
subject to NRC jurisdiction. SGI-M is the designation and marking for
SGI which is subject to these requirements. The overall measure for
consideration of SGI-M is the usefulness of the information (security
or otherwise) to an adversary in planning or attempting a malevolent
act; the more specific the information, the more likely that it will be
useful to an adversary.
Section 73.23(a) states that the specific types of information and
documents to be protected as SGI-M include security-related
requirements that must be protected from unauthorized disclosure such
as protective measures, interim compensatory measures, and additional
safety features. Sections 73.23(a)(1) through (a)(4) enumerate and
describe the specific categories of SGI-M to be protected. These
categories of information are based on those proposed in Sec.
73.22(a)(1) through (a)(5), as applicable, which in turn update the
types of information specified in current Sec. 73.21(b)(1) through
(b)(4). In reference to proposed Sec. 73.23(a)(3)(i), regarding
portions of certain inspection reports, evaluations, audits, or
investigations, detailed information regarding defects, weaknesses or
vulnerabilities is generally not released because identical
circumstances may apply to licensees or applicants employing similar
security measures. Section 73.23(a)(4) references correspondence as it
pertains to this section.
Section 73.23(a)(5) would be new and would reflect the authority of
the Commission under section 147a of the AEA to designate as SGI such
other information as the Commission may determine 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 material or a facility (within the scope of
Sec. 73.22). The Commission, may from time to time, exercise its
authority under section 147.a.\11\ of the AEA to define additional
information as SGI and the public and other stakeholders would have
notice as to what these additional definitions of SGI are, through
orders or new regulations, that would specifically define SGI.
---------------------------------------------------------------------------
\11\ In the exercise of this authority, the Commission would
make certain determinations and apply the minimum restrictions
necessary to protect SGI.
---------------------------------------------------------------------------
Section 73.23(b)(1) addresses conditions for access to SGI-M.
Authorization for access to SGI-M by licensee employees, agents, or
contractors must be based on both an appropriate ``need to know''
determination by the licensee, as well as a determination concerning
the trustworthiness and reliability of individuals having access to the
information. Employees of an organization associated with the
licensee's company, for example, a parent company, may be considered as
employees of the licensee for access purposes. A recipient of SGI-M
should be made aware that the information is SGI-M and those having
access to it are subject to the requirements for its protection as well
as civil and criminal sanctions for mishandling the information.
Section 73.23(b)(1)(ii) through (vi) describes occupational groups
who are deemed to be trustworthy and reliable by virtue of their
employment status. For non-governmental individuals in Sec.
73.23(b)(1)(i) and (vii), a determination of trustworthiness and
reliability is required. Discretion must be exercised in granting
access to these individuals. If there is any indication that the
recipient would be unwilling or unable to provide proper protection of
the SGI-M, they are not authorized to receive SGI-M.
Section 73.23(b)(1)(ii) is identical to the current Sec.
73.21(c)(1)(ii), except the phrase ``a duly authorized committee of''
[the Congress] would be deleted. Under the Commission's current
regulations in Sec. 73.21(c)(1)(ii), a member of a ``duly authorized
committee of the Congress'' with a ``need to know'' SGI is given access
to such information. This section of the regulations does not set forth
the meaning of a ``duly authorized committee.'' The deletion in the
proposed rule of the phrase ``a duly authorized committee'' [of the
Congress] would mean that the authorization would extend to all members
of Congress (with a ``need to know'' SGI-
[[Page 7204]]
M). This change would be made because many members of Congress are not
on NRC oversight committees, yet may need access to SGI-M because
nuclear facilities or materials are located in their states or
districts. As amended, the language would not alter the Commission's
current practices in responding to requests from members of Congress
for access to SGI.
In addition, the authorization in current Sec. 73.21(c)(1)(ii)
does not extend to Congressional staff. The Commission is not proposing
to extend the authorization to Congressional staff. On a case-by-case
basis, with explicit authorization from the appropriate NRC office, the
NRC staff could share SGI-M with a Congressional staff member with a
``need to know'' SGI and who otherwise meets the requirements for
access to such information.
Section 73.23(b)(1)(iii) corresponds to Sec. 73.22(b)(1)(iii),
which includes the Governor of a state or designated representatives as
an occupational category presumed to be trustworthy and reliable for
access to SGI.
Section 73.23(b)(1)(iv) is based on Sec. 73.21(c)(1)(iv) and the
only change is to make ``representative'' plural because that would be
consistent with language for other occupational categories in which the
plural form is used.
Section 73.23(b)(1)(v) corresponds to proposed Sec.
73.22(b)(1)(v), in which the description of this occupational category
would be changed to ``employees'' (which would include the current term
``member'') of a state or local law enforcement authority who are
responsible for responding to requests for assistance during safeguards
or securities emergencies.
Section 73.23(b)(1)(vi) is the same occupational category of
individuals in Sec. 73.22(b)(1)(vi). Because homeland security
advisors is the correct title of the individuals to be included in this
occupational category, that title is contained in proposed rule text.
Section 73.23(b)(1)(vii) corresponds to proposed Sec.
73.22(c)(1)(vi), which is based on current Sec. 73.21(c)(1)(vi). As
proposed, this paragraph substitutes the citation of 10 CFR 2.709(f)
for Sec. 2.744(e) because the latter citation is outdated.
The subject of Sec. 73.23(c) is protection of SGI-M while in use
or storage. While in use, SGI-M shall be under the control of an
individual authorized access to Safeguards Information Modified
Handling. This requirement is satisfied if the SGI-M is attended by an
authorized individual in certain locations even though the information
is in fact not constantly being used. Examples of such locations
include: Engineering or drafting areas, plant maintenance areas, or
administrative offices (e.g., central records or purchasing) if
visitors are escorted and information is not clearly visible in these
areas. Under certain conditions, the general control exercised over
occupied security zones or areas would be considered to meet this
requirement. SGI-M, therefore, within alarm stations or within
continuously manned guard posts or ready rooms need not be locked in
file drawers or storage containers. The primary consideration is
limiting access to those who have a ``need to know'' and are otherwise
authorized to have access.
Section 73.23(d) sets forth requirements for the preparation and
marking of documents designated as SGI-M. Although the NRC defines what
specific byproduct material information constitutes SGI-M, originators
of documents are responsible for designating those documents that
contain such information. All documents containing SGI-M in use or
storage shall be marked in accordance with the requirements of Sec.
73.23(d). As stated in current Sec. 73.21(a) and by order,\12\ since
information protection procedures employed by State and local police
forces are deemed to meet NRC requirements, documents in the possession
of these agencies need not be marked as set forth in this paragraph.
---------------------------------------------------------------------------
\12\ See, for example, the Order cited earlier as published in
the Federal Register on January 23, 2004 (69 FR 3398).
---------------------------------------------------------------------------
Section 73.23(e) contains requirements governing the reproduction
of matter containing SGI-M. Newer digital copiers which scan and retain
images of documents represent a security concern. If the copier is
retaining SGI-M information in memory, the copier cannot be connected
to a network. It should be placed in a location that is cleared and
controlled for the authorized processing of SGI-M information.
Different copiers have different capabilities, including some which
come with features that allow the memory to be erased. Each copier
would have to be examined from a physical security perspective.
Section 73.23(f) concerns the external transmission of documents
and material. Paragraph (f)(1) addresses the transmittal of Safeguards
Information outside an authorized place of use and storage, requiring
two sealed envelopes or wrappers and marking of the envelopes or
wrappers. Within a facility, SGI-M may be transmitted using a single
opaque envelope. It may also be transmitted within a facility without
single or double wrapping, provided adequate measures are taken to
protect the material against unauthorized disclosure. Individuals
transporting SGI-M should retain the documents in their personal
possession at all times or ensure that the information is appropriately
wrapped and also secured to preclude compromise by an unauthorized
individual. SGI-M may be transported by any commercial delivery company
that provides nationwide overnight service with computer tracking
features, U.S. first class, registered, express, or certified mail, or
by any individual authorized access pursuant to the requirements in
Sec. 73.23(b).
Section 73.23(g) describes the requirements for processing SGI-M on
electronic systems. The basic objective of the restrictions is to
prevent access and retrieval of stored SGI-M by unauthorized
individuals, particularly from remote terminals. Specific files
containing SGI-M will be password protected to preclude access by an
unauthorized individual.
Removal from the SGI-M category is addressed in Sec. 73.23(h),
which contains requirements which are identical to those in Sec.
73.22(h) for the removal from the SGI category. Thus, these
requirements would specify when information is to be removed from the
SGI-M category, the degree of care to be exercised in decontrolling a
document, and the authority to determine that a document may be
decontrolled.
Section 73.23(i) contains detailed requirements for destruction of
matter containing SGI-M. These requirements cover methods to destroy
documents containing SGI-M and set forth characteristics of a document
which would be considered completely destroyed.
Section 73.57 contains requirements for criminal history checks of
individuals granted unescorted access to a nuclear power facility or
access to Safeguards Information by power reactor licensees.
Section 73.57(b)(2)(i) has been revised to include reference to
Sec. 73.22.
The language in Sec. 73.57(b)(2)(ii), containing an exception to
the fingerprinting requirement for the occupational categories of
members of Congress and Governors of States, would be revised to be
consistent with the proposed language in Sec. 73.22(b)(1)(ii) and
(iii) describing these same occupational categories.
Section 76.113 Formula Quantities of Strategic Special Nuclear
Material--Category 1
The language of paragraph (c) would be changed to include a
citation to new
[[Page 7205]]
Sec. 73.22, Protection of Safeguards Information: Specific
Requirements.
Section 76.115 Special Nuclear Material of Moderate Strategic
Significance--Category II
The language of this section would be changed to add a new
paragraph (d) to state that 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.
Section 76.117 Special Nuclear Material of Low Strategic Significance--
Category III
The language of this section would be changed to add a new
paragraph (c) to state that 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.
Section 150.15 Persons Not Exempt
A change is also being proposed to part 150, ``Exemptions and
Continued Regulatory Authority in Agreement States and In Offshore
Waters Under Section 274.'' Paragraph (a)(9) would be added to Sec.
150.15, ``Persons not exempt,'' to include the protection of SGI in the
list of activities by persons in Agreement States that are not exempt
from the Commission's licensing and regulatory requirements.
VI. 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 rule would be
subject to criminal enforcement.
VII. Agreement State Issues
The proposed changes to parts 2, 30, 40, 50, 52, 60, 63, 70, 71,
72, 73, 76, and 150 are considered to be Category NRC compatibility and
therefore are areas of exclusive NRC authority. However, the proposed
rule has been provided to the Agreement States for their review and
comment prior to publication of draft rule text on the NRC Web site and
the publication of the proposed rule in the Federal Register. The
Agreement States of Illinois and Washington commented on the proposed
rule. 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.
VIII. Plain Language
The Presidential Memorandum dated June 1, 1998, entitled ``Plain
Language in Government Writing,'' directed that the Government's
writing be in plain language. This memorandum was published June 10,
1998 (63 FR 31883). The NRC requests comments on this proposed rule
specifically with respect to the clarity and effectiveness of the
language used. Comments should be sent to the address listed under the
heading ADDRESSES above.
IX. 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 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.
X. 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 rule, if adopted, would not be 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 proposed rule
relates to the designation, handling and protection of Safeguards
Information 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 will be no
significant environmental impacts from this action. However, the
general public should note that the NRC is seeking public
participation. Comments on any aspect of the environmental assessment
may be submitted to the NRC as indicated under the ADDRESSES heading.
The NRC has sent a copy of the environmental assessment and
proposed rule to every State Liaison Officer and requested comments on
the environmental assessment.
XI. 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 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 73, ``Protection of
Safeguards Information.''
The Form Number if Applicable: Not applicable.
How often the collection is required: Licensees must mark and
protect from unauthorized disclosure documents containing Safeguards
Information or Safeguards Information designated for modified handling,
on a continuous basis.
Who Will be Required or Asked to Report: Power reactor licensees
and applicants, research and test reactor licensees and applicants,
certificate holders and applicants, fuel cycle facility licensees and
applicants, and certain other byproduct, source, and special nuclear
material licensees and applicants.
An Estimate of the Number of Annual Responses: None.
The Estimated Number of Annual Respondents: 646 recordkeepers.
An Estimate of the Total Number of Hours Needed Annually to
Complete the Requirement or Request: 5,926 (an average of 9 hours per
recordkeeper).
Abstract: The NRC is amending its regulations for the protection of
Safeguards Information to protect it from inadvertent release and
unauthorized disclosure which might compromise the security of nuclear
facilities and materials. The proposed amendments would be consistent
with Commission practices reflected in previously issued Orders and
advisories. The proposed amendments would affect certain licensees,
information, and materials not currently
[[Page 7206]]
specified in the regulations but which are within the scope of the
Commission's statutory authority.
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 March 14, 2005 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
[email protected] 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.--A[email protected] 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.
XII. Regulatory Analysis
The Commission has prepared a draft regulatory analysis on this
proposed regulation. The analysis examines the costs and benefits of
the alternatives considered by the Commission. The regulatory analysis
is available for inspection in the NRC Public Document Room, 11555
Rockville Pike, Rockville, MD 20852. Single copies of the 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 [email protected]. The
Commission requests public comment on the draft regulatory analysis.
Comments on the draft analysis may be submitted to the NRC as indicated
under the ADDRESSES heading.
XIII. Regulatory Flexibility Analysis
The NRC is seeking public comment on the potential impact of the
proposed rule on small entities. The NRC particularly desires comment
from small entities (i.e., small businesses, small organizations, and
small jurisdictions under the Regulatory Flexibility Act) as to how the
proposed regulations will affect them and how the regulations may be
tiered or otherwise modified to impose less stringent requirements on
small entities while still adequately protecting the public health and
safety or the common defense and security. Those small entities that
offer comments on how the proposed regulations could be modified to
take into account the differing needs of small entities should
specifically discuss--
(a) The licensee's size and how the proposed regulations would
result in a significant economic burden upon the licensee as compared
to a larger licensee;
(b) How the proposed regulations could be modified to take into
account the licensee's differing needs or capabilities;
(c) The benefits that would accrue, or the detriments that would be
avoided, if the proposed regulations were modified as suggested by the
licensee;
(d) How the proposed regulations, as modified, would more closely
equalize the impact of NRC regulations or create more equal access to
the benefits of Federal programs as opposed to providing some special
advantages to any particular individual or group;
(e) How the proposed regulation, as modified, would still
adequately protect public health and safety or the common defense and
security.
Send comments to the NRC as indicated under the ADDRESSES heading.
The Commission is preparing an initial regulatory analysis of the
impact of this proposed rule on small entities. The NRC requests
written comments on the analysis. Send comments to the NRC as indicated
under the ADDRESSES heading.
XIV. Backfit Analysis
The Commission has concluded, on the basis of the documented
evaluation in the draft regulatory analysis, that the majority of the
requirements in the proposed rule are not 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
constitute backfits are necessary to insure that the facilities and
materials described in the proposed 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 draft
Regulatory Analysis includes a statement of the objectives of and the
reasons for the backfits that would be required by the 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,
[[Page 7207]]
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 recordkeeping 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 continues to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); 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). 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 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. Paragraph (f) of Sec. 2.709 is amended to read as follows:
Sec. 2.709 Discovery against NRC staff.
* * * * *
(f) 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, but whose disclosure is found by the presiding officer to be
necessary to a proper decision in the proceeding, any order 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) may
contain 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. When Safeguards Information protected
from disclosure under section 147 of the Atomic Energy Act, as amended,
is received and possessed by a party other than the Commission 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. 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. 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. 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 161.b. of the Atomic Energy Act.
* * * * *
[[Page 7208]]
3. 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.
* * * * *
4. 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 participants, interested governmental
participants and parties in the proceeding, or to their qualified
witnesses and counsel. 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
governmental participant, or party, other than the Commission staff, it
shall also be protected according to the requirements of Sec. 73.21
and the requirements in Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable. 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. 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. 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.
* * * * *
PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL
5. The authority citation for part 30 continues 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).
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).
6. 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 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 who prepares a physical security plan, security procedures
for emergencies, or guard qualification and training procedures, shall
protect the plans, procedures, and other related Safeguards Information
against unauthorized disclosure in accordance with the requirements in
Sec. Sec. 73.21 and 73.23 of this chapter, as applicable.
7. 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 physical security plans, security procedures
for emergencies, guard qualification and training procedures and other
related Safeguards Information are 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
8. The authority citation for part 40 continues 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). 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).
9. 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 source 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 who prepares a physical security plan, security procedures for
emergencies, or guard qualification and training procedures, shall
protect the plans, procedures, and other related 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.
10. 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 physical security plans, security procedures
for emergencies, guard qualification and training procedures and other
related Safeguards Information are 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
11. The authority citation for part 50 continues 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). 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
[[Page 7209]]
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).
12. 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, who prepares a physical security plan, a
safeguards contingency plan, or a guard qualification and training
plan, shall protect the plans and other related 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.
* * * * *
13. 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 physical security, safeguards contingency and
guard qualification and training plans and other related Safeguards
Information are 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
14. The authority citation for part 52 continues 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). 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).
15. 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.
16. 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
17. The authority citation for part 60 continues 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).
18. 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 as Safeguards
Information in accordance with Sec. 73.21 and the requirements of
Sec. 73.22 or Sec. 73.23 of this chapter, as applicable, the detailed
security measures for physical protection 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.
19. In Sec. 60.42, paragraph (d) is added to read as follows:
Sec. 60.42 Conditions of license.
* * * * *
(d) The licensee shall ensure that the detailed security measures
for physical protection 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 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 63--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC
REPOSITORY AT YUCCA MOUNTAIN, NEVADA
20. The authority citation for part 63 continues 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).
21. 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 as Safeguards Information in
accordance with Sec. Sec. 73.21 and 73.22 of this chapter, the
detailed 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 Safeguards
Information.
22. In Sec. 63.42, paragraph (e) is added to read as follows:
[[Page 7210]]
Sec. 63.42 Conditions of license.
* * * * *
(e) The licensee shall ensure that the detailed 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 Safeguards Information is protected against unauthorized
disclosure in accordance with the requirements in Sec. Sec. 73.21 and
73.22 of this chapter, as applicable.
PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
23. The authority citation for part 70 continues 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). 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).
24. In Sec. 70.22, paragraph (l) is revised and paragraph (o) is
added to read as follows:
Sec. 70.22 Contents of applications.
* * * * *
(l) Each applicant for a license to possess, use, transport, or
deliver to a carrier for transport formula quantities of strategic
special nuclear material, or more than 100 grams of irradiated reactor
fuel, who prepares a physical security, safeguards contingency, or
guard qualification and training plan shall protect these plans and
other related 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.
* * * * *
(o) Each applicant for a license to possess, use, transport or
deliver to a carrier for transport special nuclear material of low or
moderate strategic significance, who prepares a physical security plan,
safeguards contingency plan, or guard qualification and training plan
shall protect these plans and other related security Information
against unauthorized disclosure in accordance with the requirements in
Sec. Sec. 73.21 and 73.23 of this chapter.
25. In Sec. 70.32, paragraph (j) is revised and paragraph (I) is
added to read as follows:
Sec. 70.32 Conditions of licenses.
* * * * *
(j) Each licensee who possesses a formula quantity of strategic
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 physical
security, safeguards contingency, and guard qualification and training
plans and other related Safeguards Information are 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.
* * * * *
(l) Each licensee who possesses, uses, transports, or delivers to a
carrier for transport special nuclear material of moderate or low
strategic significance and who prepares a physical security plan shall
protect the plan and other related Safeguards Information against
unauthorized disclosure in accordance with the requirements in
Sec. Sec. 73.21 and 73.23 of this chapter.
PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL
26. The authority citation for part 71 continues 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). Section 71.97 also issued under
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.
27. Sec. 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 spent fuel,
strategic special nuclear material, 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
28. The authority citation for Part 72 continues 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). 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).
29. 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
[[Page 7211]]
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements of Sec. 73.22 or Sec. 73.23, as
applicable.
30. 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.
31. In Sec. 72.212, paragraph (b)(5)(v) is re-designated 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, transfers, and possesses
power reactor spent fuel, power reactor-related Greater than Class C
(GTCC) waste, 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.
* * * * *
32. 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
33. The authority citation for part 73 continues to read as
follows:
Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 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). 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).
34. 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.
* * * * *
35. In Sec. 73.2, new definitions Individual Authorized Access to
Safeguards Information, Individual Authorized Access to Safeguards
Information--Modified Handling, Safeguards Information--Modified
Handling Requirements and Trustworthiness and reliability, are added in
alphabetical order and the definition of Safeguards Information is
revised to read as follows:
Sec. 73.2 Definitions.
* * * * *
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 of this
chapter.
Individual Authorized Access to Safeguards Information--Modified
Handling Requirements 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.
* * * * *
Safeguards Information means information not otherwise classified
as National Security Information or Restricted Data which specifically
identifies detailed control and accounting procedures for 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 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 radiological
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 those for other
Safeguards Information.
* * * * *
Trustworthiness and reliability means positive attributes as an
indication of an individual's background and character demonstrating a
high level of confidence that the individual can be properly authorized
to have access to and handle Safeguards Information and Safeguards
Information--Modified Handling.
* * * * *
36. 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) For Safeguards Information related to power reactors, licensees
authorized to possess 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, and fuel cycle facilities
required to implement security measures, establish, implement and
maintain an information protection system that includes the applicable
measures specified in Sec. 73.22.
(ii) For Safeguards Information related to certain quantities of
source and byproduct material and special nuclear material of moderate
or low strategic significance, establish, implement, and maintain an
information protection system that includes the measures specified in
Sec. 73.23.
(2) Information protection procedures employed by State and local
police forces are deemed to meet the general performance requirement in
Sec. 73.21(a)(i).
(b) Commission Authority. Pursuant to section 147 of the Atomic
Energy Act of 1954, as amended, (42 U.S.C. 2167), the Commission may
impose, by order
[[Page 7212]]
or regulation, Safeguards Information handling requirements different
from those specified in Sec. 73.21(a)(1) and (2) on any person who
produces, receives, or acquires Safeguards Information.
37. 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, licensees authorized
to possess 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, and fuel cycle facilities.
(a) Information to be protected. The types of information and
documents that must be protected as Safeguards Information include
security-related requirements such as protective measures, interim
compensatory measures, additional security measures, and the following,
as applicable:
(1) Physical Protection at fixed sites. Information not otherwise
classified as Restricted Data or National Security Information relating
to the protection of power reactors, transportation of or delivery to a
carrier for transportation of a formula quantity of strategic special
nuclear material, spent irradiated fuel in excess of 100 grams, and
licensees authorized to possess a formula quantity of strategic nuclear
material, including:
(i) All portions of 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.
(iii) Alarm system layouts showing the location of intrusion
detection devices, alarm assessment equipment, alarm system wiring,
emergency power sources, and duress alarms.
(iv) Written physical security orders and procedures for members of
the security organization, duress codes, and patrol schedules.
(v) On-site and off-site communications systems in regard to their
use for security purposes.
(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 physical
security plans, safeguards contingency plans, or plant specific
safeguards analyses.
(viii) All portions of the composite safeguards contingency plan
for the facility or site.
(ix) All portions of the composite facility guard qualification and
training plan disclosing features of the physical security system or
response procedures.
(x) Information concerning onsite or offsite response forces,
including size, identity, armament, and arrival times of such forces
committed to respond to safeguards or security emergencies.
(xi) The elements and characteristics of the Design Basis Threat in
a level of detail greater than as specified in Sec. 73.1 or other
information that would disclose the Design Basis Threat, including the
tactics and capabilities required to defend against that threat.
(xii) Engineering and safety analyses, emergency planning
procedures or scenarios, and other information related to the physical
protection of the facility or materials if the unauthorized disclosure
of such 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 material or a facility.
(xiii) Information required by the Commission pursuant to 10 CFR
73.55(c)(8) and (9).
(2) Physical protection in transit. Information not otherwise
classified as Restricted Data or National Security Information related
to the protection of 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) All portions of the composite transportation physical security
plan.
(ii) Schedules and itineraries for specific shipments. (Routes and
quantities for shipments of spent fuel are not withheld from public
disclosure. Schedules for spent fuel shipments may be released 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 safeguards or security emergencies.
(vii) 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.
(viii) Engineering or safety analyses, emergency planning
procedures or scenarios related to the protection of the transported
material if the unauthorized disclosure of such 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 such material.
(3) Inspections, audits and evaluations. Information not otherwise
classified as National Security Information or Restricted Data
pertaining to inspections and reports that could affect the specific
requirements for Safeguards Information related to power reactors,
licensees authorized to possess 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, and fuel
cycle facilities required to implement security measures 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.
(ii) Reports of investigations containing general information may
be released after the investigation has 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 defined in paragraphs (a)(1) through
(a)(3) of this paragraph.
(5) Other information 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 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 is:
(i) An employee, agent, or contractor of an applicant, a licensee,
the Commission, or the Executive Branch of the United States
Government. However,
[[Page 7213]]
(A) An individual to be authorized access to Safeguards Information
by a nuclear power reactor applicant or licensee must demonstrate
trustworthiness and reliability and undergo a Federal Bureau of
Investigation criminal history check to the extent required by 10 CFR
73.57 prior to such access;
(B) Other individuals to be authorized access to Safeguards
Information by an applicant or licensee covered by this section must
demonstrate trustworthiness and reliability through a comprehensive
background check or other means as approved by the Commission prior to
such access;
(ii) A member of Congress;
(iii) The Governor of a State or designated representatives;
(iv) Representatives of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who has been certified by the NRC;
(v) Employees of a state or local law enforcement authority that
are responsible for responding to requests for assistance during
safeguards or security emergencies;
(vi) State Radiation Control Program Directors and State Homeland
Security Advisors or their designated representatives; or
(vii) An individual to whom disclosure is ordered pursuant to Sec.
2.709(f) of this chapter.
(2) The individuals described in (b)(1)(ii) through (vi) of this
section are deemed to be trustworthy and reliable by virtue of their
occupational status. For non-governmental individuals in (b)(1)(i) and
(vii) of this section, a determination of trustworthiness and
reliability is required.
(3) Except as the Commission may otherwise authorize, no person may
disclose Safeguards Information to any other person except as set forth
in paragraph (b)(1) of 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,
continuously manned guard posts or ready rooms need not be locked in a
locked security storage container.
(2) While unattended, Safeguards Information must be stored in a
locked security storage container. The container may 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 unauthorized 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
``Safeguards Information'' in a conspicuous manner on the top and
bottom of each page to indicate the presence of protected information.
The first page of each 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 would be subject
to civil and criminal sanctions.
(2) In addition to the ``Safeguards Information'' markings at the
top and bottom of each page, transmittal letters or memoranda 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 (e.g., ``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 of documents or other information
is required for correspondence to and from the NRC. The portion marking
must be sufficient to allow the recipient to identify and distinguish
those sections of the document or other information containing the
Safeguards Information from non-Safeguards Information.
(4) Documents and other matter containing Safeguards Information in
the hands of contractors and agents of licensees that were produced
more than one year prior to the effective date of this amendment need
not be marked unless they are removed from storage containers for use.
(5) The marking ``SGI'' must be used for Safeguards Information
designated as such for the protection of facilities and material
covered by 10 CFR 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. If
Safeguards Information is reproduced on a digital copier that would
retain Safeguards Information in its memory, then the copier may not be
connected to a network.
(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 nationwide overnight 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 must be transmitted electronically only by protected
telecommunications circuits (including facsimile) or encryption
(Federal Information Processing Standard [FIPS] 140-2) 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 safeguards or security event or an event that has
potential security significance. Physical security events required to
be reported pursuant to Sec. 73.71 are
[[Page 7214]]
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 computer system may 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 automated 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 whenever the information no longer
meets the criteria contained in this part. 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 in consultation with the individual
or organization that made the original determination, if possible.
(i) Destruction of matter containing Safeguards Information.
Documents or other media containing Safeguards Information must be
destroyed when no longer needed. The information can be destroyed by
tearing into small pieces, burning, shredding or any other method that
precludes reconstruction by means available to the public at large.
Piece sizes one half inch or smaller composed of several pages or
documents and thoroughly mixed would be considered completely
destroyed.
38. 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 certain quantities of source and
byproduct material and special nuclear material of moderate or low
strategic significance, except for those materials covered under Sec.
73.22. The requirements of this section distinguish Safeguards
Information requiring modified protection 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 include
security-related requirements such as protective measures, interim
compensatory measures, additional security measures, and the following,
as applicable:
(1) Physical Protection at fixed sites. Information not otherwise
classified as Restricted Data or National Security Information relating
to source material, byproduct material, special nuclear material of
moderate strategic significance, or special nuclear material of low
strategic significance, 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, including:
(i) All portions of 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.
(iii) Alarm system layouts showing location of intrusion detection
devices, alarm assessment equipment, alarm system wiring, emergency
power sources, and duress alarms.
(iv) Written physical security orders and procedures for members of
the security organization, duress codes, and patrol schedules.
(v) On-site and off-site communications systems in regard to their
use for security purposes.
(vi) Lock combinations, mechanical key design, or passwords
integral to the physical security system.
(vii) Facility guard qualification and training procedures
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 concerning offsite response forces, including
size, identity, armament, and arrival times of such forces committed to
respond to safeguards or security emergencies.
(x) Engineering and safety analyses, emergency planning procedures
or scenarios, and other information related to the physical protection
of the facility or materials if the unauthorized disclosure of such
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 material or a facility.
(2) Physical protection in transit. Information not otherwise
classified as Restricted Data or National Security Information related
to the protection of shipments of certain quantities of source material
and byproduct material and special nuclear material of moderate or low
strategic significance, except for those materials covered under Sec.
73.22, and 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, including:
(i) Information regarding security features of a transportation
physical security plan (Scheduling and itinerary information may be
shared with others on a ``need to know'' basis and is not designated as
Safeguards Information-Modified Handling).
(ii) Arrangements with and capabilities of local police response
forces, and locations of safe havens.
(iii) Limitations of communications during transport.
(iv) Procedures for response to safeguards or security emergencies.
(v) Engineering or safety analyses, emergency planning procedures
or scenarios related to the protection of the transported material if
the unauthorized disclosure of such 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 such
material.
(3) Inspections, audits and evaluations. Information not otherwise
classified as National Security Information or Restricted Data relating
to inspections and reports, such as:
[[Page 7215]]
(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.
(ii) Reports of investigations containing general information may
be released after the investigation has 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, including the information in paragraphs
(a)(1) through (a)(3) of this section.
(5) Other information 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 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 is:
(i) An employee, agent, or contractor of an applicant, a licensee,
the Commission, or the Executive Branch of the United States
Government. Individuals authorized access to Safeguards Information by
a source, byproduct, or special nuclear material applicant or licensee
must demonstrate trustworthiness and reliability through a
comprehensive background check or other means as approved by the
Commission prior to such access;
(ii) A member of Congress;
(iii) The Governor of a State or designated representatives;
(iv) Representatives of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who has been certified by the NRC;
(v) Employees of a state or local law enforcement authority that
are responsible for responding to requests for assistance during
safeguards or security emergencies;
(vi) State Radiation Control Program Directors and State Homeland
Security Advisors or their designated representatives; or
(vii) An individual to whom disclosure is ordered pursuant to Sec.
2.709(f) of this chapter.
(2) The individuals described in paragraph (b)(1)(ii) through (vi)
of this section are deemed to be trustworthy and reliable by virtue of
their occupational status. For non-governmental individuals in
(b)(1)(i) and (vii) of this section, a determination of trustworthiness
and reliability is required.
(3) Except as the Commission may otherwise authorize, no person may
disclose Safeguards Information to any other person except as set forth
in paragraph (b)(1) of 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 such 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, continuously manned
guard posts or ready rooms need not be locked in a file drawer or
cabinet.
(2) While unattended, Safeguards Information must be stored in a
locked file drawer or cabinet. The container may 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 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. 73.23(a) and in this section must be marked ``SGI--
Modified Handling'' in a conspicuous manner on the top and bottom of
each page to indicate the presence of protected information. The first
page of the document must also contain:
(i) The name, title, and organization of the individual authorized
to make a Safeguards Information--Modified Handling safeguards
information designation, and who has determined that the document
contains Safeguards Information;
(ii) The date the determination was made; and
(iii) An indication that unauthorized disclosure would be subject
to civil and criminal sanctions.
(2) In addition to the ``SGI--Modified Handling''' markings at the
top and bottom of each page, transmittal letters or memoranda which do
not in themselves contain Safeguards Information must be marked to
indicate that attachments or enclosures contain Safeguards Information
but that the transmittal does not (e.g., ``When separated from
Safeguards Information--Modified Handling 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 of documents or other information
is required for correspondence to and from the NRC. The portion marking
must be sufficient to allow the recipient to identify and distinguish
those sections of the document or other information containing the
Safeguards Information from non-Safeguards Information. Documents and
other matter containing Safeguards Information in the hands of
contractors and agents of licensees that were produced more than one
year prior to the effective date of this amendment need not be marked
unless they are removed from storage containers for use.
(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.
If Safeguards Information is reproduced on a digital copier that would
retain Safeguards Information in its memory, then the copier may not be
connected to a network.
(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 ``SGI--Modified Handling.'' The outer
envelope or wrapper must be opaque, addressed to the intended
recipient, must contain the address of the sender, and must not bear
any markings or indication that the document contains Safeguards
Information.
(2) Safeguards Information may be transported by any commercial
delivery
[[Page 7216]]
company that provides nationwide overnight 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 must be transmitted electronically only by protected
telecommunications circuits (including facsimile) or encryption
(Federal Information Processing Standard [FIPS] 140-2) 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 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 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. Each
file containing Safeguards Information 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 is produced on a typewriter, the
ribbon must be removed and stored in the same manner as other
Safeguards Information or media.)
(2) Safeguards Information 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 files
shall be properly labeled as ``SGI-Modified Handling'' 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 automated processing of Safeguards Information 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 category. Documents
originally containing Safeguards Information must be removed from the
Safeguards Information category whenever the information no longer
meets the criteria contained in this part. 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 must be exercised only by
the NRC or with NRC approval or in consultation with the individual or
organization that made the original determination, if possible.
(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
tearing into small pieces, burning, shredding or any other method that
precludes reconstruction by means available to the public at large.
Piece sizes one half inch or smaller composed of several pages or
documents and thoroughly mixed would be considered completely
destroyed.
39. In Sec. 73.57 paragraphs (b)(2)(i) and (ii) are revised 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 by power reactor licensees.
* * * * *
(b) * * *
(2) * * *
(i) For unescorted access to the nuclear power facility or for
access to Safeguards Information (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 and 73.22: Employees of other
agencies of the United States Government; a member of the Congress; the
Governor of a State or his or her designated representatives;
individuals to whom disclosure is ordered pursuant to Sec. 2.709(f) of
this chapter;
* * * * *
PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS
40. The authority citation for part 76 continues 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). 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).
41. 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 of this
chapter. Information designated by the U.S. Department of Energy as
Unclassified Controlled Nuclear Information must be protected at a
level equivalent to that accorded Safeguards Information.
* * * * *
42. 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.
43. 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.
[[Page 7217]]
PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
44. The authority citation for part 150 continues 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). 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).
45. 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. Sec. 73.21 and 73.23 of this chapter.
* * * * *
Dated at Rockville, Maryland this 7th day of February 2005.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-2665 Filed 2-10-05; 8:45 am]
BILLING CODE 7590-01-P