[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Rules and Regulations]
[Pages 63546-63582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24904]
[[Page 63545]]
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Part II
Nuclear Regulatory Commission
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10 CFR Parts 2, 30, 40, et al.,
Protection of Safeguards Information; Final Rule
Federal Register / Vol. 73 , No. 207 / Friday, October 24, 2008 /
Rules and Regulations
[[Page 63546]]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76, and 150
RIN 3150-AH57
[NRC-2005-0001]
Protection of Safeguards Information
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations for the protection of Safeguards Information (SGI) to
protect SGI from inadvertent release and unauthorized disclosure which
might compromise the security of nuclear facilities and materials. The
amendments modify the requirements for the protection of SGI with
respect to persons, information, and materials subject to the
regulations, as well as those that are not. These amendments are within
the scope of Commission authority under the Atomic Energy Act of 1954,
as amended (AEA). The NRC published a proposed rule on SGI on February
11, 2005, and published a revised proposed rule on October 31, 2006, to
allow for public comment on changes to the proposed rule text made for
the following reasons: In response to public comments, to reflect
amendments to the AEA in the Energy Policy Act of 2005 (EPAct), and to
reflect Commission Orders issued to licensees authorized to possess and
transfer items containing certain quantities of radioactive material.
The NRC is now publishing this final rule, in which the NRC is
responding to the comments that have been received and is making
appropriate changes to the text of the revised proposed rule.
DATES: This rule is effective on February 23, 2009. Licensees and other
persons subject to this rule are required to implement this rule by
February 23, 2009. Licensees required to submit to the NRC any changes
to security plans under these regulations are required to submit such
changes to the NRC by this effective date.
ADDRESSES: You can access publicly available documents related to this
document using the following methods:
Federal e-Rulemaking Portal: Go to http://www.regulations.gov and
search for documents filed under Docket ID NRC-2005-0001. Address
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail
[email protected].
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee, publicly available documents at the NRC's PDR, Public
File Area O1-F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland.
NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into 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: Jason Zorn, Attorney, Office of the
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-8350, e-mail [email protected]; or
Bernard Stapleton, Office of Nuclear Security and Incident Response,
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301) 415-2432, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Need for Rule
III. Purpose of Rulemaking
IV. Discussion
A. Resolution of Public Comments on the Revised Proposed Rule
1. Overview of Comments on the Revised Proposed Rule
2. Comments and Issues, and Their Resolution in the Final Rule
B. Analysis of Changes Made in the Final Rule to the Text of the
Revised Proposed Rule
V. Criminal Penalties
VI. Agreement State Issues
VII. Voluntary Consensus Standards
VIII. Finding of No Significant Impact: Environmental Assessment
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis
XIII. Congressional Review Act
I. Background
On February 11, 2005 (70 FR 7196), the NRC published a proposed
rule to amend 10 CFR parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73,
76, and 150 governing the handling of Safeguards Information (SGI) and
to create a new category of protected material, Safeguards
Information--Modified Handling (SGI-M). Subsequently, Congress passed
the Energy Policy Act of 2005 (EPAct), Public Law No. 109-58, 119 Stat.
594. Section 652 of the EPAct amended section 149 of the Atomic Energy
Act of 1954, as amended (AEA) to require fingerprinting, for criminal
history records check purposes, of a broader class of persons. Before
the EPAct, the NRC's fingerprinting authority was limited to requiring
licensees and applicants for a license to operate a nuclear power
reactor under 10 CFR part 50 to fingerprint individuals prior to
granting access to SGI. The EPAct expanded the NRC's authority to
require fingerprinting of individuals before granting them access to
SGI. Under the EPAct, fingerprinting by the following individuals or
entities is necessary before granting access to SGI: (1) Individuals
licensed or certified to engage in an activity subject to regulation by
the Commission, including utilization facilities; (2) Individuals who
have filed an application for a license or certificate to engage in
Commission-regulated activities; and (3) Individuals who have notified
the Commission in writing of an intent to file an application for
licensing, certification, permitting, or approval of a product or
activity subject to regulation by the Commission.
The EPAct preserved the Commission's authority in Section 149 to
relieve by rule certain persons from the fingerprinting,
identification, and criminal history records checks required for access
to SGI. The Commission exercised that authority to relieve by rule
certain categories of persons from those requirements, including
Federal, State, and local officials involved in security planning and
incident response; Agreement State employees who evaluate licensee
compliance with NRC-issued security-related orders; members of Congress
who request SGI as part of their oversight function; and certain
foreign representatives. These exemptions are based on the Commission's
findings that interrupting those individuals' access to SGI to perform
fingerprinting and criminal history records checks (1) would harm vital
inspection, oversight, planning, and enforcement functions, (2) would
impair communications among the NRC, its licensees, and first
responders in the event of an imminent security threat or other
emergency, and (3) could strain the Commission's cooperative
relationships with its international counterparts, and might delay
needed exchanges of information to the detriment of current security
initiatives both at home and abroad. The final rule was published in
the Federal Register
[[Page 63547]]
on June 13, 2006 (71 FR 33989). That final rule was necessary to avoid
disruption of the Commission's information sharing activities during
the interim period while the Commission completed the overall revision
of the SGI-related regulations in this rulemaking.
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 NRC's regulations in Title 10 of the Code of Federal Regulations
(CFR) contains requirements for the protection of SGI. Commission
orders issued since September 11, 2001, have also imposed requirements
for the designation and protection of SGI. These requirements apply to
SGI in the hands of any person, whether or not a licensee of the
Commission, who produces, receives, or acquires SGI. An individual's
access to SGI requires both a valid ``need to know'' for the
information and an authorization based on an appropriate background
check. Power reactors, certain research and test reactors, and
independent spent fuel storage installations are examples of the
categories of licensees currently subject to the provisions of 10 CFR
part 73 for the protection of SGI. Examples of the types of information
designated as SGI include the physical security plan for a licensee's
facility, the design features of a licensee's physical protection
system, and operational procedures for the licensee's security
organization.
The Commission has authority under Section 147 of the AEA to
designate, by regulation or order, other types of information as SGI.
For example, Section 147a.(2) allows the Commission to designate as SGI
a licensee's or applicant's detailed security measures (including
security plans, procedures and equipment) for the physical protection
of source material or byproduct material in quantities determined by
the Commission to be significant to the public health and safety or the
common defense and security. The Commission has, by order, imposed SGI
handling requirements on certain categories of these licensees. An
example is the November 25, 2003, Order issued to certain materials
licensees.\1\
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\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).
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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. Licensee employees, past
or present, and all other persons who have had access to SGI have a
continuing obligation to protect SGI in order to prevent inadvertent
release and unauthorized disclosure. Information designated as SGI must
be withheld from public disclosure and must be physically controlled
and protected. Protection requirements include (1) secure storage; (2)
document marking; (3) restriction of access; (4) limited reproduction;
(5) protected transmission; and (6) controls for information processing
on electronic systems.
Inadequate protection of SGI, including unauthorized disclosure,
may result in civil and/or criminal penalties. The AEA explicitly
provides in Section 147a. that ``any person, whether or not a licensee
of the Commission, who violates any regulations adopted under this
section shall be subject to the civil monetary penalties of Section 234
of this Act.'' Furthermore, willful violation of any regulation or
order governing SGI is a felony subject to criminal penalties in the
form of fines or imprisonment, or both, as prescribed in Section 223 of
the AEA.
II. Need for Rule
Changes in the threat environment have revealed the need to protect
as SGI additional types of security information held by a broader group
of persons, including licensees, applicants, vendors, and certificate
holders. The regulations in effect prior to this rule did not specify
all of the types of information that could be designated as SGI and are
now recognized to be significant to the public health and safety or the
common defense and security. The unauthorized release of this
information could result in harm to the public health and safety and
the Nation's common defense and security, as well as damage to the
Nation's critical infrastructure, including nuclear power plants and
other facilities and materials licensed and regulated by the NRC or
Agreement States.
Since September 11, 2001, the NRC has issued orders that have
increased the number of licensees whose security measures will be
protected as SGI and added types of security information considered to
be SGI. Orders have been issued to power reactor licensees, fuel cycle
facility licensees, certain source material licensees, and certain
byproduct material licensees. Some of the orders expanded the types of
information to be protected by licensees who already have an SGI
protection program, such as nuclear power reactor licensees. Other
orders were issued to licensees that have not previously been subject
to SGI protection requirements in the regulations, such as certain
licensees authorized to manufacture or initially transfer items
containing radioactive material.\2\ Some orders imposed a new
designation: Safeguards Information-Modified Handling (SGI-M).
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\2\ See Order (69 FR 3397; January 23, 2004).
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SGI-M refers to SGI with handling requirements that are modified
somewhat due to the lower risk posed by unauthorized disclosure of the
information. The SGI-M protection requirements apply to certain
security-related information regarding quantities of source, byproduct,
and special nuclear materials for which the harm caused by unauthorized
disclosure of information would be less than that for other SGI.
Some of the requirements imposed by orders that have increased the
types of information to be considered SGI are not covered by the
current regulations. Although 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.
III. Purpose of Rulemaking
NRC staff review of the SGI regulatory program indicates that
changes in the regulations are needed to address issues such as access
to SGI, types of security information to be protected, and handling and
storage requirements.
This rulemaking will:
(1) Revise the definition of ``need to know'' in 10 CFR 73.2;
(2) Implement expanded fingerprinting and criminal history records
check procedures for broader categories of individuals who will have
access to SGI unless exempt from those requirements;
(3) Implement a requirement for background checks to determine
trustworthiness and reliability for
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individuals who will have access to SGI unless exempt from those
requirements;
(4) Implement generally applicable requirements for SGI that are
similar to requirements imposed by the orders;
(5) Expand the scope of part 73 to include additional categories of
licensees (e.g., source and byproduct material licensees, research and
test reactors not previously covered, and fuel cycle facilities not
previously covered). As expanded, vendors, applicants and certificate
holders are also within the scope of the rule;
(6) Expand the types of security information covered by the
definition of SGI in Sec. 73.2 and the information categories
described in Sec. Sec. 73.22 and 73.23 to include detailed security
measures for the physical protection of byproduct, source, and special
nuclear material; emergency planning scenarios and implementing
procedures; uncorrected vulnerabilities or weaknesses in a security
system; and certain training and qualification information;
(7) Clarify requirements for obtaining access to SGI in the context
of adjudications and clarify the appeal procedures available;
(8) Modify the original proposed rule to align it with the final
rule in 10 CFR 73.59 granting relief from the fingerprinting,
identification and criminal history records checks and background
checks for designated categories of individuals; and
(9) Modify 10 CFR 73.59 to make it consistent with the language and
structure of the proposed SGI rule.
In the development of the rule, a graded approach, based on the
risks and consequences of information disclosure, was used to determine
which category of licensee or type of information would be subject to
certain protection requirements. This graded approach was applied to
issues such as the type of information to be protected, the classes of
licensees subject to the rule, and the level of handling requirements
necessary for the various licensees. For example, the graded approach
allows certain licensees to employ the modified-handling procedures
introduced in recent orders and now set forth in the SGI-M provisions
of this final rule.
The requirements set forth in this final rule are the minimum
restrictions the Commission finds necessary to protect SGI against
inadvertent release or unauthorized disclosure which might compromise
the health and safety of the public or the common defense and security.
The final rule covers those facilities and materials the Commission has
already determined need to be protected against theft or sabotage. The
categories of information constituting SGI relate to the types of
facilities and the quantities of special nuclear material, source
material and byproduct material determined by the Commission to be
significant and therefore subject to protection against unauthorized
disclosure pursuant to Section 147 of the AEA. Unauthorized release of
SGI could reduce the deterrence value of systems and measures used to
protect nuclear facilities and materials and allow for the possible
compromise of those facilities and materials. Such disclosures could
also facilitate advance planning by an adversary intent on committing
acts of theft or sabotage against the facilities and materials within
the scope of this rule. Further, the Commission has determined,
pursuant to Section 147a.(3)(B) of the AEA, that the unauthorized
disclosure of SGI 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. Discussion
A. Resolution of Public Comments on the Revised Proposed Rule
1. Overview of Comments on the Revised Proposed Rule
On February 11, 2005 (70 FR 7196), the Commission published a
proposed rule and requested public comments. On October 31, 2006 (71 FR
64004), the Commission published a revised version of the proposed rule
that responded to comments on the original proposed rule. The revised
proposed rule also solicited comments on changes and additions to the
original proposed rule by January 2, 2007. In addition to this general
solicitation for comments, the revised proposed rule (71 FR 64051)
solicited specific public comment on the appropriateness of the
exemptions in the revised provisions in 10 CFR 73.59, as they apply to
various categories of individuals. The specified categories of
individuals are exempt from the background check requirements
(including fingerprinting for a criminal history records check) for
access to SGI.
Ten comment letters were received. Copies of those letters are
available for public inspection and copying for a fee at the NRC Public
Document Room, 11555 Rockville Pike, Rockville, Maryland, or on the
NRC's Agencywide Documents Access and Management System, available
online at: http://www.nrc.gov/reading-rm/adams/web-based.html.
Two comment letters were from agreement states, six comment letters
were from industry, one comment letter was from a university with a
research reactor, and one comment letter was from an individual. The
comment letters provided various points of view and suggestions for
clarifications, additions and deletions. Also, although commenters did
not refer to the request for specific comment, the Commission received
two comments on Sec. 73.59. Responses to the comments are set forth
below.
2. Comments and Issues, and Their Resolution in the Final Rule
General Issues.
Information in Licenses.
Comment: A commenter states that although not referenced,
information about the types and quantities of material listed on a
license in some cases should be considered SGI when the license
contains nuclides and quantities of concern. The commenter also states
that licensees transferring material to another licensee must obtain a
copy of the recipient's license so this information is easily available
and in many cases publicly available. According to this commenter, this
issue needs to be reviewed by NRC and state agencies to assure the
appropriate level of security is given to standard licensing documents.
Response: Under existing regulations and practice, licensing
documents are reviewed to determine if they contain any information
which constitutes SGI or other information which warrants protection
from unauthorized disclosure. Generally speaking, information on
possession limits for radionuclides does not meet the definition of
SGI. This information, although not categorized as SGI, may be withheld
from public disclosure if disclosure of the information could raise
security concerns. For example, in some contexts, information on actual
quantities possessed in relation to possession limits could raise
security concerns. Prior to transferring material to another licensee,
verification that the licensee is authorized to receive the material is
required by one of the methods provided in Sec. 30.41(d) or in
Commission orders.
Interaction with other regulations.
Comment: Another commenter asserts that the proposed rule conflicts
with the requirements of 49 CFR part 15, the Department of
Transportation (DOT) regulations regarding the protection of
information associated with the transportation of certain types and
quantities of radioactive materials. The commenter further believes
that this
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will result in licensees transporting nuclear materials having to
contend with two separate information protection regulations for the
same information. The commenter urges the NRC and the DOT to develop a
coordinated rulemaking regarding this issue.
Response: This comment was made on the previous proposed rule and a
response was provided at 71 FR 64024. The commenter has not provided
any new information, and the Commission continues to conclude that the
NRC's regulations are not in conflict with the DOT regulations.
Security plans required by the NRC can be developed so that they also
comply with DOT requirements.
Implementation period for the rule.
Comment: Some commenters believe that the implementation period of
90 days after publication of the rule is too short. One commenter
asserts that gaseous diffusion plant licensees will need to review
existing security plans that integrate protective measures for special
nuclear material, classified material and other security interest areas
against existing classification guidance and SGI designation guidance
to ensure that information is properly designated and marked. A
commenter believes that for information subject to multiple,
overlapping protection programs, the 90-day implementation period is
not sufficient. The commenters believe that at least one year should be
provided for implementation for power reactors and other licensee
sites.
Response: Although many of the requirements in the rule for the
designation and handling of SGI are similar to the requirements in
orders issued by the Commission since September 11, 2001, some
licensees are subject to new requirements in the rule. For example,
some security orders have required licensees to conduct a criminal
history records check prior to granting an individual access to SGI,
but have not imposed the other elements of a background check (at a
minimum, an individual's employment history, education, and personal
references). Unless one of the exemptions from the background check
requirement in Sec. 73.59 applies, licensees will be obligated to
perform a background check consisting of all of its elements for access
to SGI. In order to allow sufficient time for licensees to implement
this new requirement and any others to which a licensee may be subject,
the Commission is extending the time period for the implementation of
the final rule from 90 days to 120 days. The Commission does not,
however, believe that an implementation period of at least one year is
needed.
Section-Specific Comments:
Part 2: Rules of Practice for Domestic Licensing Proceedings and
Issuance of Orders.
Comments concerning burdens on the parties to an NRC adjudication.
Comment: An agreement state commenter predicts that intervenors in
an adjudication will over-designate the material they create as SGI
because of the potential threat of civil and criminal penalties for
unauthorized disclosure of SGI documents. The commenter also believes
that it is too burdensome for intervenors to determine whether the
engineering and safety analyses they generate to support a contention
are SGI. The commenter believes that in light of the above
difficulties, parties should be allowed to file documents marked ``may
contain safeguards information,'' which would be treated as SGI pending
a determination by NRC staff members not involved in the adjudicatory
proceeding. Although it is not entirely clear from the comment letter,
the commenter might also be requesting that intervenors not be
potentially subject to criminal and civil penalties for violating SGI
requirements.
Response: In response to a comment on the first proposed rule, the
Commission acknowledged that there is a tendency to ``err on the safe
side'' in making SGI designations, and stated that it might make
appropriate changes if over-designating documents as SGI arises as a
problem in practice. (71 FR 64020-64021). Eliminating criminal and
civil sanctions for violating SGI requirements, however, would not be
among these appropriate changes. The Commission believes that criminal
and civil sanctions serve a worthwhile purpose in securing compliance
with SGI provisions, and that these sanctions should apply equally to
all parties. The AEA explicitly authorizes criminal sanctions for
willful violations of SGI provisions. See 42 U.S.C. 2167 and 2273.
The Commission does not accept the commenter's suggestion to allow
parties to mark pleadings as possibly containing SGI awaiting a
determination by the NRC staff; the Commission thinks it fair that
parties be responsible for determining whether the analyses they
generate contain SGI. The commenter's suggestion, if implemented, would
allow parties to file documents labeled ``may contain Safeguards
Information'' without doing a careful analysis. The potential for over-
designating SGI would be much greater under the commenter's suggested
regime than under the rule as proposed. Until the NRC staff review was
complete, there would likely be a much larger number of documents
subject to SGI handling than would be the case under the proposed rule.
If a party needs assistance, however, in determining whether the
materials it creates contain SGI, the staff will be available to
provide advice if requested.
Comment: An agreement state commenter asserts that proposed Sec.
73.22(h) allows the decontrol of SGI-marked documents only by, or with
the approval of, the NRC, and suggests that a mechanism be established
allowing intervenors to request the NRC staff to decontrol documents,
or portions thereof. The commenter believes that such a process would
benefit intervenors by removing from them the burden of having to
control and store a large mass of documents as SGI. The commenter
states that destruction might not be a viable option for an intervenor
to reduce its burdens because of that intervenor's internal document
retention procedures.
Response: Contrary to the commenter's understanding, Sec. 73.22(h)
allows an SGI document to be decontrolled in consultation with the
person or organization making the original SGI determination, as well
as by the NRC or with the NRC's approval. The language of 73.22(h) and
73.23(h) has been modified to make this intent clear. If an intervenor
no longer believes a document to contain SGI, Sec. Sec. 73.22(h) and
73.23(h) allow the intervenor to contact either the NRC, or the
individual or organization making the original SGI determination, for
an authoritative decontrol determination.
The Commission is not adopting the commenter's suggestion to have
the NRC decontrol portions of SGI documents possessed by intervenors.
Such a task would require the expenditure of substantial resources
without concomitant gain. For instance, the commenter's stated goal of
reducing the number of documents requiring SGI handling would not be
furthered because a partially decontrolled document is still an SGI
document subject to SGI handling requirements.
Comment: An agreement state commenter asserts that the proposed
rule chills a party's right to judicial appeal of an NRC decision that
may involve SGI because it fails explicitly to give a party to an NRC
proceeding a right to provide SGI to federal Courts of Appeal (even for
filings under seal) in support of its judicial filings. The commenter
believes that the proposed rules are unclear on whether a party would
need pre-authorization from the NRC before filing SGI with a court. The
[[Page 63550]]
commenter recommends revising part 73 to ensure that NRC rules defer to
established court procedures so that a party may independently file SGI
under seal with the court.
Response: The Commission disagrees that the approach adopted by the
Commission chills a party's right to judicial appeals of NRC decisions.
Over the years, it has been rare that a party to an NRC adjudicatory
proceeding has sought to file SGI in its federal court filings. The
Commission prefers to consider such matters on a case-by-case basis,
and, therefore, does not believe it appropriate to address this issue
through this rulemaking. If this situation were to become frequent,
rulemaking may be undertaken in the future. In the meantime, parties
who contemplate filing SGI in judicial appeals of NRC decisions should
contact the Solicitor of the NRC. The Commission does note that the
requirement to protect SGI in federal court filings, or in any other
context, existed under the old rules and is not fundamentally altered
by these rule changes.
Comments concerning SGI designation and access determinations.
Comment: A commenter states that the procedure specified in
proposed Sec. 2.336(f)(1)(iv) for review of an adverse determination
on a party's trustworthiness and reliability should avoid any
appearance of biasing the proceeding, which might occur if the review
is conducted by the presiding officer of the proceeding. Such a review,
according to the commenter, would require the presiding officer to
consider personal information about the party, or the party's attorney,
consultant, or expert witness to determine whether the person is
trustworthy and reliable for purposes of having access to SGI. The
commenter further states that the presiding officer might later be
called upon to decide the merits of a contention based on other
considerations, potentially including the credibility and
persuasiveness of witnesses and advocates. In such circumstances, the
commenter believes that questions may be raised about whether these
judgments were improperly affected by personal information. The
commenter concludes that it would be equally efficient, and avoid any
appearance of bias, to require that all requests for review be
presented to the ``Chairman of the Atomic Safety and Licensing Board
(ASLB) Panel'' [Chief Administrative Judge], who would appoint an
officer, other than the presiding officer, to review the adverse
determination. Moreover, the commenter believes that such a process
would reduce the risk that reviews by the presiding officer would
adversely affect the schedule for the proceeding.
Response: The Commission agrees with the commenter and is revising
the rule to require the designation of a separate officer to review any
adverse determination on trustworthiness and reliability made by the
NRC Office of Administration. The Commission is confident that the
presiding officer of an adjudicatory proceeding is capable of reviewing
such a determination objectively without affecting the fairness of the
proceedings. However, the Commission also acknowledges that such an
arrangement may create the appearance of bias, and thus finds it
appropriate to require, as a matter of course, that an officer detached
from the proceedings be appointed to review the adverse determination.
Section 2.336(f)(1)(iv) has been revised to reflect this. Conforming
changes have also been made to sections 2.705(c)(3)(iv),
2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D), which contain similar
provisions.
Comment: An agreement state commenter objects to the proposed
process for making ``need to know'' determinations in NRC adjudications
and the process for challenging adverse ``need to know''
determinations. The commenter believes that the process for making such
determinations, which is reflected in the definition of ``need to
know'' in proposed Sec. 73.2, is flawed in that it can place
responsibility for the determination in the hands of a party
``adverse'' to an intervenor, whose judgment might be biased.
Specifically, the commenter notes that the NRC staff would make the
``need to know'' determination if SGI either was originated by the NRC
staff or is in the NRC staff's possession. In other cases, the
originator of the SGI would make the determination, and in some cases
the originator is the applicant.
The commenter also believes that the process for making ``need to
know'' determinations, and challenging adverse determinations,
``ignores the protections'' of Federal Rule of Civil Procedure 26(b).
The commenter appears to believe that the process for challenging
adverse SGI determinations in NRC adjudicatory settings would be
governed by proposed Sec. 2.336(f)(1)(iv). According to the commenter,
that section would not protect an intervenor's ``confidential'' and
privileged information from being disclosed to adverse parties (which
the commenter asserts includes the NRC staff) because an intervenor's
rationale for compelling disclosure would have to be served on the
staff. The commenter asserts that such confidential, privileged
information could include confidential details about a nontestifying
witness, attorney work-product, and litigation strategy, that the
commenter believes might have to be divulged to demonstrate that the
intervenor has a ``need to know'' for the information.
From the commenter's discussion of Sec. 2.336(f)(1)(iv) as applied
to ``need to know'' determinations, it appears that the commenter
believes that initial determinations are made by the NRC's Office of
Administration. The commenter fears that this determination might be
biased due to influence from the NRC staff or its counsel, and that a
``wall of separation'' should be erected between the NRC staff/counsel
and the Office of Administration. The commenter concludes by stating
that the Commission ``must ensure'' that ``need to know''
determinations be made by ``an unbiased NRC entity,'' and that, at a
minimum, the NRC staff/counsel making such determinations (as well as
the information upon which those determinations are based) be screened
from the NRC staff/counsel litigating the proceeding.
Response: Section 2.336(f)(1)(iv) does not govern challenges to
adverse ``need to know'' determinations. Section 2.336(f)(1)(i) and the
definition of ``need to know'' in proposed Sec. 73.2 provide that
disputes over ``need to know'' determinations are to be resolved by the
presiding officer. Section 2.336(f)(1)(iv) governs disputes over
``trustworthiness and reliability'' determinations. ``Need to know''
and ``trustworthiness and reliability'' are distinct concepts (compare
the separate definitions for the two terms in proposed Sec. 73.2)
reflected in separate requirements for access to SGI (see sections
2.336(f)(1), 73.22(b), and 73.23(b)). Also, the NRC's Office of
Administration makes all ``trustworthiness and reliability''
determinations in adjudications (see section 2.336(f)(1)(iii)-(iv)),
but ``need to know'' determinations are made by the NRC staff office in
the best position to make an informed decision about ``need to know''
or by the originator (see definition of ``need to know'' in section
73.2).
With these clarifications in mind, there are two commenter issues
to be addressed. The first issue is that the initial ``need to know''
determination might reflect a biased judgment made by a party
``adverse'' to the intervenor. Although a party making the
determination might be ``adverse'' to an intervenor, that party would
still have a duty to comply with the rule. In disputed cases, the
matter would be decided by the presiding officer, who is independent of
the parties. This basic process is not substantially different
[[Page 63551]]
from other discovery, in which parties may assert privileges to keep
various information from adverse parties, who can then file a motion to
compel disclosure.
The second issue is that to support an intervenor's ``need to
know'' request before the presiding officer, the intervenor might have
to reveal to adverse parties confidential information, such as attorney
work-product, litigation strategy, or confidential details about a
nontestifying expert. The Commission believes that the ``need to know''
requirement will not result in a prejudicial disclosure of an
intervenor's opinions or strategy. According to the definition in Sec.
73.2, the ``need to know'' standard is satisfied if the following two
conditions are met: (1) The information is necessary for the party ``to
proffer and/or adjudicate a specific contention,'' and (2) the
recipient has the ability to ``effectively utilize the specific
Safeguards Information in the proceeding.'' Because an intervenor's
positions must be specifically stated at the earliest stage of
litigation (the contention stage), an intervenor's strategy and
opinions must, to a substantial degree, be made public at the earliest
stages of litigation.\3\ The first ``need to know'' condition might be
satisfied based on the face of the contention alone. Even if further
information is required, a presiding officer reviewing an adjudicatory
dispute concerning a ``need to know'' determination will probably not
need to delve much further into an intervenor's strategy than might a
presiding officer assessing a party's ``need for the information'' in
challenges to assertions of qualified, as opposed to absolute,
privileges.\4\ But even if some prejudice were to result, SGI simply
must be protected from unauthorized disclosure by limiting its
dissemination only to those who have a ``need to know'' for it and who
otherwise meet the requirements for access.
---------------------------------------------------------------------------
\3\ For an intervenor's contention to be admissible under 10 CFR
2.309(f)(1), the intervenor must state a specific issue of law or
fact, briefly explain the basis for the contention, provide concise
statements of alleged fact or expert opinion in support of the
contention, demonstrate that the contention is material and within
the proceeding's scope, and provide enough information to show that
a genuine dispute exists on a material issue of law or fact.
\4\ See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d
1336, 1344 (D.C. Cir. 1984) (stating that ``[i]n the discovery
context, when qualified privilege is properly raised, the litigant's
need is a key factor. Whether the information is disclosed depends
on the relative weight of the claimant's need and the government's
interest in confidentiality'').
---------------------------------------------------------------------------
Satisfying the second ``need to know'' condition for access might
require the disclosure of details about a non-testifying expert's
qualifications, but the text of Federal Rule of Civil Procedure
26(b)(4) protects only the ``facts known or opinions held by'' such
experts, not inquiries into their qualifications. Although the
predominant approach of the federal courts apparently requires a
showing of ``extreme circumstances'' to justify discovery of even the
identity of a non-testifying expert,\5\ the Commission does not rigidly
apply the procedures used in federal courts. In NRC adjudicatory
proceedings, the Commission does not believe that disclosing either the
identity of such an expert or his or her qualifications will
substantially prejudice parties. In any event, the need to protect SGI
is paramount.
---------------------------------------------------------------------------
\5\ See 8 Charles Alan Wright, Arthur R. Miller & Richard L.
Marcus, Federal Practice and Procedure, Sec. 2032 (2d ed. 1994).
---------------------------------------------------------------------------
Comment: A commenter believes that for the purposes of part 2,
documents should be considered SGI if they have been designated as SGI
in accordance with part 73. The commenter notes that in the event of a
dispute about whether a document that has been designated as SGI should
nevertheless be disclosed, the presiding officer must determine whether
the person seeking disclosure should be granted access to the SGI
(i.e., has a need to know and is trustworthy and reliable). The
commenter also asserts, however, that the presiding officer should not
consider whether the information in the document meets the definition
of SGI because presiding officers generally are not inherently
qualified to determine whether information meets the definition of
``Safeguards Information.'' The commenter believes that if the
definition of ``Safeguards Information'' in 10 CFR part 2 is the same
as the definition in part 73, it will appear that parties may seek a
determination by the presiding officer on whether the information meets
that definition. The commenter also believes that it is clear from
proposed Sec. Sec. 2.336(f)(1), 2.705, 2.709 and 2.1010, which specify
the grounds for a presiding officer to issue an order requiring
disclosure of SGI, that a presiding officer would not be authorized to
issue such an order on the grounds that the information does not meet
the definition of SGI. The commenter believes this to be appropriate
and to this end, suggests that Sec. 2.4 ``Safeguards Information'' be
modified to state, ``Safeguards Information means information that has
been determined to be Safeguards Information in accordance with 10 CFR
73.21-23.''
Response: Contrary to the commenter's belief, the proposed rule
nowhere prohibits presiding officers from deciding whether information
in a document meets the definition of SGI. In Private Fuel Storage,
L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-22, 62 NRC
542 (2005), the Commission dealt with the issue of a licensing board
revisiting SGI redactions contained in one of its previously issued
decisions. The Commission, citing an analogous provision in Sec.
2.904, directed the licensing board to request the Commission to
appoint a special adjudicatory employee ``when necessary.'' Id. at 545.
The Commission believes that presiding officers can also resolve other
questions concerning the designation of SGI, such as those arising in
discovery disputes between parties. If a presiding officer believes
that he or she could benefit from expert assistance in determining
whether information meets the definition of SGI, he or she can request
the Commission to appoint a special adjudicatory employee, who will
assist the Board in making such determinations.
As for the suggested change to the definition of ``Safeguards
Information'' in part 2, the proposed definition is based on Section
147 of the AEA and the Commission has determined that the definition of
that term in the regulations should be as broad as the statutory
definition. Based on this definition, Sec. Sec. 73.21, 73.22, and
73.23 describe types of information included within the scope of the
statutory definition and include examples of information designated as
SGI. The Commission believes that a cross-reference to those provisions
in the definition of SGI is unnecessary.
Comment: An agreement state commenter objects to the abuse of
discretion standard in proposed Sec. Sec. 2.709(f)(1)(iv) and
2.1010(b)(6)(i)(D) \6\ for review by a presiding officer \7\ in
adjudications of adverse trustworthiness and reliability determinations
by the NRC Office of Administration. The commenter prefers that such
determinations be given ``plenary'' review,\8\ and gives the following
four reasons for its position:
---------------------------------------------------------------------------
\6\ Sections 2.336(f)(1)(iv), 2.704(c)(3)(iv), 2.709(f)(1)(iv),
and 2.1010(b)(6)(i)(D) are mirror provisions of one another, with
slight differences due to the different contexts in which they are
applied.
\7\ In licensing proceedings, the presiding officer will
ordinarily be an Atomic Safety and Licensing Board. 10 CFR 2.4.
\8\ The Commission believes that by ``plenary'' review the
commenter means de novo review, in which a determination is reviewed
without deference to the decision-maker. By contrast, review for
abuse of discretion involves deference to the determination being
reviewed.
---------------------------------------------------------------------------
[[Page 63552]]
(1) On contested matters, the NRC staff's safety evaluations are
subject to ``plenary'' review, not review for an abuse of discretion,
so the NRC staff's trustworthiness and reliability determinations
should also be subject to ``plenary'' review. Both categories of issues
often involve matters of judgment and there is, therefore, no basis to
distinguish between them.
(2) Because the Commission itself has ``plenary'' power over its
staff, limiting the scope of presiding officer review will merely lead
to an unnecessary and time-consuming proliferation of appeals to the
Commission to exercise its ``plenary'' power.
(3) The abuse of discretion standard confuses the roles of an
adversary party and an independent adjudicator. Under the
Administrative Procedure Act (APA) and Atomic Energy Act of 1954, as
amended (AEA), the Commission may delegate adjudicatory decision-making
authority to a presiding officer and define the scope of Commission
review of that presiding officer's decision in a narrow fashion. When
the NRC staff participates as a party in an adjudicatory proceeding, it
is not performing an adjudicatory function but a litigating function,
and therefore there is no basis to limit the scope of review of any NRC
staff decision. There will always be a concern that the NRC staff's
trustworthiness and reliability determinations will be part of its
litigating strategy, and this concern can be addressed only if the
presiding officer or the Commission may exercise ``plenary'' power to
reverse the staff determination.
(4) The abuse of discretion review standard does not comply with
Section 181 of the AEA, which ``requires NRC standards to be the
`minimum impairment of the procedural rights which would be available
if * * * safeguards information * * * were not involved.' '' The
commenter believes that an abuse of discretion standard is not a
minimum impairment.
Response: The Commission believes that an abuse of discretion
standard is appropriate for presiding officer review in adjudications
of adverse trustworthiness and reliability determinations made by the
Office of Administration. The Commission chose the abuse of discretion
standard primarily because trustworthiness and reliability
determinations rely upon expertise developed through training and
experience. Office of Administration employees who make these
determinations possess specialized training and experience in
evaluating similar information for NRC employee security clearances.
Because of the Office of Administration's expertise, the Commission
believes that the office's trustworthiness and reliability
determinations will generally be sound. A searching, de novo review by
the presiding officer, therefore, would not be warranted. A presiding
officer review of adverse trustworthiness and reliability
determinations under an abuse of discretion standard will not involve
witness testimony or other procedures that might arguably put the
presiding officer in a better position to assess the evidence
underlying a trustworthiness and reliability determination.\9\
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\9\ To be clear, the Commission does not believe that setting up
a ``mini-hearing'' within a hearing by taking witness testimony and
using other trial-type procedures is justified to resolve what is,
at heart, a discovery dispute over whether certain individuals in a
party's litigation team can have access to SGI.
---------------------------------------------------------------------------
The following four numbered paragraphs respond in order to the four
numbered reasons given in the comment above:
(1) The commenter's comparison of the review of Office of
Administration trustworthiness and reliability determinations to the
review of staff safety evaluations is invalid. The commenter is
mistaken in stating that the staff's safety evaluations are subject to
review in contested licensing proceedings. Well-established Commission
precedent provides that the license application, and not the staff's
safety review, is the subject of a contested licensing proceeding.\10\
---------------------------------------------------------------------------
\10\ ``Final Rule, Changes to Adjudicatory Process,'' 69 FR
2182, 2202 (Jan. 14, 2004) (stating that ``[t]he adequacy of the
applicant's license application, not the NRC staff's safety
evaluation, is the safety issue in any licensing proceeding, and
under longstanding decisions of the agency, contentions on the
adequacy of the SER [Safety Evaluation Report] are not cognizable in
a proceeding'').
---------------------------------------------------------------------------
(2) The Commission does not believe that a limited scope of
presiding officer review will lead to a proliferation of appeals to the
Commission. First, most Commission adjudicatory proceedings do not
involve access to SGI, and there is no evidence to indicate that
proceedings involving SGI will often lead to disputes over
trustworthiness and reliability determinations. Second, the Commission
does not agree that the level of presiding officer review of adverse
trustworthiness and reliability determinations will have an effect on
the number of appeals to the Commission. Moreover, the commenter has
submitted no evidence indicating that an increase in appeals is likely.
The commenter also asserts that a limited scope of review by the
presiding officer is unnecessary and time consuming because the
Commission has ``plenary'' power over the NRC staff, which is being
read to mean that the Commission can review NRC staff decisions de
novo, without giving deference to them. The commenter's position
appears to be based on a belief that the Commission on appeal would
often, or always, exercise de novo review of the Office of
Administration's adverse trustworthiness and reliability
determinations, and that it would, therefore, make more sense to have
de novo review exercised at the presiding officer level since de novo
review is inevitable at some point. This position, however, overlooks
that the Commission does not exercise de novo review in many
situations,\11\ and there is no reason to believe that the Commission
will often, or always, exercise de novo review of adverse
trustworthiness and reliability determinations. The Commission is, in
fact, expressing with this rulemaking its judgment that trustworthiness
and reliability determinations made by the Office of Administration
warrant the deference that is reflected in the abuse of discretion
standard.
---------------------------------------------------------------------------
\11\ See e.g., Private Fuel Storage, L.L.C. (Independent Spent
Fuel Storage Installation), CLI-05-19, 62 NRC 403, 411 (2005)
(stating that the standard for overturning a factual finding of the
Board is the ``quite high'' standard of ``clear error''); Duke
Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-21, 60
NRC 21, 27 (2004) (stating that Board evidentiary rulings are
subject to an abuse of discretion standard).
---------------------------------------------------------------------------
(3) The Commission does not agree with the commenter that an abuse
of discretion standard for review of adverse trustworthiness and
reliability determinations confuses the role of an adversary with an
independent adjudicator. Although the Office of Administration is an
office within the NRC staff and the NRC staff is a party to the
litigation, the Office of Administration, itself, will have no interest
in the outcome of the litigation. In making trustworthiness and
reliability determinations, the Office of Administration will be
exercising a purely administrative function. This is the same type of
function that the Office of Administration regularly exercises in
making determinations on employment clearances and access
authorizations. Also, unlike private entities that serve private
interests, the NRC staff serves the public interest and has a duty to
ensure compliance with the Commission's regulations. There is,
therefore, no basis to believe that the Office of Administration's
[[Page 63553]]
determination on trustworthiness and reliability will be improperly
influenced.
It also appears that the commenter is suggesting that an ``abuse of
discretion'' standard for Office of Administration trustworthiness and
reliability determinations is contrary to the APA and the AEA, but
points to no specific provision of either the APA or the AEA that
supports such a position. The Commission is not aware of any provision
of the APA or the AEA that forbids an ``abuse of discretion'' review
standard or that forbids deference to an administrative determination.
(4) The Commission disagrees with the commenter's assertion that an
``abuse of discretion'' review standard for trustworthiness and
reliability determinations violates the ``minimum impairment''
requirement in Section 181 of the AEA. Section 181 of the AEA does not
apply to the scope of review for adverse trustworthiness and
reliability determinations. The impairments referred to in Section 181
are impairments of procedural rights that would be available if the
proceeding did not involve SGI, or in other words, procedural rights
that are normally available in a proceeding. An example of how the SGI
rule impacts normally available procedural rights can be found in the
context of discovery in adjudications. In discovery, a party has a
normally available procedural right to information available under the
rules of discovery. The requirement that an individual be found
trustworthy and reliable to access SGI is an impairment of this
normally available procedural right whenever a party is seeking
discoverable information designated as SGI. In such circumstances, the
party faces an additional hurdle (meeting the trustworthiness and
reliability requirement) that would not be faced if the proceeding did
not involve SGI. The trustworthiness and reliability requirement,
however, is the minimum impairment necessary to protect SGI and
complies with Section 181.
The process for making trustworthiness and reliability
determinations, and the review standard for adverse determinations, are
not impairments of normally available procedural rights but, rather,
components of a process intended to produce sound trustworthiness and
reliability determinations. The only normally available procedural
right that might be at issue here is the right to access discoverable
information, but the trustworthiness and reliability requirement is the
impairment of that right, not any subsequent adjudicatory review
procedures. As a general matter, review of a determination is provided
because of the possibility that the determination was erroneous or
otherwise improper. The standard for review and the procedures
attendant to review are matters for Commission judgment and are based
upon the nature of the determination, its importance, and the
likelihood that the determination may be erroneous or improper, among
other factors. In the case of trustworthiness and reliability
determinations in adjudications, the Commission has decided that the
procedures provided in Sec. Sec. 2.336(f)(1)(ii)-(iv) and 73.57(e) are
appropriate to provide for sound trustworthiness and reliability
determinations in a manner consistent with conducting reasonably
expeditious proceedings.
Comment: An agreement state commenter believes that the fifteen-day
deadline for presiding officer decisions on challenges, in adjudicatory
contexts, to adverse trustworthiness and reliability determinations is
not reasonable because the NRC staff will not commit to any reasonable
deadline for its own determination.
Response: The Commission is not lengthening the fifteen-day period
in Sec. Sec. 2.336(f)(1)(iv), 2.704(c)(3)(iv), 2.709(f)(1)(iv), and
2.1010(b)(6)(i)(D) for presiding officer decisions on challenges to
adverse trustworthiness and reliability determinations. The presiding
officer will not be conducting a trial-type hearing and will not be
performing a searching, de novo review of the evidence. Rather, the
presiding officer will be reviewing for abuse of discretion and will
base this review on a record compiled by the Office of Administration
as supplemented by one round of pleadings from the parties. The
Commission believes that fifteen days is sufficient time for this
review and that providing a longer period would unnecessarily delay
proceedings without a compensating benefit.
The commenter's analogy relating the time needed for the presiding
officer's decision to the time needed for the initial determination by
the NRC staff's Office of Administration's is not apt. In order to make
its decision, the Office of Administration must first collect
information that originates from a variety of sources. This process
takes time, and the speed of information collection depends upon the
time taken by the providers of the information. As explained in the
preceding paragraph, a presiding officer's review of an adverse
trustworthiness and reliability determination would involve review only
for an abuse of discretion and would not involve the presiding officer
independently gathering information for that determination.
Comment: An agreement state asserts that if the Commission were
unwilling to entertain appeals of presiding-officer-reviewed access
determinations on a timely basis, the proposed changes to part 2 would
lead to a denial of parties' rights to a fair hearing and the
assistance of counsel. The commenter asserts that lack of timely
Commission review would give the NRC staff, as a party in an
adjudicatory hearing, broad discretion to deprive an opposing party of
both expert witnesses and legal counsel needed to present its case.
According to the commenter, this situation would be a violation of
Section 555 of the APA, 5 U.S.C. 555.
Response: To the extent the comment reflects a concern about the
availability of Commission review of access determinations arising in
the pending high-level waste (HLW) Pre-License Application Presiding
Officer proceeding or any subsequent adjudication regarding the
expected application by the Department of Energy for a construction
authorization for a HLW repository, the comment overlooks the appeal
process available pursuant to 10 CFR part 2, subpart J. The current
Sec. 2.1015(b) contemplates prompt appeals to the Commission of
certain presiding officer orders; under the final SGI rule's revisions
to Sec. 2.1010, such appealable orders would include rulings
concerning whether SGI should be disclosed, as well as related rulings
upon review of adverse determinations with respect to trustworthiness
and reliability. In addition, the Commission has published a final rule
\12\ that provides for interlocutory review of comparable SGI-related
rulings in other adjudicatory proceedings. Moreover, the Commission
already has general discretionary authority to review presiding officer
actions on its own motion or in response to appropriate review requests
under Sec. 2.341. In short, the available means of appellate review
demonstrate the Commission's authority to ensure consistency and
fairness in adjudicatory proceedings.
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\12\ Final Rule, Interlocutory Review of Rulings on Requests by
Potential Parties for Access to Sensitive Unclassified Non-
Safeguards Information and Safeguards Information, 73 FR 12627
(March 10, 2008).
---------------------------------------------------------------------------
The Commission also disagrees with the comment's characterization
of the NRC staff's ``discretion'' with respect to access determinations
that may affect the hearing process. Staff determinations on a
requestor's trustworthiness and reliability are part of the agency's
statutory responsibility to protect SGI and are not determined
[[Page 63554]]
by the views of the staff in its capacity as a party to a proceeding.
The staff's independent obligations with respect to trustworthiness and
reliability determinations thus do not result in adjudicatory staff
``discretion'' to prevent SGI access by other parties. Accordingly, the
functional and appellate framework described above would protect
against possible violations of section 555 of the APA regarding the
rights of persons compelled or permitted to appear in person or by
representative in agency proceedings.
Comments concerning sanctions for violating SGI protective orders
in adjudications.
Comment: A commenter states that the provisions concerning civil
penalties are appropriate for violations that involve the disclosure of
SGI that by order is prohibited from being disclosed, but that
violations of orders requiring disclosure of SGI should be subject only
to the same penalties that would apply for violations of orders
requiring disclosure of other types of information. The commenter
believes that the regulation regarding the potential for civil
penalties for violation of an order should be clearly limited to
disclosure of SGI in violation of provisions of an order that are
imposed for the purpose of preventing unauthorized disclosure of SGI.
The commenter suggests revising proposed Sec. Sec. 2.336(f)(5),
2.705(c)(6), 2.709(f)(5) and 2.1010(b)(6)(v) to state: ``In addition to
any other sanction that may be imposed by the presiding officer for
violation of an order issued pursuant to this paragraph, disclosure of
Safeguards Information in violation of limitations on such disclosure
in an order pertaining to the disclosure of Safeguards Information may
be subject to a civil penalty imposed under Sec. 2.205.''
Response: The purpose of this rule is to impose requirements for
SGI to protect that information from unauthorized disclosure. See Sec.
73.1(b)(7). The Commission agrees with the commenter that the failure
to disclose SGI in violation of an order does not implicate provisions
for the protection of SGI. The Commission also agrees that the proposed
rule as written might be read to cover such a violation. Violating an
order by not disclosing SGI should be treated the same as violating an
order by not disclosing other types of information. The commenter's
proposed text, however, would make only acts of disclosure subject to
civil penalties under Sec. 2.205. The Commission intends that the
violation of any provision for the protection of SGI in an order be
subject to civil penalties, whether those provisions apply to the act
of disclosure or not. Therefore, Sec. 2.336(f)(5) in the final rule
has been modified to read as follows: ``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 a provision
for the protection of Safeguards Information from unauthorized
disclosure that is contained in an order may be subject to a civil
penalty imposed under Sec. 2.205.'' Conforming changes have also been
made to Sec. Sec. 2.705(c)(7) (2.705(c)(6) in the proposed rule),
2.709(f)(5), and 2.1010(b)(6)(v).
Comment: A commenter asserts that any provision concerning
potential criminal penalties for violation of an order concerning
disclosure of SGI should clearly state that any such penalty would be
based on disclosure of SGI in violation of an order imposing limits on
such disclosure. The commenter believes that it should be clear that
the criminal penalty provisions would not apply to violations of orders
of presiding officers that impose obligations or limitations other than
limitations imposed for the purpose of preventing disclosure of SGI to
unauthorized persons. The commenter suggests revising proposed
Sec. Sec. 2.336(f)(6), 2.705(c)(7), 2.709(f)(6) and 2.1010(b)(6)(vi)
to state, ``For the purpose of imposing the criminal penalties
contained in Section 223 of the Atomic Energy Act of 1954, as amended,
a limitation on the disclosure of Safeguards Information included in
any order issued pursuant to this paragraph is considered to be an
order issued under Section 161b of the Atomic Energy Act.''
Response: As with civil penalties, the Commission agrees that the
rule text should clearly state that application of criminal penalties
in Section 223 of the Act is limited to violations of those provisions
regarding the protection of SGI. However, as explained in the preceding
response, the rule text should be broader than suggested by the
commenter. Accordingly, Sec. 2.336(f)(6) has been modified to read:
``For the purpose of imposing the criminal penalties contained in
Section 223 of the Atomic Energy Act of 1954, as amended, a provision
for the protection of Safeguards Information from unauthorized
disclosure that is contained in an order issued pursuant to this
paragraph is considered to be issued under Section 161b of the Atomic
Energy Act of 1954, as amended.'' Conforming changes have also been
made to Sec. Sec. 2.705(c)(8) (2.705(c)(7) in the proposed rule),
2.709(f)(6), and 2.1010(b)(6)(vi).
Part 30: Rules of General Applicability to Domestic Licensing of
Byproduct Material.
Sections 30.32(j) and 30.34(j).
Comment: One commenter questions the clarity of the rule text in
proposed Sec. Sec. 30.32 (j) and 30.33(j) pertaining to the
applicability of the requirements in Sec. Sec. 73.21 and 73.23 to
byproduct material applicants and licensees. The commenter states that
he had difficulty determining whether his ``processes'' would be
subject to these regulations. The commenter also asserts that an
appendix should be created to specifically list the amounts of
byproduct material that would trigger the regulatory requirements. He
recommends revising Sec. Sec. 30.32(j) and 30.34(j) to refer to the
appendix for determining parties subject to the regulation. According
to the commenter, the same appendix could also be used to define the
RAMQC amounts in a separate table.
Response: The proposed rule (October 31, 2006; 71 FR 64050)
explains that Appendix I to 10 CFR part 73--''Category 1 and 2
Radioactive Materials,'' is a table of radionuclides and quantities
that establishes the ``quantities of concern'' referenced in the
proposed rule.\13\
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\13\ The table has been used to determine the types and
quantities of radioactive materials that warrant additional security
requirements, some of which have already been imposed by order.
---------------------------------------------------------------------------
In response to this comment, the Commission is adding the
definition of ``quantities of concern'' in Sec. 30.4. This definition
is identical to the definition of that term in the Sec. 73.2
definitions. The definition states that ``quantities of concern'' means
``the quantities of radionuclides meeting or exceeding the threshold
limits set forth in Table 1 of Appendix I of this part.'' (71 FR
64060). This change should assist licensees, applicants, and other
persons subject to part 30, to determine which of their activities are
subject to the SGI designation and protection requirements of part 73.
Part 73: Physical Protection of Plants and Materials.
Section 73.2 Definitions.
Comment: A commenter states that a definition is needed of the term
``safe havens'' as used in Sec. Sec. 73.22(a)(2)(iv) and
73.23(a)(2)(iii). The commenter recommends that the definition be
included in Sec. 73.2.
Response: A ``safe haven'' along a highway transportation route is
used for temporary refuge or emergency assistance. Safe havens should
be as
[[Page 63555]]
close to the highway as possible, easily accessible by the
transportation vehicle, controlled, and well-lighted. Examples of
possible ``safe havens'' include truck stops, rest areas, highway
patrol barracks, and weigh stations. Having explained this, the
Commission does not believe it necessary to include a definition of
``safe havens'' in the rule.
Comment: A commenter states that the definition of the term
``Safeguards Information'' in Sec. 73.2 is too broad, specifically
with reference to the phrase ``control and accounting procedures.'' The
commenter recommends changing the definition of SGI to delete the
reference to ``control and accounting procedures.'' According to the
commenter, there is no information in the proposed rule that provides
any ``qualifying details'' on that term. The commenter believes that
based solely on the proposed definition, the phrase ``control and
accounting procedures'' could be interpreted to be applicable to: (a)
The ``control procedures'' associated with the placement of special
nuclear material (SNM) in pools or other onsite spent fuel storage
facilities; and (b) accounting procedures regarding the quantity of SNM
maintained by a licensee. In the commenter's view, the NRC intent is
that information about the physical protection of SNM must be
controlled as SGI. The commenter also states that the NRC staff intends
power reactors to control SNM in accordance with American National
Standards Institute (ANSI) N15.8, Nuclear Material Control Systems for
Nuclear Power Plants. According to the commenter, as a national
standard, the ANSI document cannot be controlled as SGI. Also, the
commenter states the understanding that the NRC staff intends to
endorse the national standard in a Regulatory Guide for licensee use
and that licensees will use the standard to revise their site
procedures to comply with NRC guidance.
Response: In the revised proposed rule (October 31, 2006; 71 FR
64012) the Commission addressed a comment on the original proposed rule
(February 11, 2005; 70 FR 7196) regarding the meaning of the term
``control and accounting procedures,'' as applied to four specific
types of information. The Commission's response provided ``qualifying
details'' as to the meaning of the term by noting, among other things,
that the term does not encompass the four categories of information
specified in the comment, including the written directions for
transferring fuel between the fuel pool and the reactor. (71 FR 64012).
The Commission is providing the following additional information in
response to this comment. The terms ``material control and accounting''
have meaning with respect to the protection of special nuclear
material. ``Material control'' means the use of control and monitoring
measures to prevent or detect loss when it occurs or soon afterward.
``Material accounting'' is the use of statistical and accounting
measures to maintain knowledge of the quantities of SNM present in each
area of a facility. It includes the use of physical inventories and
material balances to verify the presence of material or to detect the
loss of material after it occurs, in particular, through theft. In the
definition of ``Safeguards Information'' in Sec. 73.2 in the final
rule, the term ``control and accounting procedures'' is linked to the
physical protection of special nuclear material ``in quantities
determined by the commission through order or regulations to be
significant to the public health and safety and the common defense or
security.''
Accounting procedures regarding the quantity of SNM maintained by a
licensee would not necessarily constitute SGI. However, when coupled
with other information, information containing the quantities of SNM
could be SGI and would be designated and handled as such. Because
Section 147 of the AEA authorizes the Commission to protect information
that specifically identifies the control and accounting procedures used
to protect special nuclear material, the Commission is not deleting
this term from the definitions of SGI in the regulations. The
information the commenter provides about the endorsement of an ANSI
standard in a regulatory guide for licensees use does not constitute a
basis for deleting the term ``control and accounting procedures'' from
the definition of SGI.
Section 73.21(a)(1).
Comment: According to a commenter, an order issued October 4, 2006
required USEC Inc. Lead Cascade Demonstration Facility and American
Centrifuge Plant to implement specific SGI-M requirements to ensure
proper handling and protection of SGI to avoid unauthorized disclosure.
The commenter states that Sec. 73.21(a)(1)(i) conflicts with the
previous order by requiring uranium enrichment facilities to modify
their protection strategy from SGI-M to SGI. This provision, in the
commenter's opinion, imposes an unnecessary regulatory burden without
providing commensurate benefit, and could result in the two facilities
being governed by different SGI handling requirements even though they
are located within the same physical boundary and will ultimately share
common infrastructure.
Response: An order issued on October 4, 2006, and published in the
Federal Register on October 24, 2006 (71 FR 62318), required the United
States Enrichment Corporation (USEC) to protect certain information
relating to its uranium enrichment test and demonstration facility
(Lead Cascade Facility). Specifically, the order required USEC and
other persons to employ the modified handling requirements for SGI-M
relating to the interim measures to enhance security at the Lead
Cascade Facility. As reflected in Sec. 73.21(a)(1), the Commission
later determined that the type of information described above should be
subject to the requirements for SGI. Interim security measures relating
to the other facility located onsite with the Lead Cascade Facility
(the American Centrifuge Plant) are also designated as SGI. Therefore,
there is no longer a discrepancy with respect to the information
protection requirements for the two facilities.
Radioactive Material in Quantities of Concern (RAMQC) Sections
73.21(a)(1)(ii) and 73.23.
Comment: Two commenters addressed implementation of SGI-M
requirements for the ``new'' Category 2 RAMQC specified in Table I-1,
``Quantities of Concern Thresholds.'' One commenter stated that the
SGI-M designation should not be applied to Category 2 materials for
industrial radiography and oil well logging facilities that routinely
ship material to temporary job sites on a daily basis. The commenter
asserted that requiring an SGI-M program for the routine transport of
sources used by those licensees would be unwieldy and almost impossible
to administer. The commenter recommended that the requirement for an
SGI-M program should be limited to the original regulatory intent, that
is, for the transportation of Category 1 sources.
According to another commenter, applying SGI-M handling
requirements to Category 2 radioactive materials quantities of concern
(Category 2 RAMQC) materials most likely will introduce the
requirements for SGI security to a wide set of organizations that have
little experience with these requirements. The commenter further
asserted that the introduction of SGI requirements may unintentionally
result in the disruption of treatment for patients, as shippers of
these materials may be intimidated by the new security regulations. In
this commenter's opinion, extending SGI-M requirements to new Category
2 RAMQC should await more discussions and understanding of
[[Page 63556]]
the impact this may have on commerce and specifically medical
radioactive material shipments. The commenter believes that the
capability of shippers to meet these requirements would certainly
benefit from Department of Homeland Security (DHS) initiatives in
progress, such as the Transportation Worker Identification Credential
(TWIC). Also, the commenter states that for the transportation of
Category 2 RAMQC, the proposed regulations would require segregation of
a portion of the shipping documents and a cover indicating that the
segregated portions contain SGI. This would add confusion to the
shipping documentation and could be counterproductive to security as it
will highlight information that may otherwise be dispersed throughout
the shipping documents.
The commenter asserts that shipment of RAMQC often requires the
coordination of multiple carriers and modes of transportation to
provide timely delivery. According to the commenter, it is unclear how
the originator of a RAMQC Category 2 will be able to assure that each
carrier meets the requirements to handle SGI-M. The commenter concludes
that the determination must be made at each step of the custody of such
RAMQC shipments, with the possible result being a shipment being
delayed or stopped from its intended destination.
Response: The Commission has determined that information relating
to the transportation of Category 2 RAMQC need not be protected as SGI-
M and may be shared on a ``need-to-know'' basis. The text in Sec. Sec.
73.21(a)(1)(ii) and 73.23 has been changed accordingly.
Sections 73.22(a)(1)(xii) and 73.23(a)(1)(x).
Comment: A commenter proposes that engineering and safety analyses
need to be linked to security just as the other items described in
proposed Sec. Sec. 73.22(a)(1) and 73.23(a)(1). Therefore, the
commenter concludes that Sec. Sec. 73.22(a)(1)(xii) and 73.23(a)(1)(x)
should be revised to state ``Engineering and safety analyses related to
physical protection,* * *''
Response: This change is not necessary because the limitation the
commenter seeks is already set forth in Sec. Sec. 73.22(a),
73.22(a)(1), 73.23(a) and 73.23(a)(1). In sum, these provisions specify
the relevant information as ``security-related'' or ``related to
physical protection.'' Therefore, it is not necessary to repeat that
language in Sec. Sec. 73.22(a)(1)(xii) and 73.23(a)(1)(x).
Sections 73.22(a)(2)(iv) and 73.23(a)(2)(iii).
Comment: A commenter urges that the reference to safe haven in
Sec. Sec. 73.22(a)(2)(iv) and 73.23(a)(2)(iii) be removed and a
separate paragraph added in Sec. Sec. 73.22(a)(2) and 73.23(a)(2)
which states ``safe havens identified along the transport route.''
Response: In response to this comment and in light of the
description of ``safe haven'' earlier in this Notice, the Commission is
modifying the language in Sec. Sec. 73.22(a)(2)(iv) and
73.23(a)(2)(iii) to read ``safe havens identified along the highway
transportation route.'' However, the Commission sees no reason to move
that language into separate paragraphs in Sec. Sec. 73.22(a)(2) and
73.23(a)(2).
Comment: A commenter notes that some States require a carrier of
radioactive materials to give advance notice to local law enforcement
prior to crossing the State border and at other times in transit. The
commenter interprets the wording of the proposed regulation to mean
that shippers could not use two-way radio or cellular phones currently
used to make these communications. In this commenter's view, developing
a secure alternative method of communication would be an unwarranted
burden on the licensees, carriers and local law enforcement. The
commenter believes that Sec. Sec. 73.22(a)(2)(iv) and 73.23(a)(2)(iii)
should be modified so in-route communications between transport
vehicles and local-law enforcement agencies need not be controlled as
SGI.
Response: The wording of the provisions cited above does not
prohibit shippers from using two-way radios or cellular phones to
communicate with local law enforcement during transit. Section
73.23(a)(2)(ii) states that ``[s]cheduling and itinerary information
used for the purpose of preplanning, coordination, and advance
notification may be shared with others and need not be designated as
Safeguards Information Modified-Handling.''
Sections 73.22(b)(2) and 73.23(b)(2).
Comment: A commenter asserts that the conditions for access to SGI
are unclear in this provision because of the phrase ``or other means
approved by the Commission.'' Therefore, the commenter concludes that
this phrase should be deleted from the regulation until the Commission
is prepared to give specific requirements, which should be given by
rule rather than regulatory guidance.
Response: The language in question is found in Sec. Sec.
73.22(b)(2) and 73.23(b)(2), which address, as a condition for access
to SGI, a finding that a person is trustworthy and reliable, based on a
background check or other means approved by the Commission. This
provision is consistent with the Commission's authority under Section
149 of the AEA to relieve, by rule, persons from the obligations
imposed by that section, under specified terms, conditions, and
periods, if the Commission finds that such action is consistent with
its obligations to promote the common defense and security and to
protect the health and safety of the public. Relying on that authority,
the Commission could, by rule, relieve persons from the criminal
history records check requirement included in a background check to
determine a person's trustworthiness and reliability for access to SGI.
If the Commission determines that a rule change would be useful to
specify means other than a criminal history records check for
establishing an individual's trustworthiness and reliability, a
rulemaking proceeding would be initiated.
However, notwithstanding the Commission's obligation to relieve
persons from criminal history records checks only by rule, the phrase
``other means approved by the Commission'' is intended to maintain
flexibility in modifying the other aspects of the background check for
unique circumstances. As it has learned from past experience, in some
limited circumstances, the Commission might have to impose additional
measures to the background check requirements to increase assurances of
trustworthiness and reliability. While in others, it may be appropriate
for the Commission to relax certain aspects of the background check.
Without such a relief provision built into the rule, the Commission
would not, absent a rulemaking, be able to make such deviations.
Section 73.22(c)(2).
Comment: A commenter requests deletion of the proposed requirement
that SGI must be stored in unmarked cabinets. The following bases are
offered for this request: Unmarked cabinets containing SGI would be
obvious because they would be the only locking GSA-approved cabinets in
the security organization area at the average power reactor site; such
a requirement would not permit the use of NRC-required brightly colored
mnemonic aids to verify that the SGI cabinet is locked; and any
visitors to the area are usually escorted so the risk is minimal.
Accordingly, the commenter concludes that Sec. 73.22(c)(2) should be
modified to delete the unmarked storage container requirement.
Response: The issue of marking storage cabinets to indicate the
presence of SGI was raised in a previous comment on the original
proposed rule. For the reasons stated in responding to
[[Page 63557]]
this comment on the original proposed rule (October 31, 2006; 71 FR
64020), the NRC is not adopting the change advocated. However, the
Commission notes that prohibiting that marking on such cabinets does
not, as the commenter asserts, preclude the use of ``brightly colored
mnemonic aids'' to indicate that the cabinet is locked.
Section 73.22(d)(1).
Comment: A commenter notes that the NRC did not ``adopt'' a
previous comment that the marking of SGI documents in the proposed rule
is too prescriptive. The commenter seeks revision of the rule to
clarify that a licensee has the flexibility to have the specified
information in Sec. 73.22(d)(1)(i)-(iii) on the top of the document,
whether that is the first page, a cover sheet or a binder cover of the
document. The commenter proposes, as an alternative, modifying the
regulation so documents produced prior to the implementation date of
the rule can be marked according to the requirements in the licensee's
SGI program at the time.
Response: This comment was previously made on the first proposed
rule and a response was provided (October 31, 2006; 71 FR 64020). The
commenter has not provided any new information in this comment to
warrant a change in the Commission's position. However, in the previous
response, the Commission noted that it ``does not expect that licensees
or applicants must go back and mark documents for which a cover sheet
was used for the required information instead of the first page of the
document as set forth in Sec. 73.22(d)(1).'' To that extent, the
Commission has adopted the alternative the commenter proposed.
Sections 73.22(g)(1) and 73.22(g)(2).
Comment: In one commenter's view, the provisions on the use of
various storage media when processing SGI on a computer and limitations
on computer locations are too restrictive. This commenter requests that
Sec. 73.22(g)(2) be modified to allow external storage media to be
used as long as the media are properly controlled and the removable
storage medium is locked away when not in use. Also, the commenter
recommends that the rule should allow computers used to process SGI to
be located in controlled access areas when unattended by a person
authorized access to SGI, as long as the computers have password
protection.
Response: In keeping with standard computer security practices and
in response to the above comment, the text in Sec. 73.22(g)(1) has
been changed to provide that SGI may be stored, processed, or produced
on a password protected stand-alone computer (or computer system). In
addition, the Commission modified Sec. 73.22(g)(2) to provide that
computers not located within an approved and lockable security storage
container must have removable storage media with a bootable operating
system. Corresponding changes are made throughout this section to
substitute ``storage media'' for ``storage medium.'' Thus, data may be
processed and saved on the same removable storage media. An additional
restriction was also added as Sec. 73.22(g)(4) (with a conforming
change to Sec. 73.23(g)(4)) to require that electronic systems used to
store, process, or produce Safeguards Information must be free of
recoverable Safeguards Information prior to being returned to
nonexclusive use.
Sections 73.22(h) and 73.23(h).
Comment: Several commenters recommend removing the ten-year review
requirement asserting that it would consume resources with no
commensurate benefit to public health and safety. One commenter states
that licensees currently review SGI documents as they are being used
for possible decontrol and that this process has been effective in
allowing licensees to make the appropriate determinations.
Another commenter makes more detailed assertions about the relative
costs and benefits of the ten-year review requirement. On the costs
side of the equation, the commenter states that according to a 2005 NEI
survey, power reactor sites have an average inventory of 2,293 SGI
documents, with another 235 being produced each year. In ten years'
time, the commenter believes there would first need to be a sort
through the accumulated 4,643 SGI designated documents to find the
2,293 SGI documents ten years or older, and then a review of these
2,293 documents for a decontrol determination. On the benefits side of
the equation, the commenter asserts that this review requirement would
not lead to greater public disclosure of documents because licensees,
unlike the public sector, have no obligation to publicly release
documents.
This commenter asserts that performing such a review is an error-
prone operation that could lead to second-guessing by NRC inspectors.
This commenter also asserts that the ten-year review could consume NRC
resources. The commenter believes that organizations would ask the NRC
to make decontrol determinations for many SGI-designated documents for
which the individual who made the original determination is
unavailable. Other individuals in the organization would not likely
make the decontrol determinations in these situations because of a
hesitancy to second guess the individuals who originally designated the
document as SGI.
Response: The Commission accepts the commenters' suggestion to
remove the ten-year review requirement from the rule because the review
would require an expenditure of resources not commensurate with the
benefits. As set forth in more detail below, the costs would include
cataloguing all SGI documents in a holder's inventory, reviewing a
portion of them for possible decontrol every ten years, and
communicating decontrol determinations to other holders of the
document. It should be noted that although cataloguing SGI-designated
documents would be necessary as a practical matter under the ten-year
review requirement, there exists no similar cataloguing requirement for
documents containing Classified National Security Information. For the
period 2008-2018, the estimated costs of the review would total $2.5
million dollars for all regulated entities.\14\
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\14\ Costs are in 2007 dollars assuming a 7% Discount Rate for
the period 2008-2018.
---------------------------------------------------------------------------
The benefits, however, are slight because there would be very few
documents decontrolled in the review process. As described in more
detail below, few SGI-designated documents ten years or older are in
current use, so not many would be reviewed. Of those that would be
reviewed, many would still be considered to contain SGI and would
therefore not be decontrolled. Even for the few SGI-designated
documents that would be decontrolled, there is no requirement for
licensees and other private entities to make those public. Some
decontrolled documents, however, might also be in the hands of the NRC,
which could make the documents public as long as the documents were not
otherwise withheld under Sec. 2.390. The few documents likely to be
made public by the review does not justify the expense.
However, the Commission is retaining the requirement, also in the
current rules, that SGI-designated documents no longer falling within
the SGI category have their SGI designations removed. This would mean
that users of SGI-designated documents that no longer meet the
definition of SGI would have to remove the designation. This
requirement applies to SGI documents of any age.
The ten-year review requirement is contained in the following three
sentences from proposed Sec. 73.22(h): ``Documents originally
containing Safeguards Information must be
[[Page 63558]]
removed from the Safeguards Information category at such time as the
information no longer meets the criteria contained in this part. A
review of such documents to make that determination shall be conducted
every ten years. Documents that are ten years or older and designated
as SGI or SGI-M shall be reviewed for a decontrol determination if they
are currently in use or removed from storage.'' A nearly identical
version of this requirement was in proposed Sec. 73.23(h).
The first sentence in proposed Sec. 73.22(h), which is being
retained in the final rule, generally requires the decontrol of SGI-
designated documents that no longer fit within the SGI category and is
substantially identical to the requirement in the prior version of
Sec. 73.21(i). The second and third sentences in proposed Sec.
73.22(h), which have not been retained in the final rule, would have
required holders of SGI to conduct a special review every ten years of
SGI-designated documents that are ten years or older and also in
current use. As a practical matter, complying with the ten-year review
requirement would have first involved the cataloguing of all SGI-
designated documents so that the documents could be located for the
review and so that it could have been determined which documents were
ten years or older at the time of the review. Then, at ten-year
intervals, the subset of SGI-designated documents ten years or older
and in current use would have been reviewed for a possible decontrol
determination. A smaller subset of these reviewed documents would then
have been decontrolled by the licensee. Some of these decontrolled
documents would also have been in the possession of other persons or
the NRC, and these other holders would have to have been informed about
the decontrol determination.
How such a process would proceed in practice can be illustrated
with the 64 power reactor sites covered by Sec. 73.22, using the
numbers referenced by one of the commenters. A 2005 NEI survey showed
that power reactor sites had an average of 2,293 SGI documents per site
and 235 were created each year.
Assuming that the first ten-year review would occur in 2008, there
would then be about 3,000 SGI documents at each site. All of these
documents would need to be catalogued. Only a portion of these would be
ten years old, however, and it is assumed that about half of the 2,293
documents were created since September 11, 2001, because of increased
security concerns. A reasonable estimate is that there will be about
900 SGI-designated documents per site that are ten years or older (that
is, created prior to 1998).
Of these 900, however, very few that are ten years or older would
likely be in current use, with a reasonable estimate being about 10
percent. With this estimate, only about 90 documents would make it to
the review process. Of these 90 documents in current use, the fact that
they are in current use makes it more likely that they still contain
SGI. Assuming that 20 percent of the reviewed documents are
decontrolled, only about 18 documents that were once designated as SGI
would be decontrolled. Assuming that the NRC possesses half of those
decontrolled documents, the 2008 review would result in possibly 9 SGI-
designated documents per power reactor site being made public.
In 2018, the second ten-year review would be conducted of SGI-
designated documents created prior to 2008. More documents will have
been added to the total inventory, but many will have been retired.
Assuming that very few documents 20 years or older are likely to exist,
the Commission believes that there could be as many as 2,300 SGI-
designated documents per power reactor site that are ten years or older
in 2018.\15\ Applying the assumptions used above yields 230 documents
requiring a review, with about 46 documents being decontrolled, and
with possibly 23 documents per site being made public on the NRC ADAMS
system. It must be noted that the number of documents projected as
being decontrolled by this process might be overstated because, prior
to the ten-year review, SGI-designated documents in current use would
be decontrolled if the user recognizes that the document no longer
contains SGI.
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\15\ It might be the case, however, that many of these 2300 SGI-
designated documents would be destroyed, pursuant to the
requirements of Sec. Sec. 73.22(i) and 73.23(i) in the final rule,
because they would be no longer needed.
---------------------------------------------------------------------------
On top of the initial task of cataloguing documents and the reviews
required every ten years, documents would have to be added to the
catalog as they were being created, which would be about 235 per year
for each power reactor site. This is another cost that must be
considered. Finally, one must consider costs to holders of SGI other
than the power reactors. These costs are relatively minor compared to
the 64 power reactor sites but are included in the calculations.
The numbers clearly show that cataloguing is the overwhelming
factor for costs because of the large number of documents involved. The
entire initial cataloguing cost for all entities is estimated to be
$1.6M dollars and the entire annual cataloguing cost is estimated at
$110K dollars. The entire cost of performing the 2008 review is
estimated to be $100K dollars, which includes review of the selected
documents, communication of decontrol determinations to other holders
of the decontrolled documents, and NRC action on these communications.
The entire cost of performing the 2018 review is estimated at $270K
dollars. To put the costs and benefits in perspective, useful measures
to look at are the cost per decontrolled document and the cost per
document possibly made public by the NRC. For power reactors as of the
2018 review, the estimated cost per decontrolled document is about $750
and the estimated cost per document possibly made public by the NRC is
about $1500.\16\ In light of the preceding analysis, the Commission
believes that the costs of performing this review do not justify the
benefits and is removing the ten-year review requirement from the rule.
---------------------------------------------------------------------------
\16\ It is appropriate to consider only power reactors here
because the overwhelming majority of SGI documents in the possession
of private entities are possessed by power reactors. Therefore,
power reactors bear the overwhelming majority of the review's costs.
---------------------------------------------------------------------------
A possible modification to the ten-year review requirement
involving a review every ten years of all SGI documents ten years or
older would also not justify retention. If the ten-year review
encompassed all SGI documents older than ten years, those in current
use as well as those that are not, the cataloguing costs would remain,
but the reviewing costs would increase because there would be
additional documents to review. It is true that with the review of more
SGI documents, potentially more SGI documents would be decontrolled,
but it is unclear how many such additional documents would actually be
reviewed. Many SGI documents no longer currently used would likely be
documents ``no longer needed,'' which are required to be destroyed
pursuant to final Sec. Sec. 73.22(i) and 73.23(i). This would probably
amount to roughly half of the SGI-designated documents ten years or
older.
Comment: A commenter asserts that it is impractical to have the NRC
approve the decontrol of documents generated by other agencies and that
sometimes the individual in an organization who made the original SGI
determination is unavailable. The commenter suggests that the proposed
text of Sec. Sec. 73.22(h) and 73.23(h) be modified to allow other
authorized individuals within the
[[Page 63559]]
organization that made the original SGI determination to decontrol the
document. Another commenter echoes this request.
Response: In response to these comments, the Commission is
clarifying the text in Sec. Sec. 73.22(h) and 73.23(h) to state that
the authority to determine that documents originally containing SGI
must be removed from the SGI category may be exercised by the NRC, with
the approval of the NRC, or in consultation with the individual or
organization that made the original determination.
Section 73.23.
Comment: A commenter asserts that for shipments of Category 1
materials, which are not routine, schedules and itineraries of a
shipment constitute information that, if disclosed, could reduce the
security of the shipment. For the more routine Category 2 RAMQC
shipments, the commenter states that it is not clear from the proposed
rule that relevant security information will accompany these shipments.
The commenter believes that the following statement from the proposed
rule in the discussion for Sec. 73.23 adds confusion to the issue:
``Scheduling and itinerary information used for the purpose of
preplanning, coordination and advance notification may be shared with
others on a `need to know' basis and need not be designated as
Safeguards Information-Modified Handling.'' (71 FR 64004, 64063;
October 31, 2006).
Response: It is not clear what the commenter means when referring
to ``relevant security information'' accompanying Category 2 RAMQC
shipments. The statement from the rule text which the commenter quotes
is consistent with the Commission's recent determination, discussed
earlier in this Notice, that information relating to the shipment of
Category 2 RAMQC need not be designated and controlled as SGI-M.
Rather, such information may be shared on a ``need -to-know'' basis.
Section 73.23(a).
Comment: A commenter requests that Sec. 73.23(a) be modified to
correspond to Sec. 73.22(a), which deleted the undefined terms
``additional security measures,'' ``protective measures'' and ``interim
compensatory measures.''
Response: The Commission agrees with this comment and has deleted
the terminology above from Sec. 73.23(a).
Section 73.59.
Comment: One commenter stated that Sec. 73.59 should be revised to
permit a licensee to recognize a background check conducted in
accordance with the final rule by another NRC or Agreement State
licensee. The commenter believes that this change would help allow a
licensee to sub-contract work to other licensees where it may be
necessary to divulge SGI to the contracted licensee in order for the
maintenance activity to be performed safely. The commenter's suggested
revision would state that an ``employee of an NRC or Agreement State
licensee who has undergone criminal history and background checks in
accordance with or equivalent to those required by 10 CFR 73.22(b) or
73.23(b).''
Response: Section 73.59 of the rule provides relief from the
fingerprinting and criminal history records check requirements set
forth in Section 149 of the AEA for limited categories of individuals
set forth in Sec. 73.59(1) through (9). Those categories of
individuals are considered to be trustworthy and reliable by virtue of
their occupational status and have either already undergone a
background check or criminal history records check as a condition of
their employment, or are subject to direct oversight by government
authorities in their day-to-day job functions. The categories of
individuals specified in Sec. 73.59 include governmental employees at
the federal, state or local level or certain NRC-certified
representatives of the International Atomic Energy Agency. In addition,
any agent, contractor, or consultant of those categories of individuals
is also exempt provided equivalent criminal history and background
checks to those required by Sec. Sec. 73.22(b) or 73.23(b) have been
performed. The Commission has determined not to adopt the language the
commenter has proposed to extend the exemption to an even broader
category of non-governmental individuals. However, a mechanism exists
in Sec. 73.57(f)(3) of the current regulations for the transfer to
another licensee of personal information obtained on an individual
obtained from a criminal history records check, provided the conditions
specified in paragraphs (f)(3)(i) and (ii) are met.
Comment: An Agreement State requests the NRC to continue its
``previous policy of exempting from its trustworthiness and reliability
reviews (and related fingerprinting and criminal history records
checks) those individuals designated by the Governor of a State as
needing access to SGI, regardless of whether those individuals are
State employees.'' According to the State, this exemption is allowed by
law and ``is a matter of respect and comity'' because ``the NRC should
* * * trust the duly elected Governor of a sovereign state to designate
only those individuals who may be trusted with access to SGI.''
Response: NRC regulations historically relieved licensees
authorized to operate power reactors from requiring specified
categories of individuals to undergo criminal history records checks
(including fingerprinting) for access to SGI. The exempt categories of
individuals included the ``Governor of a State, or his or her
designated representative.'' See, e.g., 10 CFR 73.57(b)(2)(ii).
Limiting the scope of the relief granted to the above category of
licensees reflected the narrow scope of NRC's previous statutory
authority under Section 149 of the AEA to require fingerprinting. The
EPAct amended Section 149 of the AEA to obligate the NRC to require
individuals or entities (including licensees or applicants for licenses
to engage in any activity subject to regulation by the Commission), to
fingerprint any individual seeking access to SGI. However, the EPAct
preserved NRC's authority under Section 149.b. of the AEA to relieve,
by rule, persons from the obligations imposed by Section 149, upon
specified terms, conditions, and periods, if the Commission makes
findings that such action is consistent with its obligations to promote
the common defense and security and to protect the health and safety of
the public. The NRC exercised that authority in a final rule that added
to part 73 a new Sec. 73.59, ``Relief from fingerprinting,
identification and criminal history records checks and other elements
of background checks for designated categories of individuals.'' Final
rule, Relief from Fingerprinting and Criminal History Records Check for
Designated Categories of Individuals (June 13, 2006; 71 FR 33989). The
rule was needed to enable the Commission to continue to share SGI with
certain categories of individuals seeking access to SGI from non-power
reactor licensees or from the Commission without subjecting them to the
expanded criminal history records checks required by the EPAct. (71 FR
33989). The rule continued the relief previously granted in Sec. Sec.
73.21 and 73.57, but expanded and lengthened the categories of
individuals relieved by the rule from the fingerprinting and criminal
history records checks. (71 FR 33989, 33990). In promulgating the rule,
the Commission specifically found the rule to be consistent with its
obligations to promote the common defense and security and to protect
the health and safety of the public. (71 FR at 33990).
Because trustworthiness and reliability determinations are based
upon background checks, the State's comments are relevant to Sec.
73.59. Section 73.59 exempts a number of categories of individuals from
the otherwise applicable background check
[[Page 63560]]
requirements for access to SGI, including criminal history records
checks (and fingerprinting). See proposed rule, Protection of
Safeguards Information (October 31, 2006; 71 FR 64004). The proposed
SGI rule added, as Sec. 73.59(k), a new category of exempt individuals
consisting of ``any agent, contractor, or consultant of the
aforementioned persons who has undergone equivalent criminal history
records and background checks to those required by 10 CFR 73.22(b) or
73.23(b).'' (71 FR at 64006). Another category of exempt individuals is
set forth in Sec. 73.59(e), for ``the Governor of a State or his or
her designated State employee representative.'' The rationale for this
category and other categories of exempt individuals is that the
individuals described in those categories ``are considered trustworthy
and reliable to receive SGI by virtue of their occupational status and
have either already undergone a background or criminal history check as
a condition of their employment, or are subject to direct oversight by
government authorities in their day-to-day job functions.'' (71 FR
33990). A Governor's designated State employee representative is
considered to be trustworthy and reliable because of the employee's
occupational status--reporting to and vouched for by the Governor and
the fact that the employee is subject to direct employment oversight by
a high-level government official in the employee's day-to-day job
functions. Under the exemption in former Sec. 73.57 for Governor-
designated representatives, a non-employee of a State would have been
exempt from the criminal history records check (including
fingerprinting). A non-employee would not necessarily have undergone a
criminal history records check as part of the background check. In
addition, the non-employee would not be subject to direct oversight by
high-level government authorities in that individual's day-to-day job
functions. Therefore, the Commission narrowed that specific exemption
to include only state employee representatives designated by a
Governor. The Commission is well within its authority under Section 149
of the AEA to so limit the specific exemption in Sec. 73.59(e).
Moreover, the State's comment does not account for the
applicability of the exemption in Sec. 73.59(k) for an agent,
contractor, or consultant of the categories of individuals specified in
Sec. 73.59 who have undergone effective criminal history records
checks as part of background checks. Thus, designated representatives
of a Governor meeting the equivalency provision would not have to
undergo a separate check prior to being granted access to SGI. Given
the availability of this exemption for individuals not included in
Sec. 73.59(e) and for the reasons set forth above, the Commission
declines to make the changes in the rule requested by the State.
Regulatory Analysis.
Comment: According to a commenter, the proposed rule incorrectly
states that the rule would be implemented in FY 2005 and 2006. Because
the commenter stated that the earliest it could be implemented is in FY
2007, the commenter concluded that the regulatory analysis is flawed
because it uses 2005 dollars.
Response: The Commission has modified the regulatory analysis to
state dollars as FY 2007 dollars.
Comment: A commenter asserts that the regulatory and backfit
analyses fail to calculate the substantial cost to power reactor
licensees for modifying their existing SGI process and adding the ten-
year review. The commenter asks that these analyses consider the actual
substantial cost of rule implementation regarding power reactor
licensee costs to modify SGI programs and the significant costs of the
ten-year review required by proposed Sec. 73.22(h), and suggests that
the rulemaking be delayed until accurate regulatory and backfit
analyses are completed.
Response: The Commission disagrees that the regulatory analysis
fails to calculate the cost to power reactors for modifying their
existing SGI programs. The cost for such modifications are reflected in
both the draft and final regulatory analyses. Additionally, the
regulatory analysis has been changed to account for the increased
number of power reactor applicants and to use power reactor costs for
power reactor applicants. There is no item in the regulatory analysis
reflecting the ten-year review requirement because this review
requirement is not being retained in the final rule. In the response to
comments on the ten-year review requirement, however, the Commission
provides a brief analysis of the costs and benefits of the ten-year
review in explaining its decision not to retain the requirement. As for
the backfit analysis requested by the commenter, the Commission has
determined in section XII of this document that a backfit analysis is
not required. As explained therein, the Commission has determined that
many of the requirements imposed by the final rule are not backfits.
Those requirements that are backfits have been determined to be
necessary to ensure that the facilities and materials described in the
final 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 Sec. Sec. 50.109(a)(3), 70.76, 72.62, and 76.76, do not
apply.
Comment: A commenter characterizes the NRC's regulatory and backfit
analyses as too qualitative in their assessments of the benefits
provided by the rule, and that the regulatory analysis should contain
quantitative evidence to support the conclusion that the benefits of
the rule outweigh the costs. The commenter believes that topics where
quantitative benefits analyses are desirable include (1) the added
safety benefits from requiring transporters of nuclear materials to
follow both DOT and NRC marking requirements and (2) how much of the
additional material protected under the final rule has been released to
the public because of the lack of the final rule's requirements. The
commenter asks that the rulemaking be delayed until accurate regulatory
and backfit analyses are completed.
Response: The Commission believes that it is appropriate to
describe the benefits of the rule in qualitative rather than
quantitative terms, and that further efforts to quantify the rule's
benefits in the Regulatory Analysis would be of little use and
potentially misleading. Qualitative discussion of the unquantifiable
values and impacts of a rule is expressly provided for in NUREG/BR-
0058, Revision 4, ``Regulatory Analysis Guidelines of the U.S. Nuclear
Regulatory Commission.'' \17\
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\17\ NUREG/BR-0058, Rev. 4, p. 24.
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Regarding the benefit of requiring transporters of nuclear
materials to follow both DOT and NRC marking requirements, the benefit
is the simple, but essential, one of informing holders of the document
which handling and disclosure requirements apply to the document. If a
document containing SGI, but only marked with DOT markings, were
transmitted to another individual, that individual would not know that
SGI requirements apply to the document. Because DOT and SGI
requirements differ, the recipient of the document containing SGI would
likely not comply with all of the SGI handling requirements. The
benefits of using NRC markings need not be quantified.
The Commission also does not consider it a useful measure to
quantify how much additional material protected under the rule has
historically been released to the public because of the
[[Page 63561]]
lack of the rule's requirements. First, a relatively small quantity of
SGI obtained by one determined individual for nefarious purposes could
be more dangerous than a larger quantity of material obtained by
several people with peaceful intentions. Second, the request misses the
point that security orders issued since September 11, 2001, have
imposed SGI protection requirements above and beyond those imposed by
the current rule. There is no recent experience with the current rule
as a baseline from which to make the requested calculation, even if
such a calculation produced a useful measure.
Finally, with respect to a quantitative analysis of benefits in a
backfit analysis, the Commission has determined that a backfit analysis
is not necessary for this rule, as explained in the response to the
previous comment.
B. Analysis of Changes Made in the Final Rule to the Text of the
Revised Proposed Rule
Change from ``criminal history check'' to ``criminal history
records check.''
Throughout the rule, references to ``criminal history check'' have
been revised to read ``criminal history records check.'' This change is
being made for consistency with Sec. 73.59, ``Relief from
fingerprinting, identification and criminal history records checks and
other elements of background checks for designated categories of
individuals.''
Analysis of part 2 changes to the proposed rule text.
Part 2 Authority citation.
The authority citation for part 2 is being updated from the version
in the revised proposed rule to cite Sections 147 and 149 of the AEA,
as amended, as opposed to just the EPAct amendment to Section 149, and
to correct a typo in the authority citation for Appendix A.
Renumbering of SGI-related provisions in Sec. 2.705.
Proposed Sec. 2.705(c)(2)-(c)(7), which contains SGI access
procedures for discovery in Subpart G adjudications, was misnumbered.
Proposed Sec. 2.705(c)(2)-(c)(7) will be moved to Sec. 2.705(c)(3)-
(c)(8) in the final rule, and Sec. 2.705(c)(2) in the current rules
will be retained in its current form.
Clarifying the scope of SGI access procedures for discovery in
adjudications.
Proposed Sec. Sec. 2.336(f), 2.705(c)(3)-(c)(8) (2.705(c)(2)-
(c)(7) in the revised proposed rule), 2.709(f), and 2.1010(b)(6)
contain SGI procedures for discovery in adjudications. There are other
areas of discovery in adjudications, however, that are not explicitly
covered by the proposed rule. Specifically, disclosures in subpart G
adjudications by parties other than the NRC staff are covered under
Sec. 2.704. To clarify the intent of the rule, a new Sec. 2.704(f) is
added, which reads as follows: ``Disclosure under this section of
documents and records including Safeguards Information referred to in
Sections 147 and 181 of the Atomic Energy Act of 1954, as amended, will
be according to the provisions in Sec. 2.705(c)(3)-(c)(8).'' Also,
Sec. 2.1010 in subpart J speaks only to the powers of the Pre-
Application Presiding Officer (PAPO), but there might be document
discovery in the High-Level Waste proceeding after the PAPO dissolves.
Therefore, a new Sec. 2.1018(h) is added with the following text:
``Discovery under this section of documentary material including
Safeguards Information referred to in Sections 147 and 181 of the
Atomic Energy Act of 1954, as amended, will be according to the
provisions in Sec. 2.1010(b)(6)(i)-(b)(6)(vi).''
Change from ``Chairman of the Atomic Safety and Licensing Board
Panel'' to ``Chief Administrative Judge.''
There are several instances in the revised proposed rule text in
which the term ``Chairman of the Atomic Safety and Licensing Board
Panel'' is used to refer to the head of the Atomic Safety and Licensing
Board Panel. The Commission has decided to change this term to ``Chief
Administrative Judge'' in the final rule to reflect the usage of Sec.
1.15. The change will be made in Sec. Sec. 2.336(f)(1)(iv),
2.705(c)(3)(iv), 2.709(f)(1)(iv), 2.1010(b)(6)(i)(D), and 73.57(e)(3).
Clarification of jurisdiction when a presiding officer has yet to
be appointed.
The term ``presiding officer'' is used throughout Sec. 2.336(f),
but there may be instances in which adjudicatory decisions related to
SGI need to be made prior to the designation of a presiding officer.
For instance, a person seeking participation in an adjudication may
desire access to SGI to proffer a contention but may be denied access
because of an adverse ``need to know'' or trustworthiness and
reliability determination. Disputes in such cases should be resolved as
quickly as possible and not await the appointment of a presiding
officer. To account for this situation, a new Sec. 2.336(f)(7) has
been added with the following text: ``If a presiding officer has yet to
be appointed, the authority to take the actions described in (f)(1) to
(f)(6) resides in the officer with jurisdiction under Sec. 2.318(a).''
Changes related to adverse trustworthiness and reliability
determinations in adjudications.
The Commission is changing proposed Sec. 2.336(f)(1)(ii)-(iii) to
clarify that the protections referred to therein are to be afforded
before a final adverse determination. After an adverse determination
becomes final, the appeal procedures in Sec. 2.336(f)(1)(iv) can be
used. Conforming changes have also been made to Sec. Sec.
2.705(c)(3)(ii)-(iii), 2.709(f)(1)(ii)-(iii), and 2.1010(b)(6)(i)(B)-
(C). With respect to the appeal procedures in Sec. 2.336(f)(1)(iv),
the rule has been modified to require designation of an officer other
than the presiding officer for review of final adverse determinations
in all instances, rather than leaving such matters to the discretion of
the Chief Administrative Judge. Conforming changes were also made to
Sec. Sec. 2.705(c)(3)(iv), 2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D).
The Commission is modifying Sec. 2.336(f)(1)(iii) by replacing the
last sentence in the revised proposed rule with more appropriate
language. The last sentence in the revised proposed rule states that
``before an adverse determination on an individual's background check
for trustworthiness and reliability, the individual shall be afforded
the protections provided by Sec. 73.57.'' The protections referred to
in Sec. 73.57(e)(1)-(2), however, apply only to criminal history
records checks, and proposed Sec. 2.336(f)(1)(ii) already references
those same protections specifically for criminal history records
checks.\18\ Therefore, the last sentence in Sec. 2.336(f)(1)(iii) is
superfluous when read in a literal manner, duplicating the effect of
the reference in Sec. 2.336(f)(1)(ii).
---------------------------------------------------------------------------
\18\ Although a background check is based upon a criminal
history records check, it is also based upon other elements, such as
employment history, education, and personal references.
---------------------------------------------------------------------------
The Commission, however, considers it proper to provide the
essential rights contained in Sec. 73.57(e)(1)-(2) for components of
the background check other than the criminal history records check. For
criminal history records checks, the essential rights provided by Sec.
73.57(e)(1)-(2) are (1) access to the criminal history record and (2)
the option within ten days to challenge the completeness and accuracy
of the information contained in that record by providing additional
information and/or explanation.
By analogy, the Commission believes that for components of the
background check other than the criminal history records check,
individuals subject to an adverse trustworthiness and reliability
[[Page 63562]]
determination should have access to the records that were considered in
the trustworthiness and reliability determination. These individuals
should also be able to provide additional information and/or an
explanation to the Office of Administration within ten days, and the
Office of Administration should promptly resolve the challenge
presented by the individual. Therefore, the last sentence in Sec.
2.336(f)(1)(iii) is being replaced with language that provides the
essential rights of Sec. 73.57 for components of the background check
other than the criminal history records check. Conforming changes are
also being made to Sec. Sec. 2.705(c)(3)(iii), 2.709(f)(1)(iii), and
2.1010(b)(6)(i)(C).
The Commission has decided to replace ``[p]articipants, potential
witnesses, and attorneys'' in proposed Sec. Sec. 2.336(f)(1)(iv),
2.705(c)(3)(iv), 2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D) with
``[i]ndividuals seeking access to Safeguards Information to participate
in an NRC adjudication.'' The proposed language did not cover
consulting experts who are not expected to be witnesses, and the word
``participant'' was not defined by the rule and may have caused
confusion. A similar change is also being made to Sec. 73.57(e)(3).
The language in the final rule better reflects Commission intent and
mirrors the language in Sec. Sec. 2.336(f)(1)(i), 2.705(c)(3)(i),
2.709(f)(1)(i), and 2.1010(b)(6)(i)(A).
In proposed Sec. 2.1010(b)(6)(i)(D) regarding review of adverse
trustworthiness and reliability determinations, instances of
``presiding officer'' have been changed to ``Pre-License Application
Presiding Officer.''
Clarification of presiding officer authority regarding protective
orders in adjudications.
Proposed Sec. 2.336(f)(2) would give the presiding officer the
authority to include in an order any protective terms and conditions as
may be necessary and appropriate to limit disclosure of SGI to parties,
interested governmental entities participating under Sec. 2.315(c),
and their qualified witnesses and counsel.
This list of individuals and entities, however, is not exhaustive
and does not adequately convey the intended coverage of Sec.
2.336(f)(2). See 71 FR 64029. Therefore, proposed Sec. 2.336(f)(2) has
been changed to the following: ``The presiding officer may include in
an order any protective terms and conditions (including affidavits of
nondisclosure) as may be necessary and appropriate to prevent the
unauthorized disclosure of Safeguards Information.'' Conforming changes
are also being made to Sec. Sec. 2.705(c)(4) (Sec. 2.705(c)(4) in the
revised proposed rule), 2.709(f)(2), and 2.1010(b)(6)(ii).
Changes regarding civil and criminal penalties.
Sections 2.336(f)(5), 2.705(c)(7), 2.709(f)(5) and 2.1010(b)(6)(v)
will be modified to clarify that a violation only of provisions for the
protection of SGI from unauthorized disclosure in an adjudicatory order
will be subject to civil penalties under Sec. 2.205. Similarly,
changes have also been made to sections 2.336(f)(6), 2.705(c)(8)
(2.705(c)(7) in the proposed rule), 2.709(f)(6), and 2.1010(b)(6)(vi),
to specify that criminal penalties are available only with respect to
violations of provisions in adjudicatory orders related to the
protection of SGI from unauthorized disclosure.
Clarification of the application of Sec. Sec. 73.21, 73.22, and
73.23 in adjudications.
The word ``participant'' in proposed Sec. 2.336(f)(3) is being
replaced in the final rule by ``anyone'' to better reflect the intent
of the rule (71 FR 64030), and to avoid using the word ``participant,''
which is not defined in the rule and may, therefore, cause confusion.
``Anyone'' in final Sec. 2.336(f)(3) should be interpreted in the
broadest manner. Conforming changes are also being made to Sec. Sec.
2.705(c)(5) (2.705(c)(4) in the revised proposed rule) and 2.709(f)(3).
Minor change in terminology.
The phrase ``delegate of the Executive Director for Operations'' in
Sec. 2.709(f)(1) will be changed to ``delegee of the Executive
Director for Operations'' to conform with the usage throughout the rest
of Sec. 2.709.
Section by section analysis of remaining changes to the proposed
rule text.
Section 30.4 Definitions.
A definition of ``quantities of concern'' is added, which is
identical to the definition of that term in parts 2 and 73. Defining
that term in part 30 will assist licensees, applicants, and other
persons subject to part 30 in determining the applicability to their
activities of the requirements for the protection of SGI in part 73.
Section 30.32 Application for specific licenses.
In paragraph (j), the references to Sec. Sec. 73.21 and 73.23 are
modified to read ``Sec. 73.21, 73.22, and/or 73.23, as applicable.''
This change correctly denotes the applicable sections of part 73
relating to a part 30 licensee's or applicant's protection against
unauthorized disclosure of SGI. In addition, the phrase ``subject to
the requirements of part 73 of this chapter'' is being deleted because
byproduct material licensees are not subject to part 73 other than
requirements relating to SGI.
Section 30.34 Terms and conditions of licenses.
In paragraph (j), the phrase deleted from 30.32(j) is also deleted
in this paragraph for the same reason.
Section 40.31 Application for specific licenses.
In paragraph (m), the words ``or conversion'' are added after
``production'' for a more complete statement of the type of facility to
which this requirement applies. Also, the phrase ``subject to the
requirements of part 73 of this chapter'' is being deleted because
applicants for source licenses are not otherwise subject to part 73.
Section 40.41 Terms and conditions of licenses.
In paragraph (h), the phrase ``subject to the requirements of part
73 of this chapter'' is being deleted because applicants for source
licenses are not otherwise subject to part 73.
Section 60.42 Conditions of license.
In paragraph (d), ``(Department of Energy)'' is added after
``licensee'' to clarify that the licensee is the Department of Energy.
Section 63.42 Conditions of license.
In paragraph (e), ``(Department of Energy)'' is added after
``licensee'' to clarify that the licensee is the Department of Energy.
Section 72.44 License conditions.
In paragraph (h), the phrase ``subject to the requirements of part
73 of this chapter'' is being deleted because the licenses under part
72 are only subject to the requirements in part 73 relating to the
protection of SGI.
Part 73 Authority citation.
The authority citation for part 73 is being updated from the
version in the proposed rule to reflect the correct citation of the
Energy Policy Act.
Part 73 Changes of Wide Applicability.
Throughout part 73, references to ``SGI'' have been changed to
``Safeguards Information'' and references to ``SGI-M'' have been
changed to ``Safeguards Information-Modified Handling.''
Also, throughout part 73, references to ``Safeguards Information-
Modified Handling'' have been changed to clarify that Safeguards
Information-Modified Handling is in fact Safeguards Information, but
subject to handling requirements modified from the specific Safeguards
Information handling requirements that are applicable to Safeguards
Information needing a higher level of protection.
Section 73.2 Definitions.
The definition of background check is changed to add a reference to
the
[[Page 63563]]
Federal Bureau of Investigation (FBI) criminal history records check.
This reference is necessary because the criminal history records check
is performed by the FBI. In addition, the parenthetical at the
beginning of the definition is being changed to read ``* * * (including
verification of identity based on fingerprinting) * * *.'' This is a
more complete statement of the elements of a criminal history records
check.
In the definition of ``need to know,'' the phrase ``incorporated
into another document by the recipient'' has been revised to include
``incorporated into another document or other matter by the
recipient.'' This revision reflects a change made for consistency
throughout the rule text (see, e.g., Sec. 73.22(a)(1)(vii)). The
definition is also revised to clarify that Safeguards Information
includes Safeguards Information designated as Safeguards Information--
Modified Handling.
The definition of Safeguards Information--Modified Handling is
revised to read ``the designation or marking applied to Safeguards
Information which the Commission has determined requires handling
requirements modified from the specific Safeguards Information handling
requirements that are applicable to Safeguards Information needing a
higher level of protection.'' The last phrase of the definition has
been added to reiterate the reason for the difference between the
handling requirements for SGI-M and those for other SGI.
The definition of ``Trustworthiness and reliability'' is
italicized. In addition, the last sentence of the definition is changed
to read ``A determination of trustworthiness and reliability for this
purpose is based upon a background check.'' This change is needed to
distinguish ``trustworthiness and reliability'' for the purpose of
access to SGI from ``trustworthiness and reliability'' for the purpose
of determining personnel access authorization requirements for nuclear
power plants under Sec. 73.56. The definition is also revised to
clarify that Safeguards Information includes Safeguards Information
designated as Safeguards Information--Modified Handling.
Section 73.21 Protection of Safeguards Information: Performance
Requirements.
In paragraph (a), a reference is added to a ``certificate holder''
as a person to whom the general performance requirement in Sec. 73.21
applies. These changes are needed for a complete statement of the
applicability of Sec. 73.21.
In paragraph (a)(i), the phrase ``uranium hexafluoride production
facilities'' is changed to read ``uranium hexafluoride production or
conversion facilities.'' This is a conforming change to that made in
Sec. 40.31.
In paragraph (a)(1)(ii), the phrase ``source, byproduct, or special
nuclear material in greater than or equal to Category 2 quantities of
concern * * *'' is changed to read ``source material, or byproduct or
special nuclear material in greater than or equal to Category 2
quantities of concern * * *.'' The reason for this change is to
accurately state the materials included in RAMQC. Also, the reference
to ``transportation of greater than or equal to Category 2 quantities
of concern'' is changed to ``transportation of source, byproduct, or
special nuclear material in greater than or equal to Category 1
quantities of concern.'' The Commission has determined that information
relating to the transportation of Category 2 RAMQC need not be
protected as SGI-M and may be shared on a ``need-to-know'' basis.
A new paragraph, (a)(iii), is added to Sec. 73.21, to state that
if the Safeguards Information is not described in paragraphs (a)(1)(i)
and (a)(1)(ii), it shall be protected in accordance with the
requirements of Sec. 73.22. Although paragraph (a) already requires
that each licensee, certificate holder, applicant, or other person who
produces, receives, or acquires SGI shall ensure that it is protected
against unauthorized disclosure, protecting SGI as SGI-M under Sec.
73.23 could potentially constitute a violation of the protection
requirements for SGI. Protecting the information, whether SGI or SGI-M,
under Sec. 73.22 would remove the potential for such a violation.
Section 73.22 Protection of Safeguards Information: Specific
Requirements.
The first paragraph of this section is changed to add the words
``or conversion'' after ``production'' for a more complete statement of
the type of facility to which this requirement applies. Also, a phrase
is added clarifying that the requirements of Sec. 73.22 apply to
persons subject to the requirements of Sec. 73.21(a)(1)(i). At the end
of the paragraph, the phrase ``and Safeguards Information in the hands
of any person subject to the requirements of Sec. 73.21(a)(1)(iii)''
is added as a cross-reference to the new paragraph in Sec.
73.21(a)(1)(iii) (requiring persons to follow the provisions of Sec.
73.22 in protecting Safeguards Information not described in paragraphs
(a)(1)(i) and (a)(1)(ii) of Sec. 73.21).
In paragraph (a)(1)(vii), the words ``or other matter'' are added
after ``identified in the documents.'' This change removes
inconsistencies in the proposed rule text with respect to terminology
for ``documents,'' or ``documents or other matter'' or ``documents or
other media.'' Unless otherwise noted, the term ``documents or other
matter'' will be used throughout the rule text.
The cross-reference in paragraph (a)(1)(xi) to ``Sec. 73.1'' is
being corrected to state ``Sec. 73.1(a)(1) or (a)(2).'' This change is
necessary because two ``Design Basis Threats'' (DBT) are described in
Sec. 73.1. Also, the reference to the adversary characteristics
document ``or other implementing guidance'' is changed to the adversary
characteristics document ``and related information, including
implementing guidance,'' to more clearly describe the documents to be
protected.
In response to a comment regarding the meaning of the term ``safe
havens'' in paragraph (a)(2)(iv), the following change to paragraph
(a)(2)(iv) is being made: ``* * * safe havens identified along the
transportation route.'' This change adds specificity to the term ``safe
havens.'' For the same reason, a conforming change is being made to
Sec. 73.23(a)(2)(iii).
In paragraph (b)(1), the acronym ``FBI'' is inserted after
``Federal Bureau of Investigation'' and the word ``records'' is
inserted following ``criminal history.'' These changes are needed for
the sake of accuracy. Conforming changes are being made to Sec.
73.23(b)(1).
In paragraph (b)(4), the phrase ``other than those specified in
Sec. 73.59,'' is being removed. This phrase would have excluded
persons identified in Sec. 73.59 from the process prescribed in the
paragraph for ``need to know'' determinations in adjudications. This
exclusion is being deleted because persons identified in Sec. 73.59
are exempt from elements of background checks, not from the ``need to
know'' requirement. Also, the process described in paragraph (b)(4)
applies just as well to persons identified in Sec. 73.59 as it does to
other persons, and the rule does not elsewhere prescribe a separate
process for ``need to know'' determinations for individuals identified
under Sec. 73.59. The same change is being made in Sec. 73.23(b)(4).
In paragraph (d)(2), language has been added to make clear that a
transmittal document without SGI can only be decontrolled if the
document does not otherwise warrant protection from unauthorized
disclosure. Conforming changes are being made in Sec. 73.23(d)(2).
[[Page 63564]]
The language in paragraph (f)(3) has been modified to specify that
the standard method for Internet e-mail encryption is Federal
Information Processing Standard [FIPS] 140-2, or later, that is
approved by the appropriate NRC Office.
In paragraph (g)(2), changes have been made to allow data to be
saved on ``either the removable storage medium that is used to boot the
operating system, or on a different removable storage medium.'' This
change provides more flexibility regarding the storage of SGI. However,
a new paragraph (g)(4) has been added to specify that any electronic
system that has been used for storage, processing or production of
Safeguards Information must be free of recoverable Safeguards
Information prior to being returned to nonexclusive use.
In response to comments, the second and third sentences of
paragraph (h), which require a review every ten years of documents ten
years or older that are in current use or out of storage, will not be
retained in the final rule. The Commission believes that the benefits
of the requirement would be outweighed by the costs, as explained in
more detail in the response to the comments in this document
recommending deletion of the requirement. For the same reason, a
conforming change is being made to Sec. 73.23(h).
Also, in the rule's provisions on the authority to decontrol
documents that have been designated as containing SGI, paragraph (h)
will be changed to make clear that SGI can be decontrolled by the NRC,
with NRC approval, or in consultation with the individual or
organization which made the initial determination. For the same reason,
a conforming change is being made to Sec. 73.23(h).
Section 73.23 Protection of Safeguards Information-Modified
Handling: Specific Requirements.
In the first paragraph of this section, a phrase is added
clarifying that the requirements of Sec. 73.23 apply to any person
subject to the requirements of Sec. 73.21(a)(1)(ii). Also, the
reference to ``transportation of greater than or equal to Category 2
quantities of concern'' is changed to ``transportation of source,
byproduct, or special nuclear material in greater than or equal to
Category 1 quantities of concern.'' The Commission has determined that
information relating to the transportation of Category 2 RAMQC need not
be protected as SGI-M and may be shared on a ``need-to-know'' basis.
For the same reason, a conforming change is being made to paragraph
(a)(2).
In paragraph (b)(3), the phrase ``exempt from the background check
requirements'' is changed to ``exempt from the criminal history records
check and background check requirements'' to clarify that the criminal
history records check is included in the exemption because it is part
of a background check.
In paragraph (f)(3), the phrase ``encryption * * * approved by''
has been modified as ``encryption by a method * * * approved by'' to
clarify that Federal Information Processing Standard [FIPS] 140-2 is a
method of encryption.
In paragraph (g)(1), the requirements for marking, removal and
storage of typewriter ribbons have been modified to add proper marking
of the ribbons. A new paragraph (g)(4) has been added to specify that
any electronic system that has been used for storage, processing or
production of Safeguards Information designated as Safeguards
Information-Modified Handling must be free of recoverable Safeguards
Information designated as Safeguards Information-Modified Handling
prior to being returned to nonexclusive use.
Section 73.57 Requirements for criminal history records checks of
individuals granted unescorted access to a nuclear power facility or
access to Safeguards Information.
In paragraph (b)(2)(i), the word ``or'' before the parenthetical is
being deleted because itis not needed.
In paragraph (e)(3), ``Chairman of the Atomic Safety and Licensing
Board Panel'' is being changed to ``Chief Administrative Judge,''
because the latter term is the correct one. Also, language has been
changed to provide that individuals seeking access to SGI to
participate in adjudications may request review of final adverse
trustworthiness and reliability determinations made by the NRC Office
of Administration.
Section 73.59 Relief from fingerprinting, identification and
criminal history records checks and other elements of background checks
for designated categories of individuals.
In the title and introductory paragraph of this section, the words
``other elements of'' are being inserted before ``background checks''
because criminal history records checks (comprised of fingerprinting,
verification of identity, and a review of criminal history records) are
part of a ``background check.'' Also, in the introductory paragraph and
in paragraph (f), ``Safeguards Information or Safeguards Information
designated as Safeguards Information-Modified Handling'' is revised to
read ``Safeguards Information, including Safeguards Information
designated as Safeguards Information-Modified Handling,'' to emphasize
that SGI-M is SGI.
Section 76.113 Formula quantities of strategic special nuclear
material--Category I.
In paragraph (c) of this section, the phrase ``and parts 25 and
95'' is being deleted because those parts are not applicable to SGI.
Section 76.115 Special nuclear material of moderate strategic
significance--Category II.
In paragraph (d), a sentence is being added to the end of this
paragraph to indicate that information designated by the U.S.
Department of Energy (DOE) as Unclassified Controlled Nuclear
Information must be protected in accordance with DOE requirements. This
requirement, also stated in Sec. 76.113, applies to Sec. 76.115.
Section 76.117 Special nuclear material of low strategic
significance--Category III.
In paragraph (c), a sentence is being added to the end of this
paragraph to indicate that information designated by the U.S.
Department of Energy (DOE) as Unclassified Controlled Nuclear
Information must be protected in accordance with DOE requirements. This
requirement, also stated in Sec. Sec. 76.113 and 76.115, applies to
Sec. 76.117.
V. Criminal Penalties
For the purpose of Section 223 of the Atomic Energy Act of 1954, as
amended (AEA), the Commission is amending 10 CFR parts 2, 30, 40, 50,
52, 60, 63, 70, 71, 72, 73, 76, and150 under one or more of Sections
147, 161b., 161i., or 161o. of the AEA. Willful violations of the rule
will be subject to criminal enforcement.
VI. Agreement State Issues
The rule 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. The Agreement State of
Utah presented four comments on the following issues related to
procedures applicable to SGI in adjudicatory contexts: (1) Whether
intervenors should be required to make designation determinations for
the SGI they create; (2) the extent to which the NRC staff should make
SGI decontrol determinations for intervenors; (3) how SGI procedures
relate to judicial appeals of NRC decisions; and (4) how ``need to
know'' determinations in an adjudicatory context should be made and
reviewed. The Agreement State of Nevada submitted four comments, one
dealing with a Sec. 73.59 exemption from
[[Page 63565]]
the background check requirement, and the other three dealing with
adjudicatory review of adverse trustworthiness and reliability
determinations by the NRC Office of Administration. These eight
comments, and the responses to them, can be found in the part 2 portion
of the comments in Section IV.A.2 of this document. Each of the
comments identifies that an agreement state was the submitter.
VII. Voluntary Consensus Standards
The National Technology Transfer Act of 1995 (Pub. L. 104-113),
requires that Federal agencies use technical standards that are
developed or adopted by voluntary consensus standards bodies unless the
use of such a standard is inconsistent with applicable law or otherwise
impractical. In this rule, the NRC is using the following Government-
unique standard: National Institute of Standards and Technology,
Federal Information Processing Standard [FIPS] PUB-140-2, ``Security
Requirements for Cryptographic Modules,'' May 25, 2001. The NRC has
determined that using this Government-unique standard is justified
because no voluntary consensus standard has been identified that could
be used instead. In addition, this Government-unique standard was
developed using the same procedures used to create a voluntary
consensus standard.
VIII. Finding of No Significant Impact: Environmental Assessment
The Commission has determined under the National Environmental
Policy Act of 1969, as amended, and the Commission's regulations in
subpart A of 10 CFR part 51, that this rule is not 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 rule relates to the
designation, handling and protection of SGI and the collection of
information on which a determination to grant individuals access to
this information is based. The determination of this environmental
assessment is that there will be no significant environmental impacts
from this action.
The NRC has sent a copy of the environmental assessment and the
revised proposed rule to every State Liaison Officer and requested
comments on the environmental assessment. No State provided comments on
the draft environmental assessment.
IX. Paperwork Reduction Act Statement
This final rule contains new or amended information collection
requirements that are subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). These requirements were approved by the
Office of Management and Budget, approval number 3150-0017; 0020; 0011;
0151; 0127; 0199; 0009; 0008; 0132; 0002; and 0032.
The burden to the public for these information collections is
estimated to average 10 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
information collection. Send comments on any aspect of these
information collections, including suggestions for reducing the burden,
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,
Office of Information and Regulatory Affairs, NEOB-10202, (3150-0017;
0020; 0011; 0151; 0127; 0199; 0009; 0008; 0132; 0002; and 0032), Office
of Management and Budget, Washington, DC 20503.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
X. Regulatory Analysis
The Commission has prepared a regulatory analysis on this final
rule. 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.
The regulatory analysis is also available electronically via the
Federal eRulemaking portal http://www.Regulations.gov, Docket number
NRC-2005-0001. Single copies of the analysis may be obtained from the
Office of the General Counsel, U.S. Nuclear Regulatory Commission, at
301-415-8350 or by e-mail at [email protected].
XI. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the NRC has determined that this rule, if adopted, will not
have a significant economic impact upon a substantial number of small
entities. The NRC estimates that the regulation will affect
approximately 152 NRC licensees, 87 Agreement State licensees, 200
state contacts, and 29 applicants for licenses. The NRC estimates that
small businesses as defined by 10 CFR 2.810 comprise less than 1
percent of the total number of NRC licensees and state contacts
affected by this regulation. The NRC does not have information on the
small business status of the Agreement State licensees or applicants
for NRC and Agreement State licenses affected by this regulation.
Therefore, in its February 11, 2005, and October 31, 2006, Federal
Register notices and the regulatory analyses for the proposed rules,
the NRC requested public comments on the impact of the proposed rules
on small businesses. No comments were received from entities
identifying themselves as ``small businesses'' meeting the criteria in
10 CFR 2.810, ``NRC size standards.'' In the absence of information on
the small business status of the Agreement State licensees and
applicants for NRC and Agreement State licenses affected by this
regulation, and based on the small proportion of NRC licensees that
qualify as small entities, the NRC estimates that the number of small
entities among these licensees is also less than 1 percent. For a small
entity, the implementation burden imposed by the regulation is
estimated to be 41.8 hours, and the annual burden is estimated to be
3.5 hours.
The potential benefits of preventing disclosure of SGI by
unauthorized persons significantly outweigh the economic impact on
small licensees.
XII. Backfit Analysis
The Commission has concluded, on the basis of the documented
evaluation in the regulatory analysis, that the majority of the
requirements in the 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 ensure that the facilities and
materials described in the rule provide adequate protection to the
public health and safety and are in accord with the common defense and
security, as applicable. Therefore, a backfit analysis is not required
and the cost-benefit standards of 10 CFR 50.109(a)(3), 70.76, 72.62,
and 76.76, do not apply. The documented evaluation in the regulatory
analysis includes a statement of the objectives of and the reasons for
the backfits that will be
[[Page 63566]]
required by the 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.
XIII. Congressional Review Act
In accordance with the Congressional Review Act, the NRC has
determined that this action is not a major rule and has verified this
determination with the Office of Information and Regulatory Affairs of
OMB.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 30
Byproduct material, Criminal penalties, Government contracts,
Intergovernmental relations, Isotopes, Nuclear materials, Radiation
protection, Reporting and recordkeeping requirements.
10 CFR Part 40
Criminal penalties, Government contracts, Hazardous materials
transportation, Nuclear materials, Reporting and recordkeeping
requirements, Source material, Uranium.
10 CFR Part 50
Antitrust, Classified information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.
10 CFR Part 52
Administrative practice and procedure, Backfitting, Combined
license, Early site permit, Emergency planning, Fees, Inspection,
Limited work authorization, Nuclear power plants and reactors,
Probabilistic risk assessment, Prototype, Reactor siting criteria,
Redress of site, Reporting and recordkeeping requirements, Standard
design, Standard design certification.
10 CFR Part 60
Criminal penalties, High-level waste, Nuclear materials, Nuclear
power plants and reactors, Reporting and recordkeeping requirements,
Waste treatment and disposal.
10 CFR Part 63
Criminal penalties, High-level waste, Nuclear power plants and
reactors, Reporting and recordkeeping requirements, Waste treatment and
disposal.
10 CFR Part 70
Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.
10 CFR Part 71
Criminal penalties, Hazardous materials transportation, Nuclear
materials, Packaging and containers, Reporting and recordkeeping
requirements.
10 CFR Part 72
Administrative practice and procedure, Criminal penalties, Manpower
training programs, Nuclear materials, Occupational safety and health,
Penalties, Radiation protection, Reporting and recordkeeping
requirements, Security measures, Spent fuel, Whistleblowing.
10 CFR Part 73
Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.
10 CFR Part 76
Certification, Criminal penalties, Radiation protection, Reporting
and record keeping requirements, Security measures, Special nuclear
material, Uranium enrichment by gaseous diffusion.
10 CFR Part 150
Criminal penalties, Hazardous materials transportation,
Intergovernmental relations, Nuclear materials, Reporting and
recordkeeping requirements, Security measures, Source material, Special
nuclear material.
0
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. 552 and 553; the NRC is adopting 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
0
1. The authority citation for part 2 is revised 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); sec. 147, as amended, 94 Stat. 788 (42 U.S.C. 2167); sec.
149, as amended, 100 Stat. 853 (42 U.S.C. 2169); 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, 2.321 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).
Section 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). Subpart C also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Section 2.301 also
issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712, also issued
under 5 U.S.C. 557. Section 2.340 also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 2.390 also issued under sec. 103, 68 Stat. 936, as amended
(42 U.S.C. 2133) and 5 U.S.C. 552. 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 2.800 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). Subpart N also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560,
84 Stat. 1472 (42 U.S.C. 2135).
0
2. In Sec. 2.4, a new definition for Safeguards Information is added
in alphabetical order to read as follows:
Sec. 2.4 Definitions.
* * * * *
Safeguards Information means information not classified as National
Security Information or Restricted Data
[[Page 63567]]
which specifically identifies a licensee's or applicant's detailed
control and accounting procedures for the physical protection of
special nuclear material in quantities determined by the Commission
through order or regulation to be significant to the public health and
safety or the common defense and security; detailed security measures
(including security plans, procedures, and equipment) for the physical
protection of source, byproduct, or special nuclear material in
quantities determined by the Commission through order or regulation to
be significant to the public health and safety or the common defense
and security; security measures for the physical protection and
location of certain plant equipment vital to the safety of production
or utilization facilities; and any other information within the scope
of Section 147 of the Atomic Energy Act of 1954, as amended, the
unauthorized disclosure of which, as determined by the Commission
through order or regulation, could reasonably be expected to have a
significant adverse effect on the health and safety of the public or
the common defense and security by significantly increasing the
likelihood of sabotage or theft or diversion of source, byproduct, or
special nuclear material.
* * * * *
0
3. In Sec. 2.336, paragraph (f) is redesignated as paragraph (g), and
a new paragraph (f) is added to read as follows:
Sec. 2.336 General discovery.
* * * * *
(f)(1) In the event of a dispute over disclosure of documents and
records including Safeguards Information referred to in Sections 147
and 181 of the Atomic Energy Act of 1954, as amended, the presiding
officer may issue an order requiring disclosure if--
(i) The presiding officer finds that the individual seeking access
to Safeguards Information to participate in an NRC adjudication has the
requisite ''need to know'', as defined in 10 CFR 73.2;
(ii) The individual has undergone an FBI criminal history records
check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as
applicable, by submitting fingerprints to the NRC Office of
Administration, Security Processing Unit, Mail Stop T-6E46, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise
following the procedures in 10 CFR 73.57(d) for submitting and
processing fingerprints. However, before a final adverse determination
by the NRC Office of Administration on an individual's criminal history
records check is made, the individual shall be afforded the protections
provided by 10 CFR 73.57; and
(iii) The NRC Office of Administration has found, based upon a
background check, that the individual is trustworthy and reliable,
unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable.
In addition to the protections provided by 10 CFR 73.57 for adverse
determinations based on criminal history records checks, the Office of
Administration must take the following actions before making a final
adverse determination on an individual's background check for
trustworthiness and reliability. The Office of Administration will:
(A) For the purpose of assuring correct and complete information,
provide to the individual any records, in addition to those required to
be provided under 10 CFR 73.57(e)(1), that were considered in the
trustworthiness and reliability determination;
(B) Resolve any challenge by the individual to the completeness or
accuracy of the records described in Sec. 2.336(f)(1)(iii)(A). The
individual may make this challenge by submitting information and/or an
explanation to the Office of Administration. The challenge must be
submitted within 10 days of the distribution of the records described
in Sec. 2.336(f)(1)(iii)(A), and the Office of Administration must
promptly resolve any challenge.
(iv) Individuals seeking access to Safeguards Information to
participate in an NRC adjudication for whom the NRC Office of
Administration has made a final adverse determination on
trustworthiness and reliability may submit a request to the Chief
Administrative Judge for review of the adverse determination. Upon
receiving such a request, the Chief Administrative Judge shall
designate an officer other than the presiding officer of the proceeding
to review the adverse determination. For purposes of review, the
adverse determination must be in writing and set forth the grounds for
the determination. The request for review shall be served on the NRC
staff and may include additional information for review by the
designated officer. The request must be filed within 15 days after
receipt of the adverse determination by the person against whom the
adverse determination has been made. Within 10 days of receipt of the
request for review and any additional information, the NRC staff will
file a response indicating whether the request and additional
information has caused the NRC Office of Administration to reverse its
adverse determination. The designated officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The designated officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(2) The presiding officer may include in an order any protective
terms and conditions (including affidavits of nondisclosure) as may be
necessary and appropriate to prevent the unauthorized disclosure of
Safeguards Information.
(3) When Safeguards Information protected from unauthorized
disclosure under Section 147 of the Atomic Energy Act of 1954, as
amended, is received and possessed by anyone other than the NRC staff,
it must also be protected according to the requirements of Sec. 73.21
and the requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
(4) The presiding officer may also prescribe additional procedures
to effectively safeguard and prevent disclosure of Safeguards
Information to unauthorized persons with minimum impairment of the
procedural rights which would be available if Safeguards Information
were not involved.
(5) In addition to any other sanction that may be imposed by the
presiding officer for violation of an order issued pursuant to this
paragraph, violation of a provision for the protection of Safeguards
Information from unauthorized disclosure that is contained in an order
may be subject to a civil penalty imposed under Sec. 2.205.
(6) For the purpose of imposing the criminal penalties contained in
Section 223 of the Atomic Energy Act of 1954, as amended, a provision
for the protection of Safeguards Information from unauthorized
disclosure that is contained in an order issued pursuant to this
paragraph is considered to be issued under Section 161b of the Atomic
Energy Act of 1954, as amended.
(7) If a presiding officer has yet to be appointed, the authority
to take the actions described in paragraphs (f)(1) to (f)(6) of this
section resides in the officer with jurisdiction under Sec. 2.318(a).
* * * * *
0
4. In Sec. 2.704, paragraph (f) is added to read as follows:
Sec. 2.704 Discovery--required disclosures.
* * * * *
(f) Disclosure under this section of documents and records
including
[[Page 63568]]
Safeguards Information referred to in Sections 147 and 181 of the
Atomic Energy Act of 1954, as amended, will be according to the
provisions in Sec. 2.705(c)(3) through (c)(8).
0
5. In Sec. 2.705, paragraphs (c)(3) through (8) are added to read as
follows:
Sec. 2.705 Discovery-additional methods.
* * * * *
(c) * * *
(3) In the case of documents and records including Safeguards
Information referred to in Sections 147 and 181 of the Atomic Energy
Act of 1954, as amended, the presiding officer may issue an order
requiring disclosure if--
(i) The presiding officer finds that the individual seeking access
to Safeguards Information in order to participate in an NRC proceeding
has the requisite ``need to know,'' as defined in 10 CFR 73.2;
(ii) The individual has undergone an FBI criminal history records
check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as
applicable, by submitting fingerprints to the NRC Office of
Administration, Security Processing Unit, Mail Stop T-6E46, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise
following the procedures in 10 CFR 73.57(d) for submitting and
processing fingerprints. However, before a final adverse determination
by the NRC Office of Administration on an individual's criminal history
records check is made, the individual shall be afforded the protections
provided by 10 CFR 73.57; and
(iii) The NRC Office of Administration has found, based upon a
background check, that the individual is trustworthy and reliable,
unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable.
In addition to the protections provided by 10 CFR 73.57 for adverse
determinations based on criminal history records checks, the Office of
Administration must take the following actions before making a final
adverse determination on an individual's background check for
trustworthiness and reliability. The Office of Administration will:
(A) For the purpose of assuring correct and complete information,
provide to the individual any records, in addition to those required to
be provided under 10 CFR 73.57(e)(1), that were considered in the
trustworthiness and reliability determination;
(B) Resolve any challenge by the individual to the completeness or
accuracy of the records described in Sec. 2.705(c)(3)(iii)(A). The
individual may make this challenge by submitting information and/or an
explanation to the Office of Administration. The challenge must be
submitted within 10 days of the distribution of the records described
in Sec. 2.705(c)(3)(iii)(A), and the Office of Administration must
promptly resolve any challenge.
(iv) Individuals seeking access to Safeguards Information to
participate in an NRC adjudication for whom the NRC Office of
Administration has made a final adverse determination on
trustworthiness and reliability may submit a request to the Chief
Administrative Judge for review of the adverse determination. Upon
receiving such a request, the Chief Administrative Judge shall
designate an officer other than the presiding officer of the proceeding
to review the adverse determination. For purposes of review, the
adverse determination must be in writing and set forth the grounds for
the determination. The request for review shall be served on the NRC
staff and may include additional information for review by the
designated officer. The request must be filed within 15 days after
receipt of the adverse determination by the person against whom the
adverse determination has been made. Within 10 days of receipt of the
request for review and any additional information, the NRC staff will
file a response indicating whether the request and additional
information has caused the NRC Office of Administration to reverse its
adverse determination. The designated officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The designated officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(4) The presiding officer may include in an order any protective
terms and conditions (including affidavits of nondisclosure) as may be
necessary and appropriate to prevent the unauthorized disclosure of
Safeguards Information.
(5) When Safeguards Information protected from unauthorized
disclosure under Section 147 of the Atomic Energy Act of 1954, as
amended, is received and possessed by anyone other than the NRC staff,
it must also be protected according to the requirements of Sec. 73.21
and the requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
(6) 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.
(7) 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 a provision for the protection of Safeguards
Information from unauthorized disclosure that is contained in an order
may be subject to a civil penalty imposed under Sec. 2.205.
(8) For the purpose of imposing the criminal penalties contained in
Section 223 of the Atomic Energy Act of 1954, as amended, a provision
for the protection of Safeguards Information from unauthorized
disclosure that is contained in an order issued pursuant to this
paragraph is considered to be issued under Section 161b of the Atomic
Energy Act of 1954, as amended.
* * * * *
0
6. In Sec. 2.709, paragraph (f) is revised to read as follows:
Sec. 2.709 Discovery against NRC staff.
* * * * *
(f)(1) In the case of requested documents and records including
Safeguards Information referred to in Sections 147 and 181 of the
Atomic Energy Act of 1954, as amended exempt from disclosure under
Sec. 2.390, the presiding officer may issue an order requiring
disclosure to the Executive Director for Operations or a delegee of the
Executive Director for Operations, to produce the documents or records
(or any other order issued ordering production of the document or
records) if--
(i) The presiding officer finds that the individual seeking access
to Safeguards Information to participate in an NRC adjudication has the
requisite ``need to know,'' as defined in 10 CFR 73.2;
(ii) The individual has undergone an FBI criminal history records
check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as
applicable, by submitting fingerprints to the NRC Office of
Administration, Security Processing Unit, Mail Stop T-6E46, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise
following the procedures in 10 CFR 73.57(d) for submitting and
processing fingerprints. However, before a final adverse determination
by the NRC Office of Administration on an individual's criminal history
records check is made, the individual shall be afforded the protections
provided by 10 CFR 73.57; and
(iii) The NRC Office of Administration has found, based upon a
background
[[Page 63569]]
check, that the individual is trustworthy and reliable, unless exempt
under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable. In addition to
the protections provided by 10 CFR 73.57 for adverse determinations
based on criminal history records checks, the Office of Administration
must take the following actions before making a final adverse
determination on an individual's background check for trustworthiness
and reliability. The Office of Administration will:
(A) For the purpose of assuring correct and complete information,
provide to the individual any records, in addition to those required to
be provided under 10 CFR 73.57(e)(1), that were considered in the
trustworthiness and reliability determination;
(B) Resolve any challenge by the individual to the completeness or
accuracy of the records described in Sec. 2.709(f)(1)(iii)(A). The
individual may make this challenge by submitting information and/or an
explanation to the Office of Administration. The challenge must be
submitted within 10 days of the distribution of the records described
in Sec. 2.709(f)(1)(iii)(A), and the Office of Administration must
promptly resolve any challenge.
(iv) Individuals seeking access to Safeguards Information to
participate in an NRC adjudication for whom the NRC Office of
Administration has made a final adverse determination on
trustworthiness and reliability may submit a request to the Chief
Administrative Judge for review of the adverse determination. Upon
receiving such a request, the Chief Administrative Judge shall
designate an officer other than the presiding officer of the proceeding
to review the adverse determination. For purposes of review, the
adverse determination must be in writing and set forth the grounds for
the determination. The request for review shall be served on the NRC
staff and may include additional information for review by the
designated officer. The request must be filed within 15 days after
receipt of the adverse determination by the person against whom the
adverse determination has been made. Within 10 days of receipt of the
request for review and any additional information, the NRC staff will
file a response indicating whether the request and additional
information has caused the NRC Office of Administration to reverse its
adverse determination. The designated officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The designated officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(2) The presiding officer may include in an order any protective
terms and conditions (including affidavits of nondisclosure) as may be
necessary and appropriate to prevent the unauthorized disclosure of
Safeguards Information.
(3) When Safeguards Information protected from disclosure under
Section 147 of the Atomic Energy Act of 1954, as amended, is received
and possessed by anyone other than the NRC staff, it must also be
protected according to the requirements of Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
(4) The presiding officer may also prescribe additional procedures
to effectively safeguard and prevent disclosure of Safeguards
Information to unauthorized persons with minimum impairment of the
procedural rights which would be available if Safeguards Information
were not involved.
(5) In addition to any other sanction that may be imposed by the
presiding officer for violation of an order issued pursuant to this
paragraph, violation of a provision for the protection of Safeguards
Information from unauthorized disclosure that is contained in an order
may be subject to a civil penalty imposed under Sec. 2.205.
(6) For the purpose of imposing the criminal penalties contained in
Section 223 of the Atomic Energy Act of 1954, as amended, a provision
for the protection of Safeguards Information from unauthorized
disclosure that is contained in an order issued pursuant to this
paragraph is considered to be issued under Section 161b of the Atomic
Energy Act of 1954, as amended.
* * * * *
0
7. 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.
* * * * *
0
8. In Sec. 2.1010, paragraph (b)(6) is revised to read as follows:
Sec. 2.1010 Pre-License application presiding officer.
* * * * *
(b) * * *
(6) Whether the material should be disclosed under a protective
order containing such protective terms and conditions (including
affidavits of nondisclosure) as may be necessary and appropriate to
limit the disclosure to potential parties, interested governmental
participants, and parties in the proceeding, or to their qualified
witnesses and counsel.
(i) The Pre-License Application Presiding Officer may issue an
order requiring disclosure of Safeguards Information if--
(A) The Pre-License Application Presiding Officer finds that the
individual seeking access to Safeguards Information in order to
participate in an NRC adjudication has the requisite ``need to know,''
as defined in 10 CFR 73.2;
(B) The individual has undergone an FBI criminal history records
check, unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as
applicable, by submitting fingerprints to the NRC Office of
Administration, Security Processing Unit, Mail Stop T-6E46, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, and otherwise
following the procedures in 10 CFR 73.57(d) for submitting and
processing fingerprints. However, before a final adverse determination
by the NRC Office of Administration on an individual's criminal history
records check is made, the individual shall be afforded the protections
provided by 10 CFR 73.57; and
(C) The NRC Office of Administration has found, based upon a
background check, that the individual is trustworthy and reliable,
unless exempt under 10 CFR 73.22(b)(3) or 73.23(b)(3), as applicable.
In addition to the protections provided by 10 CFR 73.57 for adverse
determinations based on criminal history records checks, the Office of
Administration must take the following actions before making a final
adverse determination on an individual's background check for
trustworthiness and reliability. The Office of Administration will:
(1) For the purpose of assuring correct and complete information,
provide to the individual any records, in addition to those required to
be provided under 10 CFR 73.57(e)(1), that were considered in the
trustworthiness and reliability determination;
(2) Resolve any challenge by the individual to the completeness or
accuracy of the records described in Sec. 2.1010(b)(6)(i)(C)(1). The
individual may make this challenge by submitting information and/or an
explanation to the Office of Administration. The
[[Page 63570]]
challenge must be submitted within 10 days of the distribution of the
records described in Sec. 2.1010(b)(6)(i)(C)(1), and the Office of
Administration must promptly resolve any challenge.
(D) Individuals seeking access to Safeguards Information to
participate in an NRC adjudication for whom the NRC Office of
Administration has made a final adverse determination on
trustworthiness and reliability may submit a request to the Chief
Administrative Judge for review of the adverse determination. Upon
receiving such a request, the Chief Administrative Judge shall
designate an officer other than the Pre-License Application Presiding
Officer to review the adverse determination. For purposes of review,
the adverse determination must be in writing and set forth the grounds
for the determination. The request for review shall be served on the
NRC staff and may include additional information for review by the
designated officer. The request must be filed within 15 days after
receipt of the adverse determination by the person against whom the
adverse determination has been made. Within 10 days of receipt of the
request for review and any additional information, the NRC staff will
file a response indicating whether the request and additional
information has caused the NRC Office of Administration to reverse its
adverse determination. The designated officer may reverse the Office of
Administration's final adverse determination only if the officer finds,
based on all the information submitted, that the adverse determination
constitutes an abuse of discretion. The designated officer's decision
must be rendered within 15 days after receipt of the staff filing
indicating that the request for review and additional information has
not changed the NRC Office of Administration's adverse determination.
(ii) The Pre-License Application Presiding Officer may include in
an order any protective terms and conditions (including affidavits of
nondisclosure) as may be necessary and appropriate to prevent the
unauthorized disclosure of Safeguards Information.
(iii) When Safeguards Information, protected from disclosure under
Section 147 of the Atomic Energy Act of 1954, as amended, is received
and possessed by a potential party, interested government participant,
or party, other than the NRC staff, it shall also be protected
according to the requirements of Sec. 73.21 and the requirements of
Sec. Sec. 73.22 or 73.23 of this chapter, as applicable.
(iv) The Pre-License Application Presiding Officer may also
prescribe such additional procedures as will effectively safeguard and
prevent disclosure of Safeguards Information to unauthorized persons
with minimum impairment of the procedural rights which would be
available if Safeguards Information were not involved.
(v) In addition to any other sanction that may be imposed by the
Pre-License Application Presiding Officer for violation of a provision
for the protection of Safeguards Information from unauthorized
disclosure that is contained in an order, the entity in violation may
be subject to a civil penalty imposed pursuant to Sec. 2.205.
(vi) For the purpose of imposing the criminal penalties contained
in Section 223 of the Atomic Energy Act of 1954, as amended, a
provision for the protection of Safeguards Information from
unauthorized disclosure that is contained in an order issued pursuant
to this paragraph is considered to be issued under Section 161b of the
Atomic Energy Act of 1954, as amended.
* * * * *
0
9. In Sec. 2.1018, paragraph (h) is added to read as follows:
Sec. 2.1018 Discovery.
* * * * *
(h) Discovery under this section of documentary material including
Safeguards Information referred to in Sections 147 and 181 of the
Atomic Energy Act of 1954, as amended, will be according to the
provisions in Sec. 2.1010(b)(6)(i) through (b)(6)(vi).
PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF
BYPRODUCT MATERIAL
0
10. The authority citation for part 30 is revised to read as follows:
Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948,
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note);
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 549 (2005).
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat.
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
0
11. In Sec. 30.4, a new definition ``Quantities of Concern'' is added
in alphabetical order to read as follows:
Sec. 30.4 Definitions.
* * * * *
Quantities of Concern means the quantities of the radionuclides
meeting or exceeding the threshold limits set forth in Table I-1 of
Appendix I of part 73 of this chapter.
* * * * *
0
12. In Sec. 30.32, paragraph (k) is added to read as follows:
Sec. 30.32 Application for specific licenses.
* * * * *
(k) Each applicant for a license for byproduct material shall
protect Safeguards Information against unauthorized disclosure in
accordance with the requirements in Sec. Sec. 73.21, 73.22 and/or
73.23 of this chapter, as applicable.
0
13. In Sec. 30.34, paragraph (k) is added to read as follows:
Sec. 30.34 Terms and conditions of licenses.
* * * * *
(k) Each licensee shall ensure that Safeguards Information is
protected against unauthorized disclosure in accordance with the
requirements in Sec. Sec. 73.21 and 73.23 of this chapter, as
applicable.
PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL
0
14. The authority citation for part 40 is revised to read as follows:
Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2),
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094,
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274,
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C.
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L.
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C.
2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy
Policy Act of 2005, Pub. L. No. 109-59, 119 Stat. 594 (2005).
Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec.
184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also
issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
0
15. In Sec. 40.31, paragraph (m) is added to read as follows:
Sec. 40.31 Application for specific licenses.
* * * * *
(m) Each applicant for a license for the possession of source
material at a facility for the production or conversion
[[Page 63571]]
of uranium hexafluoride shall protect Safeguards Information against
unauthorized disclosure in accordance with the requirements in
Sec. Sec. 73.21 and 73.22 of this chapter, as applicable. Each
applicant for a license for source material 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.
0
16. In Sec. 40.41, paragraph (h) is added to read as follows:
Sec. 40.41 Terms and conditions of licenses.
* * * * *
(h) Each licensee shall ensure that Safeguards Information is
protected against unauthorized disclosure in accordance with the
requirements in Sec. 73.21 and the requirements of Sec. 73.22 or
Sec. 73.23 of this chapter, as applicable.
PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
0
17. The authority citation for part 50 is revised to read as follows:
Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act
of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005). Section 50.7 also
issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C.
5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955,
as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103
also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C.
2138).
Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec.
185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and
Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853
(42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec.
204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and
50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C.
2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42
U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184, 68
Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).
0
18. In Sec. 50.34, the section heading and paragraph (e) are revised
to read as follows:
Sec. 50.34 Contents of applications; technical information.
* * * * *
0
(e) Each applicant for a license to operate a production or utilization
facility shall protect Safeguards Information against unauthorized
disclosure in accordance with the requirements in Sec. 73.21 and the
requirements in Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
* * * * *
0
19. In Sec. 50.54, paragraph (v) is revised to read as follows:
Sec. 50.54 Conditions of licenses.
* * * * *
(v) Each licensee subject to the requirements of Part 73 of this
chapter shall ensure that Safeguards Information is protected against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements in Sec. 73.22 or Sec. 73.23 of this
chapter, as applicable.
* * * * *
PART 52-LICENSES, CERTIFICATIONS, AND APPROVALS FOR NUCLEAR POWER
PLANTS
0
20. The authority citation for part 52 is revised to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84,
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42
U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub.
L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section
150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C.
2282).
0
21. In Sec. 52.17, paragraph (d) is added to read as follows:
Sec. 52.17 Contents of applications; technical information.
* * * * *
(d) Each applicant for an early site permit under this part shall
protect Safeguards Information against unauthorized disclosure in
accordance with the requirements in Sec. Sec. 73.21 and 73.22 of this
chapter, as applicable.
0
22. In Sec. 52.47, paragraph (d) is added to read as follows:
Sec. 52.47 Contents of applications; technical information.
* * * * *
(d) 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.
0
23. In Sec. 52.79, paragraph (f) is added to read as follows:
Sec. 52.79 Contents of application; technical information in final
safety analysis report.
* * * * *
(f) 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
0
24. The authority citation for part 60 is revised to read as follows:
Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071,
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2228, as amended (42 U.S.C. 10134, 10141), and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).
0
25. In Sec. 60.21, paragraph (d) is added to read as follows:
Sec. 60.21 Content of application.
* * * * *
(d) The applicant for a license to receive and possess source,
special nuclear, and byproduct material at a geologic repository
operations area sited, constructed, or operated in accordance with the
Nuclear Waste Policy Act of 1982 shall protect Safeguards Information
in accordance with the requirements in Sec. 73.21 and the requirements
in Sec. 73.22 or Sec. 73.23 of this chapter, as applicable, and shall
protect classified information in accordance with the requirements of
parts 25 and 95 of this chapter, as applicable.
0
26. In Sec. 60.42, paragraph (d) is added to read as follows:
Sec. 60.42 Conditions of license.
* * * * *
(d) The licensee (Department of Energy) shall ensure that
Safeguards Information is protected against unauthorized disclosure in
accordance with the requirements in Sec. 73.21 and the requirements in
Sec. 73.22 or Sec. 73.23 of this chapter, as applicable. The licensee
(Department of Energy) shall ensure that classified information is
protected in
[[Page 63572]]
accordance with the requirements of parts 25 and 95 of this chapter, as
applicable.
PART 63--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC
REPOSITORY AT YUCCA MOUNTAIN, NEVADA
0
27. The authority citation for part 63 is revised to read as follows:
Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071,
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2238, as amended (42 U.S.C. 10134, 10141), and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).
0
28. In Sec. 63.21, paragraph (d) is added to read as follows:
Sec. 63.21 Content of application.
* * * * *
(d) The applicant for a license to receive and possess source,
special nuclear, and byproduct material at a geologic repository at
Yucca Mountain, Nevada, shall protect Safeguards Information in
accordance with the requirements in Sec. 73.21, and the requirements
in Sec. 73.22, or Sec. 73.23 of this chapter, as applicable, and
shall protect classified information in accordance with the
requirements of parts 25 and 95 of this chapter, as applicable.
0
29. In Sec. 63.42, paragraph (e) is added to read as follows:
Sec. 63.42 Conditions of license.
* * * * *
(e) The licensee (Department of Energy) shall ensure that
Safeguards Information is protected against unauthorized disclosure in
accordance with the requirements in Sec. 73.21, and the requirements
in Sec. 73.22, or Sec. 73.23 of this chapter, as applicable, and
shall protect classified information in accordance with the
requirements of parts 25 and 95 of this chapter, as applicable.
PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL
0
30. The authority citation for part 70 is revised to read as follows:
Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, (42 U.S.C.
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended,
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).
Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec.
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42
U.S.C. 2234). Section 70.81 also issued under secs. 186, 187, 68
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.82 also issued under
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).
0
31. In Sec. 70.22, paragraph (l) is revised to read as follows:
Sec. 70.22 Contents of applications.
* * * * *
(l) Each applicant for a license shall protect Safeguards
Information against unauthorized disclosure in accordance with the
requirements in Sec. 73.21 and the requirements of Sec. 73.22, or
73.23 of this chapter, as applicable, and shall protect classified
information in accordance with the requirements of parts 25 and 95 of
this chapter, as applicable.
* * * * *
0
32. In Sec. 70.32, paragraph (j) is revised to read as follows:
Sec. 70.32 Conditions of licenses.
* * * * *
(j) Each licensee who possesses special nuclear material, or who
transports, or delivers to a carrier for transport, a formula quantity
of strategic special nuclear material, special nuclear material of
moderate strategic significance, or special nuclear material of low
strategic significance, or more than 100 grams of irradiated reactor
fuel shall ensure that Safeguards Information is protected against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements of Sec. 73.22 or Sec. 73.23 of this
chapter, as applicable, and shall protect classified information in
accordance with the requirements of parts 25 and 95 of this chapter, as
applicable.
* * * * *
PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL
0
33. The authority citation for part 71 is revised to read as follows:
Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat.
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201,
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242,
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
No. 109-58, 119 Stat. 594 (2005). Section 71.97 also issued under
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.
0
34. Section 71.11 is added to read as follows:
Sec. 71.11 Protection of Safeguards Information.
Each licensee, certificate holder, or applicant for a Certificate
of Compliance for a transportation package for transport of irradiated
reactor fuel, strategic special nuclear material, a critical mass of
special nuclear material, or byproduct material in quantities
determined by the Commission through order or regulation to be
significant to the public health and safety or the common defense and
security, shall protect Safeguards Information against unauthorized
disclosure in accordance with the requirements in Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF
SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-
RELATED GREATER THAN CLASS C WASTE
0
35. The authority citation for part 72 is revised to read as follows:
Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183,
184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953,
954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233,
2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat.
688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-
486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135,
137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148,
Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153,
10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C.
3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat.
549 (2005).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d),
Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b),
10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat.
955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42
U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub.
L. 100-203,
[[Page 63573]]
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).
0
36. In Sec. 72.22, paragraph (f) is added to read as follows:
Sec. 72.22 Contents of application: General and financial
information.
* * * * *
(f) Each applicant for a license under this part to receive,
transfer, and possess power reactor spent fuel, power reactor-related
Greater than Class C (GTCC) waste, and other radioactive materials
associated with spent fuel storage in an independent spent fuel storage
installation (ISFSI) shall protect Safeguards Information against
unauthorized disclosure in accordance with the requirements in Sec.
73.21 and the requirements of Sec. 73.22 or Sec. 73.23, as
applicable.
0
37. In Sec. 72.44, paragraph (h) is added to read as follows:
Sec. 72.44 License conditions.
* * * * *
(h) Each licensee 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.
0
38. In Sec. 72.212, paragraph (b)(5)(v) is redesignated as (b)(5)(vi)
and a new paragraph (b)(5)(v) is added to read as follows:
Sec. 72.212 Conditions of general license issued under Sec. 72.210.
* * * * *
(b) * * *
(5) * * *
(v) Each general licensee that receives and possesses power reactor
spent fuel and other radioactive materials associated with spent fuel
storage shall protect Safeguards Information against unauthorized
disclosure in accordance with the requirements of Sec. 73.21 and the
requirements of Sec. 73.22 or Sec. 73.23 of this chapter, as
applicable.
* * * * *
0
39. 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
0
40. The authority citation for part 73 continues to read as follows:
Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended,
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201,
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L.
109-58, 119 Stat. 594 (2005).
Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C, 10155, 10161). Section 73.37(f) also
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100
Stat. 876 (42 U.S.C. 2169).
0
41. 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 Safeguards Information with 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.
* * * * *
0
42. In Sec. 73.2, new definitions Background Check, Individual
Authorized Access to Safeguards Information, Individual Authorized
Access to Safeguards Information--Modified Handling, Quantities of
Concern, Safeguards Information--Modified Handling, and Trustworthiness
and Reliability, are added in alphabetical order and the definitions of
``Need to know'' and Safeguards Information are revised to read as
follows:
Sec. 73.2 Definitions.
* * * * *
Background check includes, at a minimum, a Federal Bureau of
Investigation (FBI) criminal history records check (including
verification of identity based on fingerprinting), employment history,
education, and personal references. Individuals engaged in activities
subject to regulation by the Commission, applicants for licenses to
engage in Commission-regulated activities, and individuals who have
notified the Commission in writing of an intent to file an application
for licensing, certification, permitting, or approval of a product or
activity subject to regulation by the Commission are required under
Sec. 73.57 to conduct fingerprinting and criminal history records
checks before granting access to Safeguards Information. A background
check must be sufficient to support the trustworthiness and reliability
determination so that the person performing the check and the
Commission have assurance that granting individuals access to
Safeguards Information does not constitute an unreasonable risk to the
public health and safety or the common defense and security.
* * * * *
Individual Authorized Access to Safeguards Information is an
individual authorized to have access to and handle such information
pursuant to the requirements of Sec. Sec. 73.21 and 73.22 of this
part.
Individual Authorized Access to Safeguards Information--Modified
Handling is an individual authorized to have access to and handle
Safeguards Information designated as Safeguards Information--Modified
Handling information pursuant to the requirements of Sec. Sec. 73.21
and 73.23 of this part.
* * * * *
``Need to know'' means a determination by a person having
responsibility for protecting Safeguards Information (including
Safeguards Information designated as Safeguards Information--Modified
Handling) that a proposed recipient's access to Safeguards Information
is necessary in the performance of official, contractual, licensee,
applicant, or certificate holder employment. In an adjudication, ``need
to know'' means a determination by the originator of the information
that the information is necessary to enable the proposed recipient to
proffer and/or adjudicate a specific contention in that proceeding, and
the proposed recipient of the specific Safeguards Information possesses
demonstrable knowledge, skill, training, or education to effectively
utilize the specific Safeguards Information in the proceeding. Where
the information is in the possession of the originator and the NRC
staff (dual possession), whether in its original form or incorporated
into another document or other matter by the recipient, the NRC staff
makes the determination. In the event of a dispute regarding the ``need
to know'' determination, the presiding officer of the proceeding shall
make the ``need to know'' determination.
* * * * *
[[Page 63574]]
Quantities of Concern means the quantities of the radionuclides
meeting or exceeding the threshold limits set forth in Table I-1 of
Appendix I of this part.
* * * * *
Safeguards Information means information not classified as National
Security Information or Restricted Data which specifically identifies a
licensee's or applicant's detailed control and accounting procedures
for the physical protection of special nuclear material in quantities
determined by the Commission through order or regulation to be
significant to the public health and safety or the common defense and
security; detailed security measures (including security plans,
procedures, and equipment) for the physical protection of source,
byproduct, or special nuclear material in quantities determined by the
Commission through order or regulation to be significant to the public
health and safety or the common defense and security; security measures
for the physical protection of and location of certain plant equipment
vital to the safety of production or utilization facilities; and any
other information within the scope of Section 147 of the Atomic Energy
Act of 1954, as amended, the unauthorized disclosure of which, as
determined by the Commission through order or regulation, could
reasonably be expected to have a significant adverse effect on the
health and safety of the public or the common defense and security by
significantly increasing the likelihood of sabotage or theft or
diversion of source, byproduct, or special nuclear material.
Safeguards Information--Modified Handling is the designation or
marking applied to Safeguards Information which the Commission has
determined requires handling requirements modified from the specific
Safeguards Information handling requirements that are applicable to
Safeguards Information needing a higher level of protection.
* * * * *
Trustworthiness and reliability are characteristics of an
individual considered dependable in judgment, character, and
performance, such that disclosure of Safeguards Information (including
Safeguards Information designated as Safeguards Information--Modified
Handling) to that individual does not constitute an unreasonable risk
to the public health and safety or common defense and security. A
determination of trustworthiness and reliability for this purpose is
based upon a background check.
* * * * *
0
43. Section 73.8(b) is revised to read as follows:
Sec. 73.8 Information collection requirements: OMB approval.
* * * * *
(b) The approved information collection requirements contained in
this part appear in Sec. Sec. 73.5, 73.20, 73.21, 73.22, 73.23, 73.24,
73.25, 73.26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 73.56,
73.57, 73.60, 73.67, 73.70, 73.71, 73.72, 73.73, 73.74, and appendices
B, C, and G.
* * * * *
0
44. 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, certificate
holder, applicant, or other person who produces, receives, or acquires
Safeguards Information (including Safeguards Information with the
designation or marking: Safeguards Information--Modified Handling)
shall ensure that it is protected against unauthorized disclosure. To
meet this general performance requirement, such licensees, certificate
holders, applicants, or other persons subject to this section shall:
(i) Establish, implement, and maintain an information protection
system that includes the applicable measures for Safeguards Information
specified in Sec. 73.22 related to: Power reactors; a formula quantity
of strategic special nuclear material; transportation of or delivery to
a carrier for transportation of a formula quantity of strategic special
nuclear material or more than 100 grams of irradiated reactor fuel;
uranium hexafluoride production or conversion facilities; fuel
fabrication facilities; uranium enrichment facilities; independent
spent fuel storage installations; and geologic repository operations
areas.
(ii) Establish, implement, and maintain an information protection
system that includes the applicable measures for Safeguards Information
specified in Sec. 73.23 related to: Panoramic and underwater
irradiators that possess greater than 370 TBq (10,000 Ci) of byproduct
material in the form of sealed sources; manufacturers and distributors
of items containing source material, or byproduct or special nuclear
material in greater than or equal to Category 2 quantities of concern;
research and test reactors that possess special nuclear material of
moderate strategic significance or special nuclear material of low
strategic significance; and transportation of source, byproduct, or
special nuclear material in greater than or equal to Category 1
quantities of concern.
(iii) Protect the information in accordance with the requirements
of Sec. 73.22 if the Safeguards Information is not described in
paragraphs (a)(1)(i) and (a)(1)(ii) of this section.
(2) Information protection procedures employed by Federal, State,
and local law enforcement agencies are presumed to meet the general
performance requirement in Sec. 73.21(a)(1).
(b) Commission Authority. (1) Pursuant to Section 147 of the Atomic
Energy Act of 1954, as amended, the Commission may impose, by order or
regulation, Safeguards Information protection requirements different
from or in addition to those specified in this Part on any person who
produces, receives, or acquires Safeguards Information.
(2) The Commission may require, by regulation or order, that
information within the scope of Section 147 of the Atomic Energy Act of
1954, as amended, related to facilities or materials not specifically
described in Sec. Sec. 73.21, 73.22 or 73.23 be protected under this
Part.
0
45. 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 in the hands of any person subject to the
requirements of Sec. 73.21(a)(1)(i) and related to power reactors; a
formula quantity of strategic special nuclear material; transportation
of or delivery to a carrier for transportation of a formula quantity of
strategic special nuclear material or more than 100 grams of irradiated
reactor fuel; uranium hexafluoride production or conversion facilities,
fuel fabrication facilities, and uranium enrichment facilities;
independent spent fuel storage installations; geologic repository
operations areas and Safeguards Information in the hands of any person
subject to the requirements of Sec. 73.21(a)(1)(iii).
(a) Information to be protected. The types of information and
documents that must be protected as Safeguards Information include non-
public security-related requirements such as:
(1) Physical Protection. Information not classified as Restricted
Data or National Security Information related to physical protection,
including:
(i) The composite physical security plan for the facility or site;
(ii) Site-specific drawings, diagrams, sketches, or maps that
substantially represent the final design features of the
[[Page 63575]]
physical security system not easily discernible by members of the
public;
(iii) Alarm system layouts showing the location of intrusion
detection devices, alarm assessment equipment, alarm system wiring,
emergency power sources for security equipment, and duress alarms not
easily discernible by members of the public;
(iv) Physical security orders and procedures issued by the licensee
for members of the security organization detailing duress codes, patrol
routes and schedules, or responses to security contingency events;
(v) Site-specific design features of plant security communications
systems;
(vi) Lock combinations, mechanical key design, or passwords
integral to the physical security system;
(vii) Documents and other matter that contain lists or locations of
certain safety-related equipment explicitly identified in the documents
or other matter as vital for purposes of physical protection, as
contained in security plans, contingency measures, or plant specific
safeguards analyses;
(viii) The composite safeguards contingency plan/measures for the
facility or site;
(ix) The composite facility guard qualification and training plan/
measures disclosing features of the physical security system or
response procedures;
(x) Information relating to on-site or off-site response forces,
including size, armament of response forces, and arrival times of such
forces committed to respond to security contingency events;
(xi) The adversary characteristics document and related
information, including implementing guidance associated with the Design
Basis Threat in Sec. 73.1(a)(1) or (a)(2); and
(xii) Engineering and safety analyses, security-related procedures
or scenarios, and other information revealing site-specific details of
the facility or materials if the unauthorized disclosure of such
analyses, procedures, scenarios, or other information could reasonably
be expected to have a significant adverse effect on the health and
safety of the public or the common defense and security by
significantly increasing the likelihood of theft, diversion, or
sabotage of source, byproduct, or special nuclear material.
(2) Physical protection in transit. Information not classified as
Restricted Data or National Security Information related to the
transportation of, or delivery to a carrier for transportation of a
formula quantity of strategic special nuclear material or more than 100
grams of irradiated reactor fuel, including:
(i) The composite physical security plan for transportation;
(ii) Schedules and itineraries for specific shipments of source
material, byproduct material, high-level nuclear waste, or irradiated
reactor fuel. Schedules for shipments of source material, byproduct
material, high-level nuclear waste, or irradiated reactor fuel are no
longer controlled as Safeguards Information 10 days after the last
shipment of a current series;
(iii) Vehicle immobilization features, intrusion alarm devices, and
communications systems;
(iv) Arrangements with and capabilities of local police response
forces, and locations of safe havens identified along the
transportation route;
(v) Limitations of communications during transport;
(vi) Procedures for response to security contingency events;
(vii) Information concerning the tactics and capabilities required
to defend against attempted sabotage, or theft and diversion of formula
quantities of special nuclear material, irradiated reactor fuel, or
related information; and
(viii) Engineering or safety analyses, security-related procedures
or scenarios and other information related to the protection of the
transported material if the unauthorized disclosure of such analyses,
procedures, scenarios, or other information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of source,
byproduct, or special nuclear material.
(3) Inspections, audits and evaluations. Information not classified
as National Security Information or Restricted Data pertaining to
safeguards and security inspections and reports, including:
(i) Portions of inspection reports, evaluations, audits, or
investigations that contain details of a licensee's or applicant's
physical security system or that disclose uncorrected defects,
weaknesses, or vulnerabilities in the system. Disclosure of corrected
defects, weaknesses, or vulnerabilities is subject to an assessment
taking into account such factors as trending analyses and the impacts
of disclosure on licensees having similar physical security systems;
and
(ii) Reports of investigations containing general information may
be released after corrective actions have been completed, unless
withheld pursuant to other authorities, e.g., the Freedom of
Information Act (5 U.S.C. 552).
(4) Correspondence. Portions of correspondence insofar as they
contain Safeguards Information as set forth in paragraphs (a)(1)
through (a)(3) of this section.
(5) Other information within the scope of Section 147 of the Atomic
Energy Act of 1954, as amended, that the Commission determines by order
or regulation could reasonably be expected to have a significant
adverse effect on the health and safety of the public or the common
defense and security by significantly increasing the likelihood of
theft, diversion, or sabotage of source, byproduct, or special nuclear
material or a facility.
(b) Conditions for access.
(1) Except as the Commission may otherwise authorize, no person may
have access to Safeguards Information unless the person has an
established ``need to know'' for the information and has undergone a
Federal Bureau of Investigation (FBI) criminal history records check
using the procedures set forth in Sec. 73.57.
(2) In addition, a person to be granted access to Safeguards
Information must be trustworthy and reliable, based on a background
check or other means approved by the Commission.
(3) The categories of individuals specified in 10 CFR 73.59 are
exempt from the criminal history records check and background check
requirements in paragraphs (b)(1) and (b)(2) of this section by virtue
of their occupational status.
(4) For persons participating in an NRC adjudicatory proceeding,
the ``need to know'' determination shall be made by the originator of
the Safeguards Information upon receipt of a request for access to the
Safeguards Information. Where the information is in the possession of
the originator and the NRC staff, whether in its original form or
incorporated into another document or other matter by the recipient,
the NRC staff shall make the determination. In the event of a dispute
regarding the ``need to know'' determination, the presiding officer of
the proceeding shall determine whether the ``need to know'' findings in
Sec. 73.2 can be made.
(5) Except as the Commission may otherwise authorize, no person may
disclose Safeguards Information to any other person except as set forth
in this section.
(c) Protection while in use or storage.
(1) While in use, matter containing Safeguards Information must be
under the control of an individual authorized access to Safeguards
Information. This requirement is satisfied if the
[[Page 63576]]
Safeguards Information is attended by such an individual even though
the information is in fact not constantly being used. Safeguards
Information within alarm stations, or rooms continuously occupied by
authorized individuals need not be stored in a locked security storage
container.
(2) While unattended, Safeguards Information must be stored in a
locked security storage container. The container shall not identify the
contents of the matter contained and must preclude access by
individuals not authorized access in accordance with the provisions of
this section. Knowledge of lock combinations protecting Safeguards
Information must be limited to a minimum number of personnel for
operating purposes who have a ``need to know'' and are otherwise
authorized access to Safeguards Information in accordance with the
provisions of this Part. Access to lock combinations must be strictly
controlled so as to prevent disclosure to an individual not authorized
access to Safeguards Information.
(d) Preparation and marking of documents or other matter.
(1) Each document or other matter that contains Safeguards
Information as described in Sec. 73.21(a)(1)(i) and this section must
be marked to indicate the presence of such information in a conspicuous
manner on the top and bottom of each page. The first page of the
document or other matter 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 or other matter contains Safeguards Information;
(ii) The date the determination was made; and
(iii) An indication that unauthorized disclosure will be subject to
civil and criminal sanctions.
(2) In addition to the markings at the top and bottom of each page,
any transmittal letters or memoranda to or from the NRC which do not in
themselves contain Safeguards Information shall be marked to indicate
that attachments or enclosures contain Safeguards Information but that
the transmittal document or other matter does not (i.e., ``When
separated from Safeguards Information enclosure(s), this document is
decontrolled provided the transmittal document does not otherwise
warrant protection from unauthorized disclosure'').
(3) Any transmittal document or other matter forwarding Safeguards
Information must alert the recipient that protected information is
enclosed. Certification that a document or other matter contains
Safeguards Information must include the name and title of the
certifying official and date designated. Portion marking is required
only for correspondence to and from the NRC (i.e., cover letters, but
not attachments) that contains Safeguards Information. The portion
marking must be sufficient to allow the recipient to identify and
distinguish those sections of the transmittal document or other
information containing the Safeguards Information from non-Safeguards
Information.
(4) Marking of documents or other matter containing or transmitting
Safeguards Information shall, at a minimum include the words
``Safeguards Information'' to ensure identification of protected
information for the protection of facilities and material covered by
Sec. 73.22.
(e) Reproduction of matter containing Safeguards Information.
Safeguards Information may be reproduced to the minimum extent
necessary consistent with need without permission of the originator.
Equipment used to reproduce Safeguards Information must be evaluated to
ensure that unauthorized individuals cannot access Safeguards
Information (e.g., unauthorized individuals cannot access Safeguards
Information by gaining access to retained memory or network
connectivity).
(f) External transmission of documents and material.
(1) Documents or other matter containing Safeguards Information,
when transmitted outside an authorized place of use or storage, must be
packaged in two sealed envelopes or wrappers to preclude disclosure of
the presence of protected information. The inner envelope or wrapper
must contain the name and address of the intended recipient and be
marked on both sides, top and bottom, with the words ``Safeguards
Information.'' The outer envelope or wrapper must be opaque, addressed
to the intended recipient, must contain the address of the sender, and
may not bear any markings or indication that the document or other
matter contains Safeguards Information.
(2) Safeguards Information may be transported by any commercial
delivery company that provides service with computer tracking features,
U.S. first class, registered, express, or certified mail, or by any
individual authorized access pursuant to these requirements.
(3) Except under emergency or extraordinary conditions, Safeguards
Information shall be transmitted outside an authorized place of use or
storage only by NRC approved secure electronic devices, such as
facsimiles or telephone devices, provided that transmitters and
receivers implement processes that will provide high assurance that
Safeguards Information is protected before and after the transmission
or electronic mail through the internet, provided that the information
is encrypted by a method (Federal Information Processing Standard
[FIPS] 140-2 or later) approved by the appropriate NRC Office; the
information is produced by a self contained secure automatic data
process system; and transmitters and receivers implement the
information handling processes that will provide high assurance that
Safeguards Information is protected before and after transmission.
Physical security events required to be reported pursuant to Sec.
73.71 are considered to be extraordinary conditions.
(g) Processing of Safeguards Information on electronic systems.
(1) Safeguards Information may be stored, processed or produced on
a stand-alone computer (or computer system) for processing of
Safeguards Information. ``Stand-alone'' means a computer or computer
system to which access is limited to individuals authorized access to
Safeguards Information. A stand-alone computer or computer system shall
not be physically or in any other way connected to a network accessible
by users who are not authorized access to Safeguards Information.
(2) Each computer not located within an approved and lockable
security storage container that is used to process Safeguards
Information must have a removable storage medium with a bootable
operating system. The bootable operating system must be used to load
and initialize the computer. The removable storage medium must also
contain the software application programs. Data may be saved on either
the removable storage medium that is used to boot the operating system,
or on a different removable storage medium. The removable storage
medium must be secured in a locked security storage container when not
in use.
(3) A mobile device (such as a laptop computer) may also be used
for the processing of Safeguards Information provided the device is
secured in a locked security storage container when not in use. Other
systems may be used if approved for security by the appropriate NRC
office.
(4) Any electronic system that has been used for storage,
processing or production of Safeguards Information must be free of
recoverable Safeguards Information prior to being returned to
nonexclusive use.
[[Page 63577]]
(h) Removal from Safeguards Information category. Documents or
other matter originally containing Safeguards Information must be
removed from the Safeguards Information category at such time as the
information no longer meets the criteria contained in this part. Care
must be exercised to ensure that any document or other matter
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 or other matter
may be decontrolled will only be exercised by the NRC, with NRC
approval, or in consultation with the individual or organization that
made the original determination.
(i) Destruction of matter containing Safeguards Information.
Documents or other matter containing Safeguards Information shall be
destroyed when no longer needed. The information can be destroyed by
burning, shredding or any other method that precludes reconstruction by
means available to the public at large. Piece sizes no wider than one
quarter inch composed of several pages or documents and thoroughly
mixed are considered completely destroyed.
0
46. 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 in the hands of any person subject to the
requirements of Sec. 73.21(a)(1)(ii) and related to panoramic and
underwater irradiators that possess greater than 370 TBq (10,000 Ci) of
byproduct material in the form of sealed sources; manufacturers and
distributors of items containing source material, or byproduct or
special nuclear material in greater than or equal to Category 2
quantities of concern; transportation of more than 1000 Tbq (27,000 Ci)
but less than or equal to 100 grams of spent nuclear fuel; research and
test reactors that possess special nuclear material of moderate
strategic significance or special nuclear material of low strategic
significance; and transportation of source, byproduct, or special
nuclear material in greater than or equal to Category 1 quantities of
concern. The requirements of this section distinguish Safeguards
Information requiring modified handling requirements (SGI-M) from the
specific Safeguards Information handling requirements applicable to
facilities and materials needing a higher level of protection, as set
forth in Sec. 73.22.
(a) Information to be protected. The types of information and
documents that must be protected as Safeguards Information--Modified
Handling include non-public security-related requirements such as
protective measures, interim compensatory measures, additional security
measures, and the following, as applicable:
(1) Physical Protection. Information not classified as Restricted
Data or National Security Information related to physical protection,
including:
(i) The composite physical security plan for the facility or site;
(ii) Site specific drawings, diagrams, sketches, or maps that
substantially represent the final design features of the physical
security system not easily discernible by members of the public;
(iii) Alarm system layouts showing the location of intrusion
detection devices, alarm assessment equipment, alarm system wiring,
emergency power sources for security equipment, and duress alarms not
easily discernible by members of the public;
(iv) Physical security orders and procedures issued by the licensee
for members of the security organization detailing duress codes, patrol
routes and schedules, or responses to security contingency events;
(v) Site specific design features of plant security communications
systems;
(vi) Lock combinations, mechanical key design, or passwords
integral to the physical security system;
(vii) The composite facility guard qualification and training plan/
measures disclosing features of the physical security system or
response procedures;
(viii) Descriptions of security activities which disclose features
of the physical security system or response measures;
(ix) Information relating to onsite or offsite response forces,
including size, armament of the response forces, and arrival times of
such forces committed to respond to security contingency events; and
(x) Engineering and safety analyses, security-related procedures or
scenarios, and other information revealing site-specific details of the
facility or materials if the unauthorized disclosure of such analyses,
procedures, scenarios, or other information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of source,
byproduct, or special nuclear material.
(2) Physical protection in transit. Information not classified as
Restricted Data or National Security Information related to the
physical protection of shipments of more than 1000 Tbq (27,000 Ci) but
less than or equal to 100 grams of spent nuclear fuel, source material
and byproduct material in Category 1 quantities of concern, and special
nuclear material in less than a formula quantity (except for those
materials covered under Sec. 73.22), including:
(i) Information regarding transportation security measures,
including physical security plans and procedures, immobilization
devices, and escort requirements, more detailed than NRC regulations;
(ii) Scheduling and itinerary information for shipments (scheduling
and itinerary information for shipments that are inherently self-
disclosing, such as a shipment that created extensive news coverage or
an announcement by a public official confirming receipt, may be
decontrolled after shipment departure). Scheduling and itinerary
information for shipments that are not inherently self-disclosing may
be decontrolled 2 days after the shipment is completed. Scheduling and
itinerary information used for the purpose of preplanning,
coordination, and advance notification may be shared with others on a
``need to know'' basis and need not be designated as Safeguards
Information-Modified Handling);
(iii) Arrangements with and capabilities of local police response
forces, and locations of safe havens identified along the
transportation route;
(iv) Details of alarm and communication systems, communication
procedures, and duress codes;
(v) Procedures for response to security contingency events; and
(vi) Engineering or safety analyses, security-related procedures or
scenarios and other information related to the protection of the
transported material if the unauthorized disclosure of such analyses,
procedures, scenarios, or other information could reasonably be
expected to have a significant adverse effect on the health and safety
of the public or the common defense and security by significantly
increasing the likelihood of theft, diversion, or sabotage of source,
byproduct, or special nuclear material.
(3) Inspections, audits and evaluations. Information not classified
as National Security Information or Restricted Data pertaining to
safeguards and security inspections and reports, including:
[[Page 63578]]
(i) Portions of inspection reports, evaluations, audits, or
investigations that contain details of a licensee's or applicant's
physical security system or that disclose uncorrected defects,
weaknesses, or vulnerabilities in the system. Disclosure of corrected
defects, weaknesses, or vulnerabilities is subject to an assessment
taking into account such factors as trending analyses and the impacts
of disclosure on licensees having similar physical security systems;
and
(ii) Reports of investigations containing general information may
be released after the corrective actions have been completed, unless
withheld pursuant to other authorities, e.g., the Freedom of
Information Act (5 U.S.C. 552).
(4) Correspondence. Portions of correspondence insofar as they
contain Safeguards Information designated as Safeguards Information-
Modified Handling, as set forth in paragraphs (a)(1) through (a)(3) of
this section.
(5) Other information within the scope of Section 147 of the Atomic
Energy Act of 1954, as amended, that the Commission determines by order
or regulation could reasonably be expected to have a significant
adverse effect on the health and safety of the public or the common
defense and security by significantly increasing the likelihood of
theft, diversion, or sabotage of source, byproduct, or special nuclear
material or a facility.
(b) Conditions for access.
(1) Except as the Commission may otherwise authorize, no person may
have access to Safeguards Information designated as Safeguards
Information-Modified Handling unless the person has an established
``need to know'' for the information and has undergone a Federal Bureau
of Investigation criminal history records check using the procedures
set forth in Sec. 73.57.
(2) In addition, a person to be granted access to Safeguards
Information must be trustworthy and reliable, based on a background
check or other means approved by the Commission.
(3) The categories of individuals specified in 10 CFR 73.59 are
exempt from the criminal history records check and background check
requirements in paragraphs (b)(1) and (b)(2) of this section by virtue
of their occupational status:
(4) For persons participating in an NRC adjudicatory proceeding,
the ``need to know'' determination shall be made by the originator of
the Safeguards Information designated as Safeguards Information-
Modified Handling upon receipt of a request for access to the
Safeguards Information designated as Safeguards Information-Modified
Handling. Where the information is in the possession of the originator
and the NRC staff, whether in its original form or incorporated into
another document or other matter by the recipient, the NRC staff shall
make the determination. In the event of a dispute regarding the ``need
to know'' determination, the presiding officer of the proceeding shall
determine whether the ``need to know'' findings in Sec. 73.2 can be
made.
(5) Except as the Commission may otherwise authorize, no person may
disclose Safeguards Information designated as Safeguards Information-
Modified Handling to any other person except as set forth in this
section.
(c) Protection while in use or storage.
(1) While in use, matter containing Safeguards Information
designated as Safeguards Information-Modified Handling must be under
the control of an individual authorized access to such information.
This requirement is satisfied if the Safeguards Information designated
as Safeguards Information-Modified Handling is attended by such an
individual even though the information is in fact not constantly being
used. Safeguards Information designated as Safeguards Information-
Modified Handling within alarm stations, or rooms continuously occupied
by authorized individuals, need not be locked in a file drawer or
cabinet.
(2) While unattended, Safeguards Information designated as
Safeguards Information-Modified Handling must be stored in a locked
file drawer or cabinet. The container shall not identify the contents
of the matter contained and must preclude access by individuals not
authorized access in accordance with the provisions of this section.
Knowledge of lock combinations or access to keys protecting Safeguards
Information designated as Safeguards Information-Modified Handling must
be limited to a minimum number of personnel for operating purposes who
have a ``need to know'' and are otherwise authorized access to
Safeguards Information in accordance with the provisions of this Part.
Access to lock combinations must be strictly controlled so as to
prevent disclosure to an individual not authorized access to Safeguards
Information designated as Safeguards Information-Modified Handling.
(d) Preparation and marking of documents or other matter.
(1) Each document or other matter that contains Safeguards
Information designated as Safeguards Information-Modified Handling as
described in Sec. 73.23(a) and in this section must be marked to
indicate the presence of Safeguards Information with modified handling
requirements in a conspicuous manner on the top and bottom of each
page. The first page of the document or other matter must also contain:
(i) The name, title, and organization of the individual authorized
to make a ``Safeguards Information designated as Safeguards
Information-Modified Handling'' determination, and who has determined
that the document or other matter contains Safeguards Information
designated as Safeguards Information-Modified Handling;
(ii) The date the determination was made; and
(iii) An indication that unauthorized disclosure will be subject to
civil and criminal sanctions.
(2) In addition to the markings at the top and bottom of each page,
any transmittal letters or memoranda to or from the NRC which do not in
themselves contain Safeguards Information designated as Safeguards
Information-Modified Handling shall be marked to indicate that
attachments or enclosures contain Safeguards Information designated as
Safeguards Information-Modified Handling but that the transmittal
document does not (i.e., ``When separated from Safeguards Information
designated as Safeguards Information-Modified Handling enclosure(s),
this document is decontrolled provided the transmittal document does
not otherwise warrant protection from unauthorized disclosure'').
(3) Any transmittal document or other matter forwarding Safeguards
Information designated as Safeguards Information-Modified Handling must
alert the recipient that protected information is enclosed.
Certification that a document or other matter contains Safeguards
Information designated as Safeguards Information-Modified Handling must
include the name and title of the certifying official and date
designated. Portion marking is required only for correspondence to and
from the NRC (i.e., cover letters, but not attachments) that contains
Safeguards Information designated as Safeguards Information-Modified
Handling. The portion marking must be sufficient to allow the recipient
to identify and distinguish those sections of the transmittal document
or other information containing the Safeguards Information from non-
Safeguards Information.
(4) Marking of documents or other matter containing or transmitting
Safeguards Information with modified handling requirements shall, at a
minimum include the words
[[Page 63579]]
``Safeguards Information-Modified Handling'' to ensure identification
of protected information for the protection of facilities and material
covered by Sec. 73.23.
(e) Reproduction of matter containing Safeguards Information
designated as Safeguards Information-Modified Handling. Safeguards
Information designated as Safeguards Information-Modified Handling may
be reproduced to the minimum extent necessary, consistent with need,
without permission of the originator. Equipment used to reproduce
Safeguards Information designated as Safeguards Information-Modified
Handling must be evaluated to ensure that unauthorized individuals
cannot access the information (e.g. , unauthorized individuals cannot
access Safeguards Information by gaining access to retained memory or
network connectivity).
(f) External transmission of documents and material.
(1) Documents or other matter containing Safeguards Information
designated as Safeguards Information-Modified Handling, when
transmitted outside an authorized place of use or storage, must be
packaged in two sealed envelopes or wrappers to preclude disclosure of
the presence of protected information. The inner envelope or wrapper
must contain the name and address of the intended recipient and be
marked on both sides, top and bottom, with the words ``Safeguards
Information-Modified Handling.'' The outer envelope or wrapper must be
opaque, addressed to the intended recipient, must contain the address
of the sender, and may not bear any markings or indication that the
document contains Safeguards Information designated as Safeguards
Information-Modified Handling.
(2) Safeguards Information designated Safeguards Information-
Modified Handling may be transported by any commercial delivery company
that provides service with computer tracking features, U.S. first
class, registered, express, or certified mail, or by any individual
authorized access pursuant to these requirements.
(3) Except under emergency or extraordinary conditions, Safeguards
Information designated as Safeguards Information-Modified Handling must
be transmitted electronically only by protected telecommunications
circuits (including facsimile) or encryption by a method (Federal
Information Processing Standard [FIPS] 140-2 or later) approved by the
appropriate NRC office. For the purpose of this section, emergency or
extraordinary conditions are defined as any circumstances that require
immediate communications in order to report, summon assistance for, or
respond to a security contingency event or an event that has potential
security significance. Physical security events required to be reported
pursuant to Sec. 73.71 are considered to be extraordinary conditions.
(g) Processing of Safeguards Information-Modified Handling on
electronic systems.
(1) Safeguards Information designated for modified handling may be
stored, processed or produced on a computer or computer system,
provided that the system is assigned to the licensee's or contractor's
facility. Safeguards Information designated as Safeguards Information-
Modified Handling files must be protected, either by a password or
encryption, to prevent unauthorized individuals from gaining access.
Word processors such as typewriters are not subject to these
requirements as long as they do not transmit information off-site.
Note: if Safeguards Information designated as Safeguards Information-
Modified Handling is produced on a typewriter, the ribbon must be
properly marked and be removed and stored in the same manner as other
Safeguards Information designated as Safeguards Information-Modified
Handling.
(2) Safeguards Information designated as Safeguards Information-
Modified Handling files may be transmitted over a network if the file
is encrypted. In such cases, the licensee will select a commercially
available encryption system that the National Institute of Standards
and Technology (NIST) has validated as conforming to Federal
Information Processing Standards (FIPS) 140-2 or later. Safeguards
Information designated as Safeguards Information-Modified Handling
files shall be properly labeled to indicate the presence of Safeguards
Information with modified handling requirements and saved to removable
matter and stored in a locked file drawer or cabinet.
(3) A mobile device (such as a laptop computer) may also be used
for the processing of Safeguards Information designated as Safeguards
Information-Modified Handling provided the device is secured in an
appropriate locked storage container when not in use. Other systems may
be used if approved for security by the appropriate NRC office.
(4) Any electronic system that has been used for storage,
processing or production of Safeguards Information must be free of
recoverable Safeguards Information designated as Safeguards
Information-Modified Handling prior to being returned to nonexclusive
use.
(h) Removal from Safeguards Information-Modified Handling category.
Documents or other matter originally containing Safeguards Information
designated as Safeguards Information-Modified Handling must be removed
from the Safeguards Information category at such time as the
information no longer meets the criteria contained in this Part. Care
must be exercised to ensure that any document or other matter
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 or
other matter may be decontrolled will only be exercised by the NRC,
with NRC approval, or in consultation with the individual or
organization that made the original determination.
(i) Destruction of matter containing Safeguards Information
designated as Safeguards Information-Modified Handling. Documents or
other matter containing Safeguards Information shall be destroyed when
no longer needed. The information can be destroyed by burning,
shredding, or any other method that precludes reconstruction by means
available to the public at large. Piece sizes no wider than one quarter
inch composed of several pages or documents and thoroughly mixed are
considered completely destroyed.
0
47. In Sec. 73.37, paragraphs (f)(2)(iv), (f)(3)(iii) and (iv), and
(g) are revised as follows:
Sec. 73.37 Requirement for the physical protection of irradiated
reactor fuel in transit.
* * * * *
(f) * * *
(2) * * *
(iv) A statement that the information described below in Sec.
73.37(f)(3) is required by NRC regulations to be protected in
accordance with the requirements of Sec. Sec. 73.21 and 73.22.
(3) * * *
(iii) For the case of a single shipment whose schedule is not
related to the schedule of any subsequent shipment, a statement that
schedule information must be protected in accordance with the
provisions of Sec. Sec. 73.21 and 73.22 until at least 10 days after
the shipment has entered or originated within the state.
(iv) For the case of a shipment in a series of shipments whose
schedules are related, a statement that schedule information must be
protected in accordance with the provisions of Sec. Sec. 73.21 and
73.22 until 10 days after the last shipment in the series has entered
or originated within the state
[[Page 63580]]
and an estimate of the date on which the last shipment in the series
will enter or originate within the state.
* * * * *
(g) State officials, state employees, and other individuals,
whether or not licensees of the Commission, who receive schedule
information of the kind specified in Sec. 73.37(f)(3) shall protect
that information against unauthorized disclosure as specified in
Sec. Sec. 73.21 and 73.22.
0
48. In Sec. 73.57 the section heading and paragraphs (a)(1) and (2)
and (b)(2)(i) and (ii) are revised and paragraph (e)(3) is added to
read as follows:
Sec. 73.57 Requirements for criminal history records checks of
individuals granted unescorted access to a nuclear power facility or
access to Safeguards Information.
(a) General. (1) Each licensee who is authorized to operate a
nuclear power reactor under part 50 of this chapter, or to engage in an
activity subject to regulation by the Commission shall comply with the
requirements of this section.
(2) Each applicant for a license to operate a nuclear power reactor
under part 50 of this chapter or to engage in an activity subject to
regulation by the Commission, as well as each entity who has provided
written notice to the Commission of intent to file an application for
licensing, certification, permitting, or approval of a product subject
to regulation by the Commission shall submit fingerprints for those
individuals who will have access to Safeguards Information.
* * * * *
(b) * * *
(2) * * *
(i) For unescorted access to the nuclear power facility (but must
adhere to provisions contained in Sec. Sec. 73.21 and 73.22): NRC
employees and NRC contractors on official agency business; individuals
responding to a site emergency in accordance with the provisions of
Sec. 73.55(a); a representative of the International Atomic Energy
Agency (IAEA) engaged in activities associated with the U.S./IAEA
Safeguards Agreement at designated facilities who has been certified by
the NRC; law enforcement personnel acting in an official capacity;
State or local government employees who have had equivalent reviews of
FBI criminal history data; and individuals employed at a facility who
possess ``Q'' or ``L'' clearances or possess another active government
granted security clearance, i.e., Top Secret, Secret, or Confidential;
(ii) For access to Safeguards Information only but must adhere to
provisions contained in Sec. Sec. 73.21, 73.22, and 73.23: the
categories of individuals specified in 10 CFR 73.59.
* * * * *
(e) * * *
(3) In addition to the right to obtain records from the FBI in
paragraph (e)(1) of this section and the right to initiate challenge
procedures in paragraph (e)(2) of this section, an individual
participating in an NRC adjudication and seeking to obtain Safeguards
Information for use in that adjudication may appeal a final adverse
determination by the NRC Office of Administration to the presiding
officer of the proceeding. The request may also seek to have the Chief
Administrative Judge designate an officer other than the presiding
officer of the proceeding to review the adverse determination.
* * * * *
0
49. Section 73.59 is revised to read as follows:
Sec. 73.59. Relief from fingerprinting, identification and criminal
history records checks and other elements of background checks for
designated categories of individuals.
Fingerprinting, and the identification and criminal history records
checks required by section 149 of the Atomic Energy Act of 1954, as
amended, and other elements of background checks are not required for
the following individuals prior to granting access to Safeguards
Information, including Safeguards Information designated as Safeguards
Information-Modified Handling as defined in 10 CFR 73.2:
(a) An employee of the Commission or the Executive Branch of the
United States government who has undergone fingerprinting for a prior
U.S. government criminal history records check;
(b) A member of Congress;
(c) An employee of a member of Congress or Congressional committee
who has undergone fingerprinting for a prior U.S. government criminal
history records check;
(d) The Comptroller General or an employee of the Government
Accountability Office who has undergone fingerprinting for a prior U.S.
Government criminal history records check;
(e) The Governor of a State or his or her designated State employee
representative;
(f) A representative of a foreign government organization that is
involved in planning for, or responding to, nuclear or radiological
emergencies or security incidents who the Commission approves for
access to Safeguards Information, including Safeguards Information
designated as Safeguards Information--Modified Handling;
(g) Federal, State, or local law enforcement personnel;
(h) State Radiation Control Program Directors and State Homeland
Security Advisors or their designated State employee representatives;
(i) Agreement State employees conducting security inspections on
behalf of the NRC pursuant to an agreement executed under section
274.i. of the Atomic Energy Act of 1954, as amended;
(j) Representatives of the International Atomic Energy Agency
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards
Agreement who have been certified by the NRC;
(k) Any agent, contractor, or consultant of the aforementioned
persons who has undergone equivalent criminal history records and
background checks to those required by 10 CFR 73.22(b) or 73.23(b).
0
50. A new Appendix I to part 73 is added to read as follows:
APPENDIX I TO PART 73--CATEGORY 1 AND 2 RADIOACTIVE MATERIALS
Table I-1--Quantities of Concern Threshold Limits
----------------------------------------------------------------------------------------------------------------
Category 1 Category 2
--------------------------------------------------------------------------------
Radionuclides Curies Curies
Terabecquerels (TBq)(Ci)\1\ Terabecquerels (TBq)(Ci)\1\
----------------------------------------------------------------------------------------------------------------
Americium-241.................. 6 x 10\1\.......... 1.6 x 10\3\....... 6 x 10-\1\........ 1.6 x 10\1\
Americium-241/Be............... 6 x 10\1\.......... 1.6 x 10\3\....... 6 x 10-\1\........ 1.6 x 10\1\
Californium-252................ 2 x 10\1\.......... 5.4 x 10\2\....... 2 x 10-\1\........ 5.4
Curium-244..................... 5 x 10\1\.......... 1.4 x 10\3\....... 5 x 10-\1\........ 1.4 x 10\1\
Cobalt-60...................... 3 x 10\1\.......... 8.1 x 10\2\....... 3 x 10-\1\........ 8.1
[[Page 63581]]
Cesium-137..................... 1 x 10\2\.......... 2.7 x 10\3\....... 1................. 2.7 x 10\1\
Gadolinium-153................. 1 x 10\3\.......... 2.7 x 10\4\....... 1 x 10\1\......... 2.7 x 10\2\
Iridium-192.................... 8 x 10\1\.......... 2.2 x 10\3\....... 8 x 10-\1\........ 2.2 x 10\1\
Promethium-147................. 4 x 10\4\.......... 1.1 x 10\6\....... 4 x 10\2\......... 1.1 x 10\4\
Plutonium-238.................. 6 x 10\1\.......... 1.6 x 10\3\....... 6 x 10-\1\........ 1.6 x 10\1\
Plutonium-239/Be............... 6 x 10\1\.......... 1.6 x 10\3\....... 6 x 10-\1\........ 1.6 x 10\1\
Radium-226..................... 4 x 10\1\.......... 1.1 x 10\3\....... 4 x 10-\1\........ 1.1 x 10\1\
Selenium-75.................... 2 x 10\2\.......... 5.4 x 10\3\....... 2................. 5.4 x 10\1\
Strontium-90 (Y-90)............ 1 x 10\3\.......... 2.7 x 10\4\....... 1 x 10\1\......... 2.7 x 10\2\
Thulium-170.................... 2 x 10\4\.......... 5.4 x 10\5\....... 2 x 10\2\......... 5.4 x 10\3\
Ytterbium-169.................. 3 x 10\2\.......... 8.1 x 10\3\....... 3................. 8.1 x 10\1\
----------------------------------------------------------------------------------------------------------------
\1\ The regulatory standard values are given in TBq. Curie (Ci) values are provided for practical usefulness
only and are rounded after conversion.
Calculations Concerning Multiple Sources or Multiple Radionuclides
The ``sum of fractions'' methodology for evaluating combinations of
multiple sources or multiple radionuclides, is to be used in
determining whether a facility or activity meets or exceeds the
threshold limits and is thus subject to the physical and/or information
security requirements of this part.
I. If multiple sources and/or multiple radionuclides are present in
a facility or activity, the sum of the fractions of the activity of
each of the radionuclides must be determined to verify the facility or
activity is less than the Category 1 or 2 limits of Table 1, as
appropriate. Otherwise, if the calculated sum of the fractions ratio,
using the following equation, is greater than or equal to 1.0, then the
facility or activity meets or exceeds the threshold limits of Table 1
and the applicable physical and/or information security provisions of
this part apply.
II. Use the equation below to calculate the sum of the fractions
ratio by inserting the actual activity of the applicable radionuclides
from Table 1 or of the individual sources (of the same radionuclides
from Table 1) in the numerator of the equation and the corresponding
threshold activity limit from Table 1 in the denominator of the
equation. Sum of the fraction calculations must be performed in metric
values (i.e., TBq) and the numerator and denominator values must be in
the same units.
R1 = activity for radionuclides or source number 1
R2 = activity for radionuclides or source number 2
RN = activity for radionuclides or source number n
AR1 = activity limit for radionuclides or source number 1
AR2 = activity limit for radionuclides or source number 2
ARN = activity limit for radionuclides or source number n
[GRAPHIC] [TIFF OMITTED] TR24OC08.000
PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS
0
51. The authority citation for part 76 is revised to read as follows:
Authority: Secs. 161, 68 Stat. 948, as amended, secs. 1312,
1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-
349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204,
206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846).
Sec. 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat.
1321, 1321-349 (42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58,
119 Stat. 549 (2005). Sec. 76.7 also issued under Pub. L. 95-601,
sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Sec. 76.22 is also issued
under sec. 193(f), as amended, 104 Stat. 2835, as amended by Pub. L.
104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(f)). Sec. 76.35(j)
also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
0
52. 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 (DOE)
as Unclassified Controlled Nuclear Information must be protected in
accordance with DOE requirements.
* * * * *
0
53. 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. Information designated by the U.S. Department of
Energy (DOE) as Unclassified Controlled Nuclear Information must be
protected in accordance with DOE requirements.
0
54. 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. Information designated by the U.S. Department of Energy (DOE)
as Unclassified Controlled Nuclear Information must be protected in
accordance with DOE requirements.
PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
0
55. The authority citation for part 150 is revised to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594
(2005).
[[Page 63582]]
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).
0
56. 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 of Safeguards Information
in Sec. 73.21 and the requirements in Sec. 73.22 or Sec. 73.23 of
this chapter, as applicable.
* * * * *
Dated at Rockville, Maryland this 14th day of October 2008.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-24904 Filed 10-23-08; 8:45 am]
BILLING CODE 7590-01-P