Federal Register: February 11, 2005 (Volume 70, Number 28)
Proposed Rules        
Page 7196-7217                     

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76 and 150

RIN: 3150-AH57

 
Protection of Safeguards Information

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations for the protection of Safeguards Information (SGI) to 
protect SGI from inadvertent release and unauthorized disclosure which 
might compromise the security of nuclear facilities and materials. The 
proposed amendments are consistent with recent Commission practices 
reflected in orders and threat advisories, issued since September 11, 
2001. The proposed amendments would affect certain licensees, 
information, and materials not currently specified in the regulations, 
but which are within the scope of Commission authority under the Atomic 
Energy Act of 1954, as amended (AEA).

DATES: The comment period expires March 28, 2005. Submit comments 
specific to the information collections aspects of this rule March 14, 
2005. Comments received after that date will be considered if it is 
practical to do so, but the NRC is able to ensure consideration only 
for comments received on or before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number (RIN 3150-AH57) in the subject line 
of your comments. Comments on this rulemaking submitted in writing or 
in electronic form will be made available for public inspection. 
Because your comments will not be edited to remove any identifying or 
contact information, the NRC cautions you against including personal 
information such as social security numbers and birth dates in your 
submission.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected] If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at http://ruleforum.llnl.gov. Address questions 

about our rulemaking Web site to Carol Gallagher at (301) 415-5905; e-
mail [email protected] Comments can also be submitted via the Federal 
Rulemaking Portal http://www.regulations.gov.

    Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone: 
(301) 415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101. Publicly available documents related to this rulemaking 
may be examined and copied for a fee at the NRC's Public Document Room 
(PDR), Public File Area O1F21, One White Flint North, 11555 Rockville 
Pike, Rockville, Maryland. Selected documents, including comments, can 
be reviewed and downloaded electronically via the NRC rulemaking Web 
site at http://ruleforum.llnl.gov.

    You may submit comments on the information collections by the 
methods indicated in the Paperwork Reduction Act Statement.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/NRC/ADAMS/index.html. From this 

site, the public can gain entry into the NRC's Agencywide Document 
Access and Management System (ADAMS), which provides text and image 
files of NRC's public documents. If you do not have access to ADAMS or 
if there are problems in accessing the documents located in ADAMS, 
contact the NRC's PDR Reference staff at 1-800-397-4209, 301-415-4737 
or by e-mail to [email protected]

FOR FURTHER INFORMATION CONTACT: Marjorie Rothschild, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-1633, e-mail [email protected] or Bernard 
Stapleton, Office of Nuclear Security and Incident Response, Nuclear 
Regulatory Commission, Washington, DC 20555-0001, (301) 415-2432, e-
mail [email protected]

SUPPLEMENTARY INFORMATION:
I. Background
II. Need for Rule
III. Purpose of Rulemaking
IV. Request for Specific Comment
V. Discussion of Proposed Amendments by Section
VI. Criminal Penalties
VII. Agreement State Issues
VIII. Plain Language
IX. Voluntary Consensus Standards
X. Finding of No Significant Impact: Environmental Assessment
XI. Paperwork Reduction Act Statement
XII. Regulatory Analysis
XIII. Regulatory Flexibility Analysis
XIV. Backfit Analysis

I. Background

    Safeguards Information (SGI) is a special category of sensitive 
unclassified information to be protected from unauthorized disclosure 
under section 147 of the Atomic Energy Act of 1954, as amended (AEA). 
Although SGI is considered to be sensitive unclassified information, it 
is handled and protected more like classified National Security 
Information than like other sensitive unclassified information (e.g., 
privacy and proprietary information). Part 73, ``Physical Protection of 
Plants and Materials,'' of the Commission's regulations in Title 10 of 
the Code of Federal Regulations contains requirements for the 
protection of SGI. Commission orders issued since September 11, 2001, 
have also imposed requirements for the designation and protection of 
SGI. These requirements apply to SGI in the hands of any person, 
whether or not a licensee of the Commission, who produces, receives, or 
acquires SGI. An individual's access to SGI requires both a valid 
``need to know'' such information and authorization based on an 
appropriate background investigation. Power reactors, certain research 
and test reactors, and spent fuel storage installations are examples of 
the categories of licensees currently within the scope of the 
provisions of part 73 for the protection of SGI. Examples of the types 
of information designated as SGI include the physical security plan for 
a licensee's facility; the design features of such a licensee's 
physical protection system; and operational procedures for the 
licensee's security organization.
    The Commission has authority under section 147 of the AEA to 
designate, by regulation or order, other types of information as SGI. 
For example, section 147.a.(2) allows the Commission to designate as 
SGI a licensee's or applicant's detailed security measures (including 
security plans, procedures and equipment) for the physical protection 
of source material or byproduct material in quantities determined by 
the Commission to be significant to the public health and

[[Page 7197]]

safety or the common defense and security. The Commission has, by 
order, imposed SGI handling requirements on certain categories of these 
other licensees. An example is a November 25, 2003 order issued to 
certain materials licensees.\1\
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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. Employees, past or 
present, and all persons who have had access to SGI have a continuing 
obligation to protect SGI in order to prevent inadvertent release and 
unauthorized disclosure. Information designated as SGI must be withheld 
from public disclosure and must be physically controlled and protected. 
Protection requirements include (1) secure storage; (2) document 
marking; (3) restriction of access; (4) limited reproduction; (5) 
protected transmission; and (6) controls for information processing on 
electronic systems.
    Inadequate protection of SGI, including inadvertent release and 
unauthorized disclosure, may result in civil and/or criminal penalties. 
The AEA explicitly provides in section 147.a. that ``any person, 
whether or not a licensee of the Commission, who violates any 
regulations adopted under this section shall be subject to the civil 
monetary penalties of section 234 of this Act.'' Furthermore, willful 
violation of any regulation or order governing SGI is a felony subject 
to criminal penalties in the form of fines or imprisonment, or both, as 
prescribed in section 223 of the AEA.

II. Need for Rule

    Changes in the threat environment have revealed the need to protect 
additional types of security information held by a broader group of 
licensees as SGI. Under the current regulations, some categories of 
licensees are not explicitly included in the categories of licensees 
subject to the general performance requirements in 10 CFR 73.21(a). 
Similarly, the current regulations do not specify all of the types of 
information that are now recognized to be significant to the public 
health and safety or the common defense and security. The unauthorized 
release of this information could result in harm to the public health 
and safety and the Nation's common defense and security, as well as 
damage to the Nation's critical infrastructure, including nuclear power 
plants and other facilities and materials licensed and regulated by the 
NRC.
    Since September 11, 2001, the NRC has issued orders that have 
increased the number of licensees whose security measures will be 
protected as SGI and have added additional types of security 
information considered to be SGI. Orders have been issued to power 
reactor licensees, fuel cycle facility licensees, certain source 
material licensees, and certain byproduct material licensees. Some of 
the orders expanded the types of information to be protected by 
licensees who already have an SGI protection program, such as nuclear 
power reactor licensees. Other orders were issued to licensees that 
have not previously been explicitly subject to SGI protection 
requirements in the regulations, such as certain licensees authorized 
to manufacture or initially transfer items containing radioactive 
material.\2\ Some orders impose a new designation: Safeguards 
Information--Modified Handling (SGI-M). SGI-M pertains to certain SGI 
subject to handling requirements that are modified from what part 73 
itself currently requires. This designation for SGI applies to certain 
quantities of source, byproduct, and special nuclear materials for 
which the risk of unauthorized disclosure of information is relatively 
low. In contrast, more stringent requirements are imposed for the 
protection of SGI pertaining to licensees such as power reactors and 
certain fuel cycle facilities.
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    \2\ See 69 FR 3397 (January 23, 2004).
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    Some of the requirements imposed by orders that have increased the 
types of information to be considered SGI are not covered by the 
current regulations. Although new SGI requirements could continue to be 
imposed through the issuance of orders, the regulations would not 
reflect current Commission SGI policy and/or requirements. Orders apply 
only to the licensees named in the orders, and enforcement orders do 
not apply prospectively to applicants for new licenses such as a rule 
would. Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-
04-6, 59 NRC 62 (2004) (February 18, 2004). Finally, it has been 
Commission policy to codify requirements in the regulations and not to 
rely on orders indefinitely to impose requirements that should have 
generic application.

III. Purpose of Rulemaking

    NRC staff review of the SGI regulatory program indicates that 
changes in the regulations are needed to address issues such as access 
to SGI, types of security information to be protected, and handling and 
storage requirements.\3\
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    \3\ The NRC staff is in the process of revising the guidance for 
designation of SGI and has issued a draft document for comment 
(Nuclear Regulatory Commission Draft Guide for the Designation of 
Safeguards Information, July 2004).
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    This rulemaking would:
    Codify the SGI requirements imposed by the orders;
    Expand the scope of part 73 to include additional categories of 
licensees (e.g., source and byproduct material licensees, research and 
test reactors not previously covered, and fuel cycle facilities not 
previously covered);
    Expand the types of security information covered by the definition 
of SGI in Sec.  73.21 to include access authorization for background 
screening, detailed emergency planning scenarios and implementing 
procedures, vulnerabilities or weaknesses corrected in a security 
system, and some training and qualification information; and
    Update Sec.  73.21 to address advanced technology, such as new 
types of portable communication devices and copiers using digital 
technology.
    A graded approach based on the risks and consequences of 
information disclosure is being used in determining which category of 
licensee or type of information will be subject to certain protection 
requirements. This graded approach can be applied to such issues as the 
type of information to be protected, the classes of licensees subject 
to the rule, and the level of handling requirements necessary for the 
various licensees. For example, the graded approach allows certain 
licensees, whose quantities and forms of material pose a low risk from 
unauthorized information disclosure, to employ the modified-handling 
procedures introduced in recent orders for Safeguards Information 
designated as SGI-M.
    The requirements set forth in this proposed rule are the minimum 
restrictions the Commission believes to be necessary in the current 
threat environment to protect Safeguards Information against 
inadvertent release or unauthorized disclosure which might compromise 
the health and safety of the public or the common defense and security. 
The proposed rule covers those facilities and materials the Commission 
has already determined need to be protected against theft or sabotage. 
The

[[Page 7198]]

categories of information constituting SGI relate to the types of 
facilities and the quantities of special nuclear material, source 
material and byproduct material determined by the Commission to be 
significant and therefore subject to protection against unauthorized 
disclosure pursuant to section 147 of the AEA. Unauthorized release of 
Safeguards Information could reduce the deterrence value of systems and 
measures used to protect nuclear facilities and materials and allow for 
the possible compromise of those facilities and materials. Such 
disclosures could also facilitate advance planning by an adversary 
intent on committing acts of theft or sabotage against the facilities 
and materials within the scope of the rule. The rule requirements 
satisfy the minimum restrictions provision of section 147.a.(3)(A) of 
the AEA. Further, the Commission has determined, pursuant to section 
147.a.(3)(B) of the AEA, that the unauthorized disclosure of the 
information that is the subject of the proposed rule could reasonably 
be expected to have a significant adverse effect on the health and 
safety of the public or the common defense and security by 
significantly increasing the likelihood of theft, diversion, or 
sabotage of nuclear material or a facility.

IV. Request for Specific Comment

    The NRC is soliciting specific public comment on the following 
issue associated with the proposed rulemaking action:
    Differing Requirements for Access to SGI and SGI-M--sections 
73.22(b)(1) and 73.23(b)(1) contain differing requirements for 
performing background checks and making trustworthiness and reliability 
determinations for granting personnel access to SGI or SGI-M. 
Specifically, under Sec.  73.22(b)(1)(i)(A), an individual to be 
authorized access to SGI by a nuclear power reactor applicant or 
licensee must demonstrate trustworthiness and reliability and undergo a 
Federal Bureau of Investigation criminal history check to the extent 
required by Sec.  73.57, which includes fingerprinting. Individuals to 
be authorized access to SGI by other applicants or licensees covered by 
Sec.  73.22 or by a source, byproduct, or special nuclear material 
applicant or licensee pursuant to Sec.  73.23(b)(1)(i) must demonstrate 
trustworthiness and reliability through a comprehensive background 
check or other means approved by the Commission. These different 
requirements are based on the statutory authorization in section 149 of 
the AEA for the NRC to require fingerprinting of individuals to be 
granted access to SGI by nuclear power reactor applicants or licensees. 
There is not a similar statutory authorization to require 
fingerprinting by other applicants or licensees.
    The NRC specifically invites comment on whether stakeholders would 
perceive difficulties in complying with these varying requirements. If 
so, the Commission would welcome stakeholder's suggestions, comments, 
and/or proposals which would provide a more uniform approach to 
background checks and trustworthiness and reliability determinations.

V. Discussion of Proposed Amendments by Section

    Conforming changes to 10 CFR part 2, ``Rules of practice for 
domestic licensing proceedings and issuance of orders,'' would be made 
to the following sections to include citation of 10 CFR 73.22 and 
73.23, in addition to citation of current Sec.  73.21, as applicable 
appropriate: paragraph (f) of Sec.  2.709, ``Discovery against NRC 
staff;'' \4\ paragraph (a)(4)(iii) of Sec.  2.1003, ``Availability of 
material;'' and paragraph (b)(6) of Sec.  2.1010, ``Pre-License 
application presiding officer.''
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    \4\ In Sec.  2.709(f), which replaces former Sec.  2.744(e), a 
few changes in the language and citations in former Sec.  2.744(e), 
not relevant here, were made as part of a separate rulemaking 
amending 10 CFR part 2. ``Changes to Adjudicatory Process; Final 
Rule,'' 69 FR 2182, 2262 (January 14, 2004).
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    Conforming changes are also being proposed to 10 CFR part 30, 
``Rules of general applicability to domestic licensing of byproduct 
material,'' and 10 CFR part 40, ``Domestic licensing of source 
material.'' The proposed changes would add provisions to the sections 
of those parts addressing applications for specific licenses and terms 
and conditions of licenses. In part 30, Sec. Sec.  30.32, ``Application 
for specific licenses'' and 30.34, ``Terms and conditions of 
licenses,'' would be amended to include citation of Sec. Sec.  73.21 
and 73.23. In part 40, corresponding sections (Sec. Sec.  40.41 and 
40.31) would be amended to include citation of Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23, as applicable. With these 
additions, it should be clear that part 30 and part 40 licensees and 
applicants (subject to 10 CFR part 73), under each part would be 
required to protect categories of documents and information in 
accordance with the requirements of part 73.
    Conforming changes to 10 CFR part 50, ``Domestic licensing of 
production and utilization facilities,'' would add to Sec.  50.34, 
``Contents of applications; technical information'' and Sec.  50.54, 
``Conditions of licenses,'' citations to Sec.  73.22, ``Protection of 
Safeguards Information: Specific Requirements'' and Sec.  73.23, 
``Protection of Safeguards Information-Modified Handling: Specific 
Requirements.'' The purpose of these changes would be to reflect that 
specific requirements for protecting SGI relating to such licensees and 
materials would be moved from Sec.  73.21 to proposed Sec.  73.22 and 
Sec.  73.23, of this chapter, as applicable.
    Conforming changes are also being proposed to 10 CFR part 52, 
``Early site permits; standard design certifications; and combined 
licenses for nuclear power plants.'' Specifically, Sec.  52.47, 
``Contents of applications,'' relating to standard design 
certifications, would be amended to add as paragraph (c) the 
requirement that an applicant for a standard design certification under 
part 52 shall protect SGI against unauthorized disclosure in accordance 
with the requirements of Sec. Sec.  73.21 and 73.22 of this chapter, as 
applicable. A similar conforming change is being proposed for Sec.  
52.79, ``Contents of application; technical information,'' relating to 
combined licenses for nuclear power facilities.
    Part 60, ``Disposal of high-level Radioactive wastes in geologic 
repositories,'' would be amended to add in Sec.  60.21, ``Content of 
application,'' new paragraph (d). That paragraph would state that the 
application for a license for a geologic repository operations area 
shall protect as SGI detailed security measures and related 
information, in accordance with the requirements of Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable. A parallel change would be made to a new paragraph (d) to 
Sec.  60.42, ``Conditions of license.''
    Part 63, ``Disposal of high-level radioactive wastes In a geologic 
repository at Yucca Mountain, Nevada,'' would be amended to add new 
paragraph (d) to Sec.  63.21, ``Content of application.'' That section 
would state that the applicant for a license to receive and possess 
source, byproduct, and special nuclear material at a geologic 
repository at Yucca Mountain, Nevada shall protect the detailed 
security measures for the physical protection of high-level radioactive 
waste as SGI in accordance with Sec. Sec.  73.21 and 73.22. A 
corresponding change (i.e., adding new paragraph (e)) would be made to 
Sec.  63.42, ``Conditions of license.''
    Conforming changes are being proposed for 10 CFR part 70, 
``Domestic licensing of special nuclear material,'' subpart D--
``License applications.'' Specifically, Sec.  70.22, ``Contents of 
applications,'' and Sec.  70.32 ``Conditions of licenses,'' would be 
modified to add citation of proposed Sec.  73.23. These modifications 
are being proposed to be

[[Page 7199]]

consistent with the addition of proposed Sec.  73.23 containing 
specific requirements for Safeguards Information--Modified Handling 
related to certain quantities of source and byproduct material and 
special nuclear material of moderate or low strategic significance, 
except for those materials covered under Sec.  73.22.
    Part 71, ``Packaging and transportation of radioactive material,'' 
would be amended to add new Sec.  71.11, ``Protection of Safeguards 
Information'' because licensees, certificate holders, or applicants for 
a Certificate of Compliance for transport of radioactive material would 
be required to protect Safeguards Information in accordance with the 
applicable amended requirements in part 73. The proposed revision does 
not address the protection of design-related information with respect 
to transportation packages.
    Part 72, ``Licensing requirements of the independent storage of 
spent nuclear fuel, high-level radioactive waste, and reactor-related 
greater than Class C waste,'' would also be amended. A new paragraph 
(f) would be added to Sec.  72.22, ``Contents of application; General 
and financial information,'' to require that each applicant for a 
license under part 72 would be required to protect SGI against 
unauthorized disclosure in accordance with Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23, of this chapter, as 
applicable. In Sec.  72.44, ``License conditions,'' paragraph (h) would 
include a similar requirement for each licensee subject to part 73. 
Section 72.212 would be changed to designate paragraph (b)(5)(v) as 
paragraph (b)(5)(vi) and a new paragraph (b)(5)(v) would be added to 
require that each general licensee that receives, transfers, and 
possesses power reactor spent fuel, power reactor-related Greater than 
Class C (GTCC) waste, and other radioactive materials associated with 
spent fuel storage shall protect Safeguards Information against 
unauthorized disclosure in accordance with the requirements of Sec.  
73.21 and the requirements of Sec.  73.22 or Sec.  73.23, of this 
chapter, as applicable. A new paragraph (n) would be added to Sec.  
72.236, ``Specific requirements for spent fuel storage cask approval 
and fabrication,'' to note that Safeguards Information shall be 
protected against unauthorized disclosure in accordance with the 
requirements of Sec.  73.21 and the requirements of Sec.  73.22 or 
Sec.  73.23 of this chapter, as applicable.

Section 73.1 Purpose and Scope

    Paragraph (b)(7) of this section would be amended to include a 
reference to ``Safeguards Information-Modified Handling'' (SGI-M), the 
designation for marking of documents containing Safeguards Information 
(SGI) to which the Commission has determined modified protection 
requirements apply. Orders to certain materials licensees contain this 
new SGI-M designation and the handling requirements for such 
information.

Section 73.2 Definitions

    This section would be amended to add definitions of the terms 
Individual Authorized Access to Safeguards Information and Individual 
Authorized Access to Safeguards Information-Modified Handling; 
Trustworthiness and Reliability, and Safeguards Information-Modified 
Handling Requirements. In addition, the definition of the term 
Safeguards Information would be modified.
    The new terms Individual Authorized Access to Safeguards 
Information and Individual Authorized Access to Safeguards Information-
Modified Handling, would be added to distinguish such individuals from 
an ``authorized individual,'' which is defined now to apply only to the 
control of and access to special nuclear material, without reference to 
handling of information or documents.
    The new term, Safeguards Information-Modified Handling, would be 
added to reflect the new designation for marking of SGI subject to this 
regulation. This marking has been previously established through 
Commission orders.
    The new term, Trustworthiness and Reliability, would be added to 
reflect Commission expectations regarding positive character attributes 
for access to SGI and SGI-M handling in addition to an individual's 
``need to know'' such information. This expectation is embodied 
elsewhere in part 73 (Sec.  73.56, ``Personnel access authorization 
requirements for nuclear power plants.'') and in 10 CFR 26.10, 
``General performance objectives,'' for fitness-for-duty. Specifically, 
Sec.  73.56(b) requires, as a performance objective of a licensee's 
access authorization program, ``high assurance'' that individuals 
granted unescorted access to a nuclear power plant's protected and 
vital areas are trustworthy and reliable. Similarly, under Sec.  
26.10(a), a licensee's fitness-for-duty program must provide reasonable 
assurance that covered personnel will perform their tasks in a 
``trustworthy and reliable manner.''
    The definition of ``Safeguards Information'' would be changed to 
reflect that certain categories of information relating to source and 
byproduct material are subject to protection as SGI against 
unauthorized disclosure pursuant to section 147 of the AEA. In 
addition, this definition would embody the Commission's authority under 
section 147 of the AEA to determine, by order or regulation, that the 
unauthorized disclosure of other information could reasonably be 
expected to have an adverse effect on the health and safety of the 
public or the common defense and security by significantly increasing 
the likelihood of theft, diversion, or sabotage of materials and 
facilities. The Commission may from time to time exercise its authority 
under section 147.a.\5\ of the AEA to define additional information as 
SGI. Thus, the public and other stakeholders would, through orders or 
new regulations, be given notice of any additional definitions of SGI.
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    \5\ In the exercise of this authority, the Commission makes 
certain determinations and applies the minimum restrictions 
necessary to protect SGI, in compliance with section 147 of the AEA.
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    The proposed definition of SGI would also delete the words 
``licensee's or applicant's'' [information]. This change is being 
proposed to reflect in the regulations the Commission's authority under 
section 147 of the AEA to determine that other information involving 
the materials described in that provision shall be protected as SGI. 
This authority can be exercised if the unauthorized disclosure of that 
information could reasonably be expected to have an adverse effect on 
the health and safety of the public or the common defense and security 
by significantly increasing the likelihood of theft, diversion, or 
sabotage of materials and facilities regulated by the Commission. The 
proposed change is also based on the Commission's very broad authority 
under section 161.b. of the AEA to regulate the use and possession of 
source, byproduct, and special nuclear material in order to promote the 
common defense and security or to protect health and minimize danger to 
life or property.

Section 73.21 Protection of Safeguards Information: Performance 
Requirements

    This section would be revised as follows:

Section 73.21(a) General Performance Requirements

    The language in paragraph (a) would be simplified and revised to 
state at the outset that any person, including a licensee or an 
applicant, who produces, receives or acquires SGI shall ensure that it 
is protected against unauthorized disclosure. Although this is not a 
new requirement under Sec.  73.21(a), the current language and format 
of that paragraph does not emphasize this as an

[[Page 7200]]

obligation that extends to any person who produces, receives, or 
acquires SGI.
    Revised paragraphs Sec.  73.21(a)(1)(i) and (a)(1)(ii) would embody 
the general performance requirement in paragraph (a) of current Sec.  
73.21 that licensees, applicants, and persons subject to that section 
must establish, implement, and maintain an information protection 
system that includes specified measures. However, the proposed rule 
presents separate requirements for the different categories of 
licensees.
    Proposed Sec.  73.22 contains the specific requirements for 
Safeguards Information related to power reactors, licensees authorized 
to possess a formula quantity of strategic special nuclear material, 
transportation of or delivery to a carrier for transportation of a 
formula quantity of strategic special nuclear material or more than 100 
grams of irradiated reactor fuel, and fuel cycle facilities required to 
implement security measures. Measures for protecting SGI relating to 
certain quantities of source and byproduct material, and special 
nuclear material of moderate or low strategic significance are 
specified in proposed Sec.  73.23.\6\
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    \6\ The quantities are those determined by the Commission 
through order or regulation to be significant to the public health 
and safety or the common defense and security.
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    Although the measures for the protection of SGI are applicable if 
the information is produced, received, or acquired, if licensees do not 
have such information then the associated requirements would not apply. 
For example, research and test reactors are not required to implement 
the power reactor Design Basis Threat (DBT),\7\ and therefore, in all 
likelihood would not possess DBT-related information. However, should a 
research and test reactor receive or acquire such information, it would 
be required to protect the information in accordance with applicable 
measures.
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    \7\ The DBTs, as described in 10 CFR 73.1, provide specific 
adversary characteristics which power reactor and Category I fuel 
cycle facilities need to protect against. The DBTs form the basis 
for site-specific defensive strategies as set forth in a site's 
physical security plan and contingency plan.
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    Including the references to source, byproduct, and special nuclear 
material in these new paragraphs would reflect the full scope of 
section 147 of the AEA. That section authorizes the Commission to 
protect against the unauthorized disclosure of SGI which specifically 
identifies a licensee's or applicant's detailed procedures or security 
measures relating to special nuclear material, byproduct material, and 
source material, in quantities determined by the Commission through 
order or regulation to be significant. This change would lessen the 
need for the Commission to issue orders to licensees for the protection 
of SGI relating to categories of licensees, information, or materials 
not currently within the scope of part 73.
    Section 73.21(a)(1)(i) and (a)(1)(ii) would also add the word 
``implement'' to the requirement in current Sec.  73.21(a) that 
licensees and persons subject to this section must establish and 
maintain an information protection system to protect against the 
unauthorized disclosure of SGI.

Section 73.21(b) Commission Authority

    This is a new paragraph that recognizes the Commission's broad 
authority and flexibility under section 147 of the AEA to designate 
information as SGI or SGI-M and to impose levels of handling 
requirements on any person who produces, receives, or acquires SGI. In 
exercising this authority, the Commission is required to make a finding 
that the unauthorized disclosure of such information could reasonably 
be expected to have a significant adverse effect on the health and 
safety of the public or the common defense and security by 
significantly increasing the likelihood of the theft, diversion, or 
sabotage of a facility or source, byproduct, and special nuclear 
material. In addition, the Commission is to impose the minimum 
restrictions necessary to protect the health and safety of the public 
or the common defense and security.
    The remaining paragraphs of Sec.  73.21 will be renumbered into new 
Sec. Sec.  73.22 and 73.23, and modified as noted.

Section 73.22 Protection of Safeguards Information: Specific 
Requirements

    New Sec.  73.22 would be added, containing specific requirements 
for Safeguards Information related to power reactors, licensees 
authorized to possess a formula quantity of strategic special nuclear 
material, transportation of or delivery to a carrier for transportation 
of a formula quantity of strategic special nuclear material or more 
than 100 grams of irradiated reactor fuel, and fuel cycle facilities 
required to implement security measures.

Section 73.22(a) Information To Be Protected

    Current Sec.  73.21(b) ``Information To Be Protected,'' would be 
renumbered as Sec.  73.22(a) and be revised to add specificity to the 
types of information and documents that must be protected as SGI. Such 
information and documents would include the elements and 
characteristics of the DBT in a level of detail greater than that 
specified in Sec.  73.1, as well as security-related requirements to be 
protected against unauthorized disclosure such as protective measures, 
interim compensatory measures, and additional security measures. These 
changes are necessary to codify in the regulations the recent practices 
of the Commission as reflected in orders and threat advisories issued 
since September 11, 2001.
    Section 73.21(a)(1), ``Physical Protection at Fixed Sites,'' would 
be changed to be consistent with the language in section 147.a.(1), 
(2), and (3) of the AEA to include information relating to all of the 
materials there specified. As revised, paragraph (a)(1) of Sec.  73.21 
would not be limited to information concerning the protection of power 
reactors authorized to operate and facilities that possess formula 
quantities of strategic special nuclear material, as is current Sec.  
73.21(b)(1). Section (a)(1)(i) would be revised to delete the word 
``nuclear'' to be consistent with the terminology in section 147 of the 
AEA. In addition, the words ``All portions of'' would be added at the 
beginning of this category to make clear the broader scope of this 
category of information intended to be protected as SGI.
    Sections 73.22(a)(1)(iii) and 73.22(a)(1)(v) embody changes to 
current Sec.  73.21(b)(1)(iii) and current Sec.  73.21(b)(1)(v). The 
new Sec.  73.22(a)(ii) would delete the words ``Details of'' at the 
beginning of these categories of information to make clear the broader 
scope of the information intended to be protected as SGI.
    Section 73.22(a)(1)(vi) would be current Sec.  73.21(b)(1)(vi) and 
would be amended to include the phrase ``passwords integral to the 
physical security system'' because such passwords constitute the type 
of information that should be protected as SGI.
    Section 73.22(a)(1)(viii), current Sec.  73.21(b)(1)(viii), and 
Sec.  73.22(a)(1)(ix), current Sec.  73.21(b)(1)(ix), would be revised 
to add at the beginning of each category the words ``All portions of.'' 
This change would make it clear that the referenced plans in their 
entirety and subparts are intended to be designated as SGI. In 
addition, current Sec.  73.21(a)(1)(ix) would be changed to recognize 
the importance of the licensee's overall facility guard training and 
qualification plan as a ``composite'' plan.
    New Sec.  73.22(a)(1)(x) would reflect a combination of current 
paragraphs Sec.  73.21(b)(1)(x), Sec.  73.21(b)(1)(xi), and

[[Page 7201]]

Sec.  73.21(b)(1)(xii). As revised, this paragraph would specify the 
enumerated aspects of response forces.
    Proposed Sec.  73.22(a)(1)(xi) would be added to cover information 
concerning the size, tactics and capabilities required to defend 
against the DBT or information that would disclose elements and 
characteristics of the DBT in a greater level of detail than that 
specified in Sec.  73.1.
    Proposed Sec.  73.22(a)(1)(xii) would be added to specify for 
protection as SGI engineering and safety analyses, emergency planning 
procedures or scenarios, and other similar information relating to the 
physical protection of a facility or materials if the unauthorized 
disclosure of such information could reasonably be expected to have a 
significant adverse effect on the health and safety of the public or 
the common defense and security by significantly increasing the 
likelihood of theft, diversion, or sabotage of such material or such 
facility.
    Proposed Sec.  73.22(a)(1)(xiii) is the current Sec.  
73.21(b)(1)(xiii).

Section 73.22(a)(2) Physical Protection in Transit

    The introductory paragraph in current Sec.  73.21(b)(2) and Sec.  
73.21(b)(2)(i), Sec.  73.21(b)(2)(iii) and Sec.  73.21(b)(2)(iv) are 
renumbered as new introductory paragraph Sec.  73.22(a)(2), Sec.  
73.22(a)(2)(i), Sec.  73.22(a)(2)(iii) and Sec.  73.22(a)(2)(iv). The 
introductory paragraph would be changed to reflect the applicability of 
Sec.  73.22 to the transportation of or delivery to a carrier for 
transportation of a formula quantity of strategic special nuclear 
material or more than 100 grams of irradiated reactor fuel.
    Section 73.22(a)(2)(i) would be revised to include the words ``All 
portions of'' to make it clear that these plans in their entirety and 
subparts are intended to be designated as SGI.
    Current Sec.  73.21(b)(2)(ii) would be re-numbered as Sec.  
73.22(a)(2)(ii) but would otherwise be unchanged.
    Current Sec.  73.21(b)(2)(iii) would be renumbered as Sec.  
73.22(a)(2)(iii) and changed to delete the words ``Details of'' to 
clarify that the features, devices, and systems in their entirety are a 
category of SGI to be protected as such.
    Current Sec.  73.21(b)(2)(iv) would be renumbered as Sec.  
73.22(a)(2)(iv) and would be otherwise unchanged.
    Current Sec.  73.21(b)(2)(v) would be renumbered as Sec.  
73.22(a)(2)(v) and would delete the words ``radio-telephone'' so as to 
encompass the more modern means of communications. This section would 
also delete the words ``Details regarding'' to clarify that all aspects 
of communications during transport are included in this category of 
information.
    Current Sec.  73.21(b)(2)(vi) would be re-numbered as Sec.  
73.22(a)(2)(vi) and would add the word ``security'' before the word 
``emergencies'.
    Section 73.22(a)(2)(vii) is new and its purpose would be to 
encompass information concerning the tactics and capabilities required 
to defend against attempted radiological sabotage or theft and 
diversion of formula quantities of special nuclear material or related 
information.
    Section 73.22(a)(2)(viii) would be added to include as information 
to be protected as SGI, engineering or safety analyses and emergency 
planning procedures or scenarios relating to the protection of a 
facility or material if the unauthorized disclosure of that information 
could reasonably be expected to have a significant adverse effect on 
the health and safety of the public or the common defense and security 
by significantly increasing the likelihood of theft, diversion, or 
sabotage of such facility or material.
    Section 73.22(a)(3) is based on current Sec.  73.21(b)(3), 
``Inspections, audits and evaluations,'' and would be broadened to 
cover specific requirements for Safeguards Information related to power 
reactors, licensees authorized to possess a formula quantity of 
strategic special nuclear material, transportation of or delivery to a 
carrier for transportation of a formula quantity of strategic special 
nuclear material or more than 100 grams of irradiated reactor fuel, and 
fuel cycle facilities required to implement security measures. Detailed 
information regarding defects, weaknesses or vulnerabilities is 
generally not released because identical circumstances may apply to a 
licensee or applicant employing similar security measures. In addition, 
the types of inspections and reports within the scope of the section 
would not be limited to safeguards inspections and reports. This 
language would recognize that documents concerning other types of 
inspections could contain SGI.
    Current Sec.  73.21(b)(4), Correspondence, would be renumbered 
Sec.  73.22(a)(4) and would be otherwise unchanged.
    Section 73.22(a)(5) would be new and would reflect the authority of 
the Commission under Section 147.a. of the AEA to designate as SGI such 
other information as the Commission may determine by order or 
regulation could reasonably be expected to have a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of theft, 
diversion, or sabotage of material or a facility (within the scope of 
Sec.  73.22). The Commission, may from time to time, exercise its 
authority under section 147.a.\8\ of the AEA to define additional 
information as SGI and the public and other stakeholders would have 
notice as to what these additional definitions of SGI are, through 
orders or new regulations, that would specifically define SGI.
---------------------------------------------------------------------------

    \8\ In the exercise of this authority, the Commission would make 
certain determinations and apply the minimum restrictions necessary 
to protect SGI.
---------------------------------------------------------------------------

    Section 73.22(b) is based on current Sec.  73.21(c) through (i), 
which address access to SGI and specific requirements for protecting it 
from unauthorized disclosure. The Commission is proposing to re-
structure part 73 to accommodate the separate handling requirements for 
SGI-M, imposed by order or regulation on certain byproduct, source, and 
special nuclear materials licensees. Proposed Sec.  73.22 would contain 
the specific requirements for Safeguards Information related to power 
reactors, licensees authorized to possess a formula quantity of 
strategic special nuclear material, transportation of or delivery to a 
carrier for transportation of a formula quantity of strategic special 
nuclear material or more than 100 grams of irradiated reactor fuel, and 
fuel cycle facilities required to implement security measures. 
Corresponding specific requirements for SGI-M relating to certain 
quantities of source and byproduct material, and special nuclear 
material of low or moderate strategic significance would be set forth 
in proposed Sec.  73.23.
    Section 73.22(b)(1) would state, as does current Sec.  73.21(c)(1), 
the requirement that no person may have access to SGI unless the person 
has an established ``need to know'' the information and fits within 
described occupational categories (proposed Sec.  73.22(b)(1)(i) 
through (vii)). The new Sec.  73.22(b)(1)(i)(A) and (B) add the 
requirement that individuals authorized access to SGI by a nuclear 
power reactor licensee and non-power reactor licensees and applicants, 
demonstrate ``trustworthiness and reliability'' prior to such access. 
The Commission has also updated the descriptions in Sec.  
73.21(c)(1)(ii) through (vi) of some of the occupational groups and 
added a new group, as described below.
    The description of the occupational category in Sec.  
73.22(b)(1)(i), (Commission, U.S. government, or licensee or applicant 
employee, agent, or contractor) would change the language in current 
Sec.  73.21(c)(1)(i) from

[[Page 7202]]

``U.S. Government'' to ``Executive Branch'' of the U.S. Government. 
This change is necessary because for purposes of access to SGI, members 
of Congress are covered separately in the occupational category 
specified in proposed Sec.  73.22(b)(1)(i).
    Additionally, new Sec.  73.22(b)(1)(i)(A) would require that an 
individual authorized access to SGI by a nuclear power reactor facility 
applicant or licensee must undergo an FBI criminal history check and 
must demonstrate trustworthiness and reliability. Another new 
paragraph, Sec.  73.22(b)(1)(i)(B) would be added, mandating that 
individuals to be authorized access to SGI by a non-power reactor 
facility applicant or licensee must also demonstrate trustworthiness 
and reliability. However, this demonstration would be based on a 
comprehensive background check or other means approved by the 
Commission in lieu of the FBI criminal history check.
    Section 73.22(b)(1)(ii) is based on current Sec.  73.21(c)(1)(ii) 
but would delete the phrase ``a duly authorized committee of'' [the 
Congress]. Under the Commission's current regulations in Sec.  
73.21(c)(1)(ii), a member of a ``duly authorized committee of the 
Congress'' with a ``need to know'' SGI is given access to such 
information. This section of the regulations does not set forth the 
meaning of a ``duly authorized committee.'' If narrowly interpreted, 
this occupational category might only apply to members of Congress who 
serve on NRC oversight committees. The deletion in the proposed rule of 
the phrase ``a duly authorized committee'' [of the Congress] would mean 
that the authorization would extend to all members of Congress (with a 
``need to know'' SGI). This change would be made because many members 
of Congress are not on NRC oversight committees, yet they may need 
access to SGI because of the presence of nuclear facilities or 
materials in their states or districts. As amended, the language would 
not alter the Commission's current practices in responding to requests 
from members of Congress for access to SGI.
    In addition, the authorization in current Sec.  73.21(c)(1)(ii) 
does not extend to congressional staff. The Commission is not proposing 
to extend the authorization to congressional staff. On a case-by-case 
basis, with explicit authorization from the appropriate NRC office, the 
NRC staff could share SGI with a Congressional staff member with a 
``need to know'' SGI and who otherwise meets the requirements for 
access to such information.
    Section 73.22(b)(1)(iii) renumbers current Sec.  73.21(c)(1)(iii) 
and would be otherwise unchanged.
    Section 73.22(b)(1)(iv) is based on current Sec.  73.21(c)(1)(iv) 
but the word ``representative'' is being made plural to account for the 
fact that more than one representative may be designated under this 
occupational category. The plural form is consistent with similar 
language in the descriptions of occupational categories in current 
Sec.  73.21(c)(1).
    Current Sec.  73.21(c)(1)(v) would be re-numbered as paragraph 
(b)(1)(v) and the description of this occupational category would be 
changed to ``employees'' (which would include the current term 
``member'') of a state or local law enforcement authority who are 
responsible for responding to requests for assistance during safeguards 
or securities emergencies.
    Section 73.22(b)(1)(vi) includes as an occupational category, State 
Radiation Control Program Directors and Homeland Security Advisors or 
their designated representatives. This category corresponds to Sec.  
73.23(b)(1)(iii).
    Section 73.22(b)(1)(vii) is current Sec.  73.21(c)(1)(vi) and 
substitutes the citation of 10 CFR Sec.  2.709(f) for Sec.  2.744(e) 
because the latter citation is outdated.
    Section 73.22(b)(2) contains a statement contained in a recent 
Commission order \9\ that finds that individuals in the occupational 
categories described in Sec.  73.22(b)(1)(ii) through Sec.  
73.22(b)(1)(vii) \10\ are considered to be trustworthy and reliable by 
virtue of their occupational status. For non-governmental individuals 
described in Sec.  73.22(b)(1)(i), a determination of trustworthiness 
and reliability is required prior to granting access to SGI. Discretion 
must be exercised in granting access to these individuals. If there is 
any indication that the recipient would be unwilling or unable to 
provide proper protection for the SGI, they are not authorized to 
receive SGI-M.
---------------------------------------------------------------------------

    \9\ e.g., ``All Licensees Authorized to Manufacture or Initially 
Transfer Items Containing Radioactive Material for Sale or 
Distribution and Possess Certain Radioactive Material of Concern and 
All Other Persons Who Obtain Safeguards Information; Order Imposing 
Requirements for the Protection of Certain Safeguards Information 
(Effective Immediately) (69 FR 3397, 3399; January 23, 2004).
    \10\ Individuals (or in some cases, their designated 
representatives) in the following occupational groups are included: 
State Governors, representatives of the IAEA, employees of state or 
local law enforcement, State Radiation Control Program Directors and 
State Homeland Security Advisors, and individuals to whom disclosure 
is ordered pursuant to 10 CFR 2.709(f). (69 FR 3399; January 23, 
2004).
---------------------------------------------------------------------------

Section 73.22(c) Protection While in Use or Storage

    Section 73.22(c)(1) contains the identical requirement in current 
Sec.  73.21(d), that while in use, matter containing SGI shall be under 
the control of an individual authorized access to SGI.
    Under certain conditions the general control exercised over 
security zones or areas would be considered to meet this requirement. 
Some examples of these areas would be: Alarm stations, guard posts and 
guard ready rooms; engineering or drafting areas if visitors are 
escorted and information is not clearly visible; plant maintenance 
areas if access is restricted and information is not clearly visible; 
administrative offices (e.g., central records or purchasing) if 
visitors are escorted and information is not clearly visible. The 
primary consideration is limiting access to those who have a ``need to 
know'' and are authorized to have access. Section 73.22(c)(2) would be 
revised to limit access to lock combinations.

Section 73.22(d) Preparation and Marking of Documents or Other Matter

    Section 73.22(d) would revise current Sec.  73.21(e) to add in the 
title ``or other matter,'' to be consistent with the language in the 
substantive paragraphs that follow. In addition, a new provision would 
be added to require certification that a document or other matter 
contains SGI and the certification must set forth the name and title of 
the certifying official and the certification date. Also, portion 
marking would be required for correspondence to NRC. Such marking would 
have to be sufficient to allow the recipient to identify and 
distinguish those sections of the document or other matter containing 
the protected information from the information that is otherwise 
unprotected.

Section 73.22(e) Reproduction of Matter Containing Safeguards 
Information

    Section 73.21(f) is renumbered to become Sec.  73.22(e) and the 
text is revised to include direction for the use of digital copiers and 
to delete language regarding destruction of SGI, which has been 
relocated to Sec.  73.22(i).

Section 73.22(f) External Transmission of Documents and Material

    Section 73.22(f)(1) would amend Sec.  73.21(g)(1) to set forth 
detailed requirements for packaging SGI when transmitted outside an 
authorized place of use or storage. These prescriptive requirements are 
consistent with the current practices of nuclear power

[[Page 7203]]

reactor licensees and the Commission now deems it necessary to require 
them to adequately protect SGI or SGI-M when such information is 
transmitted externally.
    Section 73.22(f)(2) would amend Sec.  73.21(g)(2) to conform to 
other changes made by this rulemaking.
    Section 73.22(f)(3) would add language to current Sec.  73.21(g)(3) 
to permit transmission of SGI by protected telecommunication circuits 
(including facsimile) or encryption (Federal Information Processing 
Standard). Both of these means of transmission must be approved by the 
appropriate NRC office.

Section 73.22(g) Processing of SGI on Electronic Systems

    This section updates the title and expands the content of current 
Sec.  73.21(h), ``Use of automatic data processing (ADP) systems,'' to 
refer to the processing of SGI on electronic systems and to add 
specific requirements applicable to the computer processing of SGI.

Section 73.22(h) Removal From Safeguards Information Category

    Section 73.22(h) revises current Sec.  73.21(i) to add further 
restrictions on decontrolling SGI. One proposed change concerns the 
degree of care that must be exercised in removing information from the 
SGI category. The other new requirement would specify that the 
authority to determine that a document may be decontrolled shall be 
exercised only by the NRC or with NRC approval, or in consultation with 
the individual or organization that made the original determination, if 
possible. Removal from the SGI-M category is addressed in Sec.  
73.23(h).

Section 73.22(i) Destruction of Matter Containing SGI

    Section 73.22(i) contains revised language from current Sec.  
73.21(f) to be consistent with the policies set forth in the orders 
regarding the destruction of documents.
    New Section 73.23 Protection of Safeguards Information-Modified 
Handling: Specific Requirements.
    This is a new section which would set forth the specific 
requirements for Safeguards Information--Modified Handling related to 
certain quantities of source and byproduct material and special nuclear 
material of moderate or low strategic significance, except for those 
materials covered under section 73.22. The term ``SGI-M'' would be used 
as the distinguishing marking for SGI relating to certain source, 
byproduct, and special nuclear material licensees. Section 73.23 is 
based on the Commission's orders and threat advisories issued to 
certain byproduct materials licensees.

Section 73.23(a) Information To Be Protected

    Section 73.23(a) sets forth the information to be protected in 
accordance with the handling requirements specified in Sec.  73.23(c) 
through (i). In general terms, information deemed SGI-M is information 
the disclosure of which could reasonably be expected to have a 
significant adverse effect on the health and safety of the public or 
the common defense and security by significantly increasing the 
likelihood of theft, diversion, or sabotage of materials or facilities 
subject to NRC jurisdiction. SGI-M is the designation and marking for 
SGI which is subject to these requirements. The overall measure for 
consideration of SGI-M is the usefulness of the information (security 
or otherwise) to an adversary in planning or attempting a malevolent 
act; the more specific the information, the more likely that it will be 
useful to an adversary.
    Section 73.23(a) states that the specific types of information and 
documents to be protected as SGI-M include security-related 
requirements that must be protected from unauthorized disclosure such 
as protective measures, interim compensatory measures, and additional 
safety features. Sections 73.23(a)(1) through (a)(4) enumerate and 
describe the specific categories of SGI-M to be protected. These 
categories of information are based on those proposed in Sec.  
73.22(a)(1) through (a)(5), as applicable, which in turn update the 
types of information specified in current Sec.  73.21(b)(1) through 
(b)(4). In reference to proposed Sec.  73.23(a)(3)(i), regarding 
portions of certain inspection reports, evaluations, audits, or 
investigations, detailed information regarding defects, weaknesses or 
vulnerabilities is generally not released because identical 
circumstances may apply to licensees or applicants employing similar 
security measures. Section 73.23(a)(4) references correspondence as it 
pertains to this section.
    Section 73.23(a)(5) would be new and would reflect the authority of 
the Commission under section 147a of the AEA to designate as SGI such 
other information as the Commission may determine by order or 
regulation could reasonably be expected to have a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of theft, 
diversion, or sabotage of material or a facility (within the scope of 
Sec.  73.22). The Commission, may from time to time, exercise its 
authority under section 147.a.\11\ of the AEA to define additional 
information as SGI and the public and other stakeholders would have 
notice as to what these additional definitions of SGI are, through 
orders or new regulations, that would specifically define SGI.
---------------------------------------------------------------------------

    \11\ In the exercise of this authority, the Commission would 
make certain determinations and apply the minimum restrictions 
necessary to protect SGI.
---------------------------------------------------------------------------

    Section 73.23(b)(1) addresses conditions for access to SGI-M. 
Authorization for access to SGI-M by licensee employees, agents, or 
contractors must be based on both an appropriate ``need to know'' 
determination by the licensee, as well as a determination concerning 
the trustworthiness and reliability of individuals having access to the 
information. Employees of an organization associated with the 
licensee's company, for example, a parent company, may be considered as 
employees of the licensee for access purposes. A recipient of SGI-M 
should be made aware that the information is SGI-M and those having 
access to it are subject to the requirements for its protection as well 
as civil and criminal sanctions for mishandling the information.
    Section 73.23(b)(1)(ii) through (vi) describes occupational groups 
who are deemed to be trustworthy and reliable by virtue of their 
employment status. For non-governmental individuals in Sec.  
73.23(b)(1)(i) and (vii), a determination of trustworthiness and 
reliability is required. Discretion must be exercised in granting 
access to these individuals. If there is any indication that the 
recipient would be unwilling or unable to provide proper protection of 
the SGI-M, they are not authorized to receive SGI-M.
    Section 73.23(b)(1)(ii) is identical to the current Sec.  
73.21(c)(1)(ii), except the phrase ``a duly authorized committee of'' 
[the Congress] would be deleted. Under the Commission's current 
regulations in Sec.  73.21(c)(1)(ii), a member of a ``duly authorized 
committee of the Congress'' with a ``need to know'' SGI is given access 
to such information. This section of the regulations does not set forth 
the meaning of a ``duly authorized committee.'' The deletion in the 
proposed rule of the phrase ``a duly authorized committee'' [of the 
Congress] would mean that the authorization would extend to all members 
of Congress (with a ``need to know'' SGI-

[[Page 7204]]

M). This change would be made because many members of Congress are not 
on NRC oversight committees, yet may need access to SGI-M because 
nuclear facilities or materials are located in their states or 
districts. As amended, the language would not alter the Commission's 
current practices in responding to requests from members of Congress 
for access to SGI.
    In addition, the authorization in current Sec.  73.21(c)(1)(ii) 
does not extend to Congressional staff. The Commission is not proposing 
to extend the authorization to Congressional staff. On a case-by-case 
basis, with explicit authorization from the appropriate NRC office, the 
NRC staff could share SGI-M with a Congressional staff member with a 
``need to know'' SGI and who otherwise meets the requirements for 
access to such information.
    Section 73.23(b)(1)(iii) corresponds to Sec.  73.22(b)(1)(iii), 
which includes the Governor of a state or designated representatives as 
an occupational category presumed to be trustworthy and reliable for 
access to SGI.
    Section 73.23(b)(1)(iv) is based on Sec.  73.21(c)(1)(iv) and the 
only change is to make ``representative'' plural because that would be 
consistent with language for other occupational categories in which the 
plural form is used.
    Section 73.23(b)(1)(v) corresponds to proposed Sec.  
73.22(b)(1)(v), in which the description of this occupational category 
would be changed to ``employees'' (which would include the current term 
``member'') of a state or local law enforcement authority who are 
responsible for responding to requests for assistance during safeguards 
or securities emergencies.
    Section 73.23(b)(1)(vi) is the same occupational category of 
individuals in Sec.  73.22(b)(1)(vi). Because homeland security 
advisors is the correct title of the individuals to be included in this 
occupational category, that title is contained in proposed rule text.
    Section 73.23(b)(1)(vii) corresponds to proposed Sec.  
73.22(c)(1)(vi), which is based on current Sec.  73.21(c)(1)(vi). As 
proposed, this paragraph substitutes the citation of 10 CFR 2.709(f) 
for Sec.  2.744(e) because the latter citation is outdated.
    The subject of Sec.  73.23(c) is protection of SGI-M while in use 
or storage. While in use, SGI-M shall be under the control of an 
individual authorized access to Safeguards Information Modified 
Handling. This requirement is satisfied if the SGI-M is attended by an 
authorized individual in certain locations even though the information 
is in fact not constantly being used. Examples of such locations 
include: Engineering or drafting areas, plant maintenance areas, or 
administrative offices (e.g., central records or purchasing) if 
visitors are escorted and information is not clearly visible in these 
areas. Under certain conditions, the general control exercised over 
occupied security zones or areas would be considered to meet this 
requirement. SGI-M, therefore, within alarm stations or within 
continuously manned guard posts or ready rooms need not be locked in 
file drawers or storage containers. The primary consideration is 
limiting access to those who have a ``need to know'' and are otherwise 
authorized to have access.
    Section 73.23(d) sets forth requirements for the preparation and 
marking of documents designated as SGI-M. Although the NRC defines what 
specific byproduct material information constitutes SGI-M, originators 
of documents are responsible for designating those documents that 
contain such information. All documents containing SGI-M in use or 
storage shall be marked in accordance with the requirements of Sec.  
73.23(d). As stated in current Sec.  73.21(a) and by order,\12\ since 
information protection procedures employed by State and local police 
forces are deemed to meet NRC requirements, documents in the possession 
of these agencies need not be marked as set forth in this paragraph.
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    \12\ See, for example, the Order cited earlier as published in 
the Federal Register on January 23, 2004 (69 FR 3398).
---------------------------------------------------------------------------

    Section 73.23(e) contains requirements governing the reproduction 
of matter containing SGI-M. Newer digital copiers which scan and retain 
images of documents represent a security concern. If the copier is 
retaining SGI-M information in memory, the copier cannot be connected 
to a network. It should be placed in a location that is cleared and 
controlled for the authorized processing of SGI-M information. 
Different copiers have different capabilities, including some which 
come with features that allow the memory to be erased. Each copier 
would have to be examined from a physical security perspective.
    Section 73.23(f) concerns the external transmission of documents 
and material. Paragraph (f)(1) addresses the transmittal of Safeguards 
Information outside an authorized place of use and storage, requiring 
two sealed envelopes or wrappers and marking of the envelopes or 
wrappers. Within a facility, SGI-M may be transmitted using a single 
opaque envelope. It may also be transmitted within a facility without 
single or double wrapping, provided adequate measures are taken to 
protect the material against unauthorized disclosure. Individuals 
transporting SGI-M should retain the documents in their personal 
possession at all times or ensure that the information is appropriately 
wrapped and also secured to preclude compromise by an unauthorized 
individual. SGI-M may be transported by any commercial delivery company 
that provides nationwide overnight service with computer tracking 
features, U.S. first class, registered, express, or certified mail, or 
by any individual authorized access pursuant to the requirements in 
Sec.  73.23(b).
    Section 73.23(g) describes the requirements for processing SGI-M on 
electronic systems. The basic objective of the restrictions is to 
prevent access and retrieval of stored SGI-M by unauthorized 
individuals, particularly from remote terminals. Specific files 
containing SGI-M will be password protected to preclude access by an 
unauthorized individual.
    Removal from the SGI-M category is addressed in Sec.  73.23(h), 
which contains requirements which are identical to those in Sec.  
73.22(h) for the removal from the SGI category. Thus, these 
requirements would specify when information is to be removed from the 
SGI-M category, the degree of care to be exercised in decontrolling a 
document, and the authority to determine that a document may be 
decontrolled.
    Section 73.23(i) contains detailed requirements for destruction of 
matter containing SGI-M. These requirements cover methods to destroy 
documents containing SGI-M and set forth characteristics of a document 
which would be considered completely destroyed.
    Section 73.57 contains requirements for criminal history checks of 
individuals granted unescorted access to a nuclear power facility or 
access to Safeguards Information by power reactor licensees.
    Section 73.57(b)(2)(i) has been revised to include reference to 
Sec.  73.22.
    The language in Sec.  73.57(b)(2)(ii), containing an exception to 
the fingerprinting requirement for the occupational categories of 
members of Congress and Governors of States, would be revised to be 
consistent with the proposed language in Sec.  73.22(b)(1)(ii) and 
(iii) describing these same occupational categories.

Section 76.113 Formula Quantities of Strategic Special Nuclear 
Material--Category 1

    The language of paragraph (c) would be changed to include a 
citation to new

[[Page 7205]]

Sec.  73.22, Protection of Safeguards Information: Specific 
Requirements.

Section 76.115 Special Nuclear Material of Moderate Strategic 
Significance--Category II

    The language of this section would be changed to add a new 
paragraph (d) to state that the requirements for the protection of 
Safeguards Information pertaining to special nuclear material of 
moderate strategic significance (Category II) are contained in 
Sec. Sec.  73.21 and 73.22.

Section 76.117 Special Nuclear Material of Low Strategic Significance--
Category III

    The language of this section would be changed to add a new 
paragraph (c) to state that the requirements for the protection of 
Safeguards Information pertaining to special nuclear material of low 
strategic significance (Category III) are contained in Sec. Sec.  73.21 
and 73.22.

Section 150.15 Persons Not Exempt

    A change is also being proposed to part 150, ``Exemptions and 
Continued Regulatory Authority in Agreement States and In Offshore 
Waters Under Section 274.'' Paragraph (a)(9) would be added to Sec.  
150.15, ``Persons not exempt,'' to include the protection of SGI in the 
list of activities by persons in Agreement States that are not exempt 
from the Commission's licensing and regulatory requirements.

VI. Criminal Penalties

    For the purpose of section 223 of the Atomic Energy Act (AEA), the 
Commission is proposing to amend 10 CFR parts 2, 30, 40, 50, 52, 60, 
63, 70, 71, 72, 73, 76, and 150 under one or more of sections 147 161b, 
161i, or 161o of the AEA. Willful violations of the rule would be 
subject to criminal enforcement.

VII. Agreement State Issues

    The proposed changes to parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 
72, 73, 76, and 150 are considered to be Category NRC compatibility and 
therefore are areas of exclusive NRC authority. However, the proposed 
rule has been provided to the Agreement States for their review and 
comment prior to publication of draft rule text on the NRC Web site and 
the publication of the proposed rule in the Federal Register. The 
Agreement States of Illinois and Washington commented on the proposed 
rule. Both states expressed concern about the breadth of rule text 
reflecting the Commission's authority to prohibit the unauthorized 
disclosure of SGI relating to such quantities of special nuclear 
material, source, and byproduct material as the Commission determines 
to be significant to the public health and safety or the common defense 
and security. In response to this concern, the Commission notes that it 
needs such broad authority to adequately protect SGI and section 147 of 
the AEA provides such authority to the Commission.

VIII. Plain Language

    The Presidential Memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing,'' directed that the Government's 
writing be in plain language. This memorandum was published June 10, 
1998 (63 FR 31883). The NRC requests comments on this proposed rule 
specifically with respect to the clarity and effectiveness of the 
language used. Comments should be sent to the address listed under the 
heading ADDRESSES above.

IX. Voluntary Consensus Standards

    The National Technology Transfer Act of 1995 (Pub. L. 104-113) 
requires that Federal agencies use technical standards that are 
developed or adopted by voluntary consensus standards bodies unless the 
use of such a standard is inconsistent with applicable law or otherwise 
impractical. In this proposed rule, the NRC is using the following 
Government-unique standard: National Institute of Standards and 
Technology, Federal Information Processing Standard [FIPS] PUB-140-2, 
``Security Requirements for Cryptographic Modules,'' May 25, 2001. The 
NRC has determined that using this Government-unique standard is 
justified because no voluntary consensus standard has been identified 
that could be used instead. In addition, this Government-unique 
standard was developed using the same procedures used to create a 
voluntary consensus standard.

X. Finding of No Significant Impact: Environmental Assessment

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A of 10 CFR part 51, that this rule, if adopted, would not be a 
major Federal action significantly affecting the quality of the human 
environment and, therefore, an environmental impact statement is not 
required. The basis for this determination is that the proposed rule 
relates to the designation, handling and protection of Safeguards 
Information and the collection of information on which a determination 
to grant individuals access to this information is based. The 
determination of this environmental assessment is that there will be no 
significant environmental impacts from this action. However, the 
general public should note that the NRC is seeking public 
participation. Comments on any aspect of the environmental assessment 
may be submitted to the NRC as indicated under the ADDRESSES heading.
    The NRC has sent a copy of the environmental assessment and 
proposed rule to every State Liaison Officer and requested comments on 
the environmental assessment.

XI. Paperwork Reduction Act Statement

    This proposed rule amends information collection requirements that 
are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). This rule has been submitted to the Office of Management and 
Budget for review and approval of the information collection 
requirements.
    Type of Submission, New or Revision: Revision.
    The Title of the Information Collection: 10 CFR 73, ``Protection of 
Safeguards Information.''
    The Form Number if Applicable: Not applicable.
    How often the collection is required: Licensees must mark and 
protect from unauthorized disclosure documents containing Safeguards 
Information or Safeguards Information designated for modified handling, 
on a continuous basis.
    Who Will be Required or Asked to Report: Power reactor licensees 
and applicants, research and test reactor licensees and applicants, 
certificate holders and applicants, fuel cycle facility licensees and 
applicants, and certain other byproduct, source, and special nuclear 
material licensees and applicants.
    An Estimate of the Number of Annual Responses: None.
    The Estimated Number of Annual Respondents: 646 recordkeepers.
    An Estimate of the Total Number of Hours Needed Annually to 
Complete the Requirement or Request: 5,926 (an average of 9 hours per 
recordkeeper).
    Abstract: The NRC is amending its regulations for the protection of 
Safeguards Information to protect it from inadvertent release and 
unauthorized disclosure which might compromise the security of nuclear 
facilities and materials. The proposed amendments would be consistent 
with Commission practices reflected in previously issued Orders and 
advisories. The proposed amendments would affect certain licensees, 
information, and materials not currently

[[Page 7206]]

specified in the regulations but which are within the scope of the 
Commission's statutory authority.
    The U.S. Nuclear Regulatory Commission is seeking public comment on 
the potential impact of the information collections contained in this 
proposed rule and on the following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility?
    2. Is the estimate of burden accurate?
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the information collection be minimized, 
including the use of automated collection techniques?
    A copy of the OMB clearance package may be viewed free of charge at 
the NRC Public Document Room, One White Flint North, 11555 Rockville 
Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and 
rule are available at the NRC worldwide Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html
 for 60 days after the 

signature date of this notice and are also available at the RuleForum 
site, http://ruleforum.llnl.gov.

    Send comments on any aspect of these proposed information 
collections, including suggestions for reducing the burden and on the 
above issues, by March 14, 2005 to the Records and FOIA/Privacy 
Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, or by Internet electronic mail to 
[email protected] and to the Desk Officer, John A. Asalone, Office 

of Information and Regulatory Affairs, NEOB-10202, (3150-0002), Office 
of Management and Budget, Washington, DC 20503. Comments received after 
this date will be considered if it is practical to do so, but assurance 
of consideration cannot be given to comments received after this date. 
You may also e-mail comments to [email protected] or 
comment by telephone at (202) 395-4650.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

XII. Regulatory Analysis

    The Commission has prepared a draft regulatory analysis on this 
proposed regulation. The analysis examines the costs and benefits of 
the alternatives considered by the Commission. The regulatory analysis 
is available for inspection in the NRC Public Document Room, 11555 
Rockville Pike, Rockville, MD 20852. Single copies of the analysis may 
be obtained from the Office of the General Counsel, U.S. Nuclear 
Regulatory Commission, at 301-415-1633 or by e-mail at [email protected] The 
Commission requests public comment on the draft regulatory analysis. 
Comments on the draft analysis may be submitted to the NRC as indicated 
under the ADDRESSES heading.

XIII. Regulatory Flexibility Analysis

    The NRC is seeking public comment on the potential impact of the 
proposed rule on small entities. The NRC particularly desires comment 
from small entities (i.e., small businesses, small organizations, and 
small jurisdictions under the Regulatory Flexibility Act) as to how the 
proposed regulations will affect them and how the regulations may be 
tiered or otherwise modified to impose less stringent requirements on 
small entities while still adequately protecting the public health and 
safety or the common defense and security. Those small entities that 
offer comments on how the proposed regulations could be modified to 
take into account the differing needs of small entities should 
specifically discuss--
    (a) The licensee's size and how the proposed regulations would 
result in a significant economic burden upon the licensee as compared 
to a larger licensee;
    (b) How the proposed regulations could be modified to take into 
account the licensee's differing needs or capabilities;
    (c) The benefits that would accrue, or the detriments that would be 
avoided, if the proposed regulations were modified as suggested by the 
licensee;
    (d) How the proposed regulations, as modified, would more closely 
equalize the impact of NRC regulations or create more equal access to 
the benefits of Federal programs as opposed to providing some special 
advantages to any particular individual or group;
    (e) How the proposed regulation, as modified, would still 
adequately protect public health and safety or the common defense and 
security.
    Send comments to the NRC as indicated under the ADDRESSES heading.
    The Commission is preparing an initial regulatory analysis of the 
impact of this proposed rule on small entities. The NRC requests 
written comments on the analysis. Send comments to the NRC as indicated 
under the ADDRESSES heading.

XIV. Backfit Analysis

    The Commission has concluded, on the basis of the documented 
evaluation in the draft regulatory analysis, that the majority of the 
requirements in the proposed rule are not backfits as defined in 10 CFR 
50.109(a)(4)(ii), 70.76(a)(4)(iii), 72.62, and 76.76(a)(4)(ii). The 
Commission has also concluded that the requirements in the rule that 
constitute backfits are necessary to insure that the facilities and 
materials described in the proposed rule provide adequate protection to 
the public health and safety and are in accord with the common defense 
and security, as applicable. Therefore, a backfit analysis is not 
required and the cost-benefit standards of 10 CFR 50.109(a)(3), 70.76, 
72.62, and 76.76, do not apply. The documented evaluation in the draft 
Regulatory Analysis includes a statement of the objectives of and the 
reasons for the backfits that would be required by the proposed rule 
and sets forth the Commission's conclusion that these backfits are not 
subject to the cost-benefit standards of 10 CFR 50.109(a)(3), 70.76, 
72.62, and 76.76.

List of Subjects

10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
materials, Nuclear power plants and reactors, Penalties, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

10 CFR Part 30

    Byproduct material, Criminal penalties, Government contracts, 
Intergovernmental relations, Isotopes, Nuclear materials, Radiation 
protection, Reporting and recordkeeping requirements.

10 CFR Part 40

    Criminal penalties, Government contracts, Hazardous materials 
transportation, Nuclear materials, Reporting and recordkeeping 
requirements, Source material, Uranium.

10 CFR Part 50

    Antitrust, Classified information, Criminal penalties, Fire 
protection, Intergovernmental relations, Nuclear power plants and 
reactors, Radiation protection, Reactor siting criteria,

[[Page 7207]]

Reporting and recordkeeping requirements.

10 CFR Part 52

    Administrative practice and procedure, Antitrust, Backfitting, 
Combined license, Early site permit, Emergency planning, Fees, 
Inspection, Limited work authorization, Nuclear power plants and 
reactors, Probabilistic risk assessment, Prototype, Reactor siting 
criteria, Redress of site, Reporting and recordkeeping requirements, 
Standard design, Standard design certification.

10 CFR Part 60

    Criminal penalties, High-level waste, Nuclear materials, Nuclear 
power plants and reactors, Reporting and recordkeeping requirements, 
Waste treatment and disposal.

10 CFR Part 63

    Criminal penalties, High-level waste, Nuclear power plants and 
reactors, Reporting and recordkeeping requirements, Waste treatment and 
disposal.

10 CFR Part 70

    Criminal penalties, Hazardous materials transportation, Material 
control and accounting, Nuclear materials, Packaging and containers, 
Radiation protection, Reporting and recordkeeping requirements, 
Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 71

    Criminal penalties, Hazardous materials transportation, Nuclear 
materials, Packaging and containers, Reporting and recordkeeping 
requirements.

10 CFR Part 72

    Administrative practice and procedure, Criminal penalties, Manpower 
training programs, Nuclear materials, Occupational safety and health, 
Penalties, Radiation protection, Reporting and recordkeeping 
requirements, Security measures, Spent fuel, Whistleblowing.

10 CFR Part 73

    Criminal penalties, Export, Hazardous materials transportation, 
Import, Nuclear materials, Nuclear power plants and reactors, Reporting 
and recordkeeping requirements, Security measures.

10 CFR Part 76

    Certification, Criminal penalties, Radiation protection, Reporting 
and recordkeeping requirements, Security measures, Special nuclear 
material, Uranium enrichment by gaseous diffusion.

10 CFR Part 150

    Criminal penalties, Hazardous materials transportation, 
Intergovernmental relations, Nuclear materials, Reporting and 
recordkeeping requirements, Security measures, Source material, Special 
nuclear material.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to 
adopt the following amendments to 10 CFR Parts 2, 30, 40, 50, 52, 60, 
63, 70, 71, 72, 73, 76 and 150.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

    1. The authority citation for part 2 continues to read as follows:

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note). Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 
104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. 
L. 97--425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)), sec. 
102, Pub. L. 91--190, 83 Stat. 853, as amended (42 U.S.C. 4332); 
sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 
2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 105, 
183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 
2132, 2133, 2134, 2135, 2233, 2239). Sections 2.105 also issued 
under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 
2.200--2.206 also issued under secs. 161 b, i, o, 182, 186, 234, 68 
Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), 
(i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). 
Section 2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as 
amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 
U.S.C. 2461 note). Sections 2.600-2.606 also issued under sec. 102, 
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 
2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 
2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also 
issued under secs. 135, 141, Pub. L. 97--425, 96 Stat. 2232, 2241 
(42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 
68 Stat. 936, as amended (42 U.S.C. 2133), and 5 U.S.C. 552. 
Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 
2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L. 85-256, 
71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued 
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-
425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued under 
sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued under 
sec. 184 (42 U.S.C. 2234) and sec. 189, 68 stat. 955 (42 U.S.C. 
2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 84 Stat. 
1473 (42 U.S.C. 2135).

    2. Paragraph (f) of Sec.  2.709 is amended to read as follows:


Sec.  2.709  Discovery against NRC staff.

* * * * *
    (f) In the case of requested documents and records (including 
Safeguards Information referred to in sections 147 and 181 of the 
Atomic Energy Act, as amended) exempt from disclosure under Sec.  
2.390, but whose disclosure is found by the presiding officer to be 
necessary to a proper decision in the proceeding, any order to the 
Executive Director for Operations or a delegate of the Executive 
Director for Operations, to produce the document or records (or any 
other order issued ordering production of the document or records) may 
contain any protective terms and conditions (including affidavits of 
non-disclosure) as may be necessary and appropriate to limit the 
disclosure to parties in the proceeding, to interested States and other 
governmental entities participating under Sec.  2.315(c), and to their 
qualified witnesses and counsel. When Safeguards Information protected 
from disclosure under section 147 of the Atomic Energy Act, as amended, 
is received and possessed by a party other than the Commission staff, 
it must also be protected according to the requirements of Sec.  73.21 
and the requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable. The presiding officer may also prescribe additional 
procedures to effectively safeguard and prevent disclosure of 
Safeguards Information to unauthorized persons with minimum impairment 
of the procedural rights which would be available if Safeguards 
Information were not involved. In addition to any other sanction that 
may be imposed by the presiding officer for violation of an order 
issued pursuant to this paragraph, violation of an order pertaining to 
the disclosure of Safeguards Information protected from disclosure 
under section 147 of the Atomic Energy Act, as amended, may be subject 
to a civil penalty imposed under Sec.  2.205. For the purpose of 
imposing the criminal penalties contained in section 223 of the Atomic 
Energy Act, as amended, any order issued pursuant to this paragraph 
with respect to Safeguards Information is considered to be an order 
issued under section 161.b. of the Atomic Energy Act.
* * * * *

[[Page 7208]]

    3. In Sec.  2.1003, paragraph (a)(4)(iii) is revised to read as 
follows:


Sec.  2.1003  Availability of material.

    (a) * * *
    (4) * * *
    (iii) Which constitutes Safeguards Information under Sec.  73.21 
and the requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.
* * * * *
    4. In Sec.  2.1010, paragraph (b)(6) is revised to read as follows:


Sec.  2.1010  Pre-License application presiding officer.

* * * * *
    (b) * * *
    (6) Whether the material should be disclosed under a protective 
order containing such protective terms and conditions (including 
affidavits of nondisclosure) as may be necessary and appropriate to 
limit the disclosure to potential participants, interested governmental 
participants and parties in the proceeding, or to their qualified 
witnesses and counsel. When Safeguards Information, protected from 
disclosure under section 147 of the Atomic Energy Act of 1954, as 
amended, is received and possessed by a potential party, interested 
governmental participant, or party, other than the Commission staff, it 
shall also be protected according to the requirements of Sec.  73.21 
and the requirements in Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable. The Pre-License Application Presiding Officer may also 
prescribe such additional procedures as will effectively safeguard and 
prevent disclosure of Safeguards Information to unauthorized persons 
with minimum impairment of the procedural rights which would be 
available if Safeguards Information were not involved. In addition to 
any other sanction that may be imposed by the Pre-License Application 
Presiding Officer for violation of an order pertaining to the 
disclosure of Safeguards Information protected from disclosure under 
section 147 of the Atomic Energy Act of 1954, as amended, the entity in 
violation may be subject to a civil penalty imposed pursuant to Sec.  
2.205. For the purpose of imposing the criminal penalties contained in 
section 223 of the Atomic Energy Act of 1954, as amended, any order 
issued pursuant to this paragraph with respect to Safeguards 
Information shall be deemed to be an order issued under section 161b of 
the Atomic Energy Act of 1954, as amended.
* * * * *

PART 30--RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF 
BYPRODUCT MATERIAL

    5. The authority citation for part 30 continues to read as follows:

    Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). 
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42 
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat. 
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    6. In Sec.  30.32, paragraph (j) is added to read as follows:


Sec.  30.32  Application for specific licenses.

* * * * *
    (j) Each applicant for a license for byproduct material in 
quantities determined by the Commission through order or regulation to 
be significant to the public health and safety or the common defense 
and security who prepares a physical security plan, security procedures 
for emergencies, or guard qualification and training procedures, shall 
protect the plans, procedures, and other related Safeguards Information 
against unauthorized disclosure in accordance with the requirements in 
Sec. Sec.  73.21 and 73.23 of this chapter, as applicable.
    7. In Sec.  30.34, paragraph (j) is added to read as follows:


Sec.  30.34  Terms and conditions of licenses.

* * * * *
    (j) Each licensee subject to the requirements of part 73 of this 
chapter shall ensure that physical security plans, security procedures 
for emergencies, guard qualification and training procedures and other 
related Safeguards Information are protected against unauthorized 
disclosure in accordance with the requirements in Sec. Sec.  73.21 and 
73.23 of this chapter, as applicable.

PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL

    8. The authority citation for part 40 continues to read as follows:

    Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, 
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as 
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 
2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 40.7 
also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 
5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 
U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 Stat. 
954, as amended (42 U.S.C. 2234). Section 40.71 also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    9. In Sec.  40.31, paragraph (m) is added to read as follows:


Sec.  40.31  Application for specific licenses.

* * * * *
    (m) Each applicant for a license for source material in quantities 
determined by the Commission through order or regulation to be 
significant to the public health and safety or the common defense and 
security who prepares a physical security plan, security procedures for 
emergencies, or guard qualification and training procedures, shall 
protect the plans, procedures, and other related Safeguards Information 
against unauthorized disclosure in accordance with the requirements in 
Sec.  73.21 and the requirements of Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable.
    10. In Sec.  40.41, paragraph (h) is added to read as follows:


Sec.  40.41  Terms and conditions of licenses.

* * * * *
    (h) Each licensee subject to the requirements of part 73 of this 
chapter shall ensure that physical security plans, security procedures 
for emergencies, guard qualification and training procedures and other 
related Safeguards Information are protected against unauthorized 
disclosure in accordance with the requirements in Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

    11. The authority citation for part 50 continues to read as 
follows:

    Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); 
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 50.7 also 
issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 
5841). Section 50.10 also issued under secs. 101, 185, 68

[[Page 7209]]

Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-
190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 
50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued 
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued 
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 
50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 
U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 
(42 U.S.C. 2152). Sections 50.80--50.81 also issued under sec. 184, 
68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued 
under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

    12. In Sec.  50.34, paragraph (e) is revised to read as follows:


Sec.  50.34  Contents of applications; technical information.

* * * * *
    (e) Each applicant for a license to operate a production or 
utilization facility, who prepares a physical security plan, a 
safeguards contingency plan, or a guard qualification and training 
plan, shall protect the plans and other related Safeguards Information 
against unauthorized disclosure in accordance with the requirements in 
Sec.  73.21 and the requirements in Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable.
* * * * *
    13. In Sec.  50.54, paragraph (v) is revised to read as follows:


Sec.  50.54  Conditions of licenses.

* * * * *
    (v) Each licensee subject to the requirements of part 73 of this 
chapter shall ensure that physical security, safeguards contingency and 
guard qualification and training plans and other related Safeguards 
Information are protected against unauthorized disclosure in accordance 
with the requirements in Sec.  73.21 and the requirements in Sec.  
73.22 or Sec.  73.23 of this chapter, as applicable.
* * * * *

PART 52--EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND 
COMBINED LICENSES FOR NUCLEAR POWER PLANTS

    14. The authority citation for part 52 continues to read as 
follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as 
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued 
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42 
U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub. 
L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 
150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 
Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 
2282).

    15. In Sec.  52.47, paragraph (c) is added to read as follows:


Sec.  52.47  Contents of applications.

* * * * *
    (c) Each applicant for a standard design certification under this 
part shall protect Safeguards Information against unauthorized 
disclosure in accordance with the requirements in Sec. Sec.  73.21 and 
73.22 of this chapter, as applicable.
    16. In Sec.  52.79, paragraph (e) is added to read as follows:


Sec.  52.79  Contents of application; technical information.

* * * * *
    (e) Each applicant for a combined license under this subpart shall 
protect Safeguards Information against unauthorized disclosure in 
accordance with the requirements in Sec. Sec.  73.21 and 73.22 of this 
chapter, as applicable.

PART 60--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC 
REPOSITORIES

    17. The authority citation for part 60 continues to read as 
follows:

    Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2228, as amended (42 U.S.C. 10134, 10141), and 
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 
1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

    18. In Sec.  60.21, paragraph (d) is added to read as follows:


Sec.  60.21  Content of application.

* * * * *
    (d) The applicant for a license to receive and possess source, 
special nuclear, and byproduct material at a geologic repository 
operations area sited, constructed, or operated in accordance with the 
Nuclear Waste Policy Act of 1982 shall protect as Safeguards 
Information in accordance with Sec.  73.21 and the requirements of 
Sec.  73.22 or Sec.  73.23 of this chapter, as applicable, the detailed 
security measures for physical protection of high-level radioactive 
waste, including the design for physical protection, the safeguards 
contingency plan, the security organization personnel training and 
qualification plan, and other related security information.
    19. In Sec.  60.42, paragraph (d) is added to read as follows:


Sec.  60.42  Conditions of license.

* * * * *
    (d) The licensee shall ensure that the detailed security measures 
for physical protection of high-level radioactive waste, including the 
design for physical protection, the safeguards contingency plan, the 
security organization personnel training and qualification plan and 
other related security information is protected against unauthorized 
disclosure in accordance with the requirements in Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.

PART 63--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC 
REPOSITORY AT YUCCA MOUNTAIN, NEVADA

    20. The authority citation for part 63 continues to read as 
follows:

    Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2238, as amended (42 U.S.C. 10134, 10141), and 
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 
1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

    21. In Sec.  63.21, paragraph (d) is added to read as follows:


Sec.  63.21  Content of application.

* * * * *
    (d) The applicant for a license to receive and possess source, 
special nuclear, and byproduct material at a geologic repository at 
Yucca Mountain, Nevada, shall protect as Safeguards Information in 
accordance with Sec. Sec.  73.21 and 73.22 of this chapter, the 
detailed security measures for physical protection of high-level 
radioactive waste, including the design for physical protection, the 
safeguards contingency plan, and security organization personnel 
training and qualification plan and other related Safeguards 
Information.
    22. In Sec.  63.42, paragraph (e) is added to read as follows:

[[Page 7210]]

Sec.  63.42  Conditions of license.

* * * * *
    (e) The licensee shall ensure that the detailed security measures 
for physical protection of high-level radioactive waste, including the 
design for physical protection, the safeguards contingency plan, and 
security organization personnel training and qualification plan and 
other related Safeguards Information is protected against unauthorized 
disclosure in accordance with the requirements in Sec. Sec.  73.21 and 
73.22 of this chapter, as applicable.

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

    23. The authority citation for part 70 continues to read as 
follows:

    Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, (42 U.S.C. 
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended, 
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended 
by Pub.L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec. 
1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Sections 70.1(c) and 
70.20a(b) also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 
2232, 2241 (42 U.S.C. 10155, 10161). Section 70.7 also issued under 
Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). Section 
70.21(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 
Section 70.31 also issued under sec. 57d, Pub. L. 93-377, 88 Stat. 
475 (42 U.S.C. 2077). Sections 70.36 and 70.44 also issued under 
sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 70.81 
also issued under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 
2237). Section 70.82 also issued under sec. 108, 68 Stat. 939, as 
amended (42 U.S.C. 2138).

    24. In Sec.  70.22, paragraph (l) is revised and paragraph (o) is 
added to read as follows:


Sec.  70.22  Contents of applications.

* * * * *
    (l) Each applicant for a license to possess, use, transport, or 
deliver to a carrier for transport formula quantities of strategic 
special nuclear material, or more than 100 grams of irradiated reactor 
fuel, who prepares a physical security, safeguards contingency, or 
guard qualification and training plan shall protect these plans and 
other related Safeguards Information against unauthorized disclosure in 
accordance with the requirements in Sec.  73.21 and the requirements of 
Sec.  73.22 or Sec.  73.23 of this chapter, as applicable.
* * * * *
    (o) Each applicant for a license to possess, use, transport or 
deliver to a carrier for transport special nuclear material of low or 
moderate strategic significance, who prepares a physical security plan, 
safeguards contingency plan, or guard qualification and training plan 
shall protect these plans and other related security Information 
against unauthorized disclosure in accordance with the requirements in 
Sec. Sec.  73.21 and 73.23 of this chapter.
    25. In Sec.  70.32, paragraph (j) is revised and paragraph (I) is 
added to read as follows:


Sec.  70.32  Conditions of licenses.

* * * * *
    (j) Each licensee who possesses a formula quantity of strategic 
special nuclear material, or who transports, or delivers to a carrier 
for transport, a formula quantity of strategic special nuclear 
material, special nuclear material of moderate strategic significance, 
or special nuclear material of low strategic significance, or more than 
100 grams of irradiated reactor fuel shall ensure that physical 
security, safeguards contingency, and guard qualification and training 
plans and other related Safeguards Information are protected against 
unauthorized disclosure in accordance with the requirements in Sec.  
73.21 and the requirements of Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable.
* * * * *
    (l) Each licensee who possesses, uses, transports, or delivers to a 
carrier for transport special nuclear material of moderate or low 
strategic significance and who prepares a physical security plan shall 
protect the plan and other related Safeguards Information against 
unauthorized disclosure in accordance with the requirements in 
Sec. Sec.  73.21 and 73.23 of this chapter.

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

    26. The authority citation for part 71 continues to read as 
follows:

    Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat. 
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242, 
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 
Stat. 2750 (44 U.S.C. 3504 note). Section 71.97 also issued under 
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.

    27. Sec.  71.11 is added to read as follows:


Sec.  71.11  Protection of Safeguards Information.

    Each licensee, certificate holder, or applicant for a Certificate 
of Compliance for a transportation package for transport of spent fuel, 
strategic special nuclear material, critical mass of special nuclear 
material, or byproduct material in quantities determined by the 
Commission through order or regulation to be significant to the public 
health and safety or the common defense and security, shall protect 
Safeguards Information against unauthorized disclosure in accordance 
with the requirements in Sec.  73.21 and the requirements of Sec.  
73.22 or Sec.  73.23 of this chapter, as applicable.

PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF 
SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-
RELATED GREATER THAN CLASS C WASTE

    28. The authority citation for Part 72 continues to read as 
follows:

    Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 
184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 
954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 
2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 
688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); 
Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-
486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 
137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, 
Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 
10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 
3504 note). Section 72.44(g) also issued under secs. 142(b) and 
148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 
U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under 
sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 
96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under 
sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 
10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 
117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 
2224 (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are 
also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 
218(a), 96 Stat. 2252 (42 U.S.C. 10198).

    29. In Sec.  72.22, paragraph (f) is added to read as follows:


Sec.  72.22  Contents of application: General and financial 
information.

* * * * *
    (f) Each applicant for a license under this part to receive, 
transfer, and possess power reactor spent fuel, power reactor-related 
Greater than Class C (GTCC) waste, and other radioactive materials 
associated with spent fuel storage in an independent spent fuel storage 
installation (ISFSI) shall protect Safeguards Information against

[[Page 7211]]

unauthorized disclosure in accordance with the requirements in Sec.  
73.21 and the requirements of Sec.  73.22 or Sec.  73.23, as 
applicable.
    30. In Sec.  72.44, paragraph (h) is added to read as follows:


Sec.  72.44  License conditions.

* * * * *
    (h) Each licensee subject to the requirements of part 73 of this 
chapter shall protect Safeguards Information against unauthorized 
disclosure in accordance with the requirements of Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23, as applicable.
    31. In Sec.  72.212, paragraph (b)(5)(v) is re-designated as 
(b)(5)(vi) and a new paragraph (b)(5)(v) is added to read as follows:


Sec.  72.212  Conditions of general license issued under Sec.  72.210.

* * * * *
    (b) * * *
    (5) * * *
    (v) Each general licensee that receives, transfers, and possesses 
power reactor spent fuel, power reactor-related Greater than Class C 
(GTCC) waste, and other radioactive materials associated with spent 
fuel storage shall protect Safeguards Information against unauthorized 
disclosure in accordance with the requirements of Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.
* * * * *
    32. In Sec.  72.236, paragraph (n) is added to read as follows:


Sec.  72.236  Specific requirements for spent fuel storage cask 
approval and fabrication.

* * * * *
    (n) Safeguards Information shall be protected against unauthorized 
disclosure in accordance with the requirements of Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

    33. The authority citation for part 73 continues to read as 
follows:

    Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec. 
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as 
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat. 
2750 (44 U.S.C. 3504 note). Section 73.1 also issued under secs. 
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C, 10155, 
10161). Section 73.37(f) also issued under sec. 301, Pub. L. 96-295, 
94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under 
sec. 606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C. 2169).

    34. In Sec.  73.1, paragraph (b)(7) is revised to read as follows:


Sec.  73.1  Purpose and scope.

* * * * *
    (b) * * *
    (7) This part prescribes requirements for the protection of 
Safeguards Information (including the designation or marking: 
Safeguards Information--Modified Handling) in the hands of any person, 
whether or not a licensee of the Commission, who produces, receives, or 
acquires that information.
* * * * *
    35. In Sec.  73.2, new definitions Individual Authorized Access to 
Safeguards Information, Individual Authorized Access to Safeguards 
Information--Modified Handling, Safeguards Information--Modified 
Handling Requirements and Trustworthiness and reliability, are added in 
alphabetical order and the definition of Safeguards Information is 
revised to read as follows:


Sec.  73.2  Definitions.

* * * * *
    Individual Authorized Access to Safeguards Information is an 
individual authorized to have access to and handle such information 
pursuant to the requirements of Sec. Sec.  73.21 and 73.22 of this 
chapter.
    Individual Authorized Access to Safeguards Information--Modified 
Handling Requirements is an individual authorized to have access to and 
handle such information pursuant to the requirements of Sec. Sec.  
73.21 and 73.23 of this chapter.
* * * * *
    Safeguards Information means information not otherwise classified 
as National Security Information or Restricted Data which specifically 
identifies detailed control and accounting procedures for special 
nuclear material in quantities determined by the Commission through 
order or regulation to be significant to the public health and safety 
or the common defense and security; detailed security measures 
(including security plans, procedures, and equipment) for the physical 
protection of source, byproduct, or special nuclear material in 
quantities determined by the Commission through order or regulation to 
be significant to the public health and safety or the common defense 
and security; security measures for the physical protection and 
location of certain plant equipment vital to the safety of production 
or utilization facilities; and any other information the unauthorized 
disclosure of which, as determined by the Commission through order or 
regulation, could reasonably be expected to have a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of radiological 
sabotage or theft or diversion of source, byproduct, or special nuclear 
material.
    Safeguards Information--Modified Handling is the designation or 
marking applied to Safeguards Information which the Commission has 
determined requires handling requirements modified from those for other 
Safeguards Information.
* * * * *
    Trustworthiness and reliability means positive attributes as an 
indication of an individual's background and character demonstrating a 
high level of confidence that the individual can be properly authorized 
to have access to and handle Safeguards Information and Safeguards 
Information--Modified Handling.
* * * * *
    36. Section 73.21 is revised to read as follows:


Sec.  73.21  Protection of Safeguards Information: Performance 
Requirements.

    (a) General performance requirement. (1) Each licensee, applicant, 
or other person who produces, receives, or acquires Safeguards 
Information shall ensure that it is protected against unauthorized 
disclosure. To meet this general performance requirement, such 
licensees, applicants, or other persons subject to this section shall:
    (i) For Safeguards Information related to power reactors, licensees 
authorized to possess a formula quantity of strategic special nuclear 
material, transportation of or delivery to a carrier for transportation 
of a formula quantity of strategic special nuclear material or more 
than 100 grams of irradiated reactor fuel, and fuel cycle facilities 
required to implement security measures, establish, implement and 
maintain an information protection system that includes the applicable 
measures specified in Sec.  73.22.
    (ii) For Safeguards Information related to certain quantities of 
source and byproduct material and special nuclear material of moderate 
or low strategic significance, establish, implement, and maintain an 
information protection system that includes the measures specified in 
Sec.  73.23.
    (2) Information protection procedures employed by State and local 
police forces are deemed to meet the general performance requirement in 
Sec.  73.21(a)(i).
    (b) Commission Authority. Pursuant to section 147 of the Atomic 
Energy Act of 1954, as amended, (42 U.S.C. 2167), the Commission may 
impose, by order

[[Page 7212]]

or regulation, Safeguards Information handling requirements different 
from those specified in Sec.  73.21(a)(1) and (2) on any person who 
produces, receives, or acquires Safeguards Information.
    37. Section 73.22 is added to read as follows:


Sec.  73.22  Protection of Safeguards Information: Specific 
Requirements.

    This section contains specific requirements for the protection of 
Safeguards Information related to power reactors, licensees authorized 
to possess a formula quantity of strategic special nuclear material, 
transportation of or delivery to a carrier for transportation of a 
formula quantity of strategic special nuclear material or more than 100 
grams of irradiated reactor fuel, and fuel cycle facilities.
    (a) Information to be protected. The types of information and 
documents that must be protected as Safeguards Information include 
security-related requirements such as protective measures, interim 
compensatory measures, additional security measures, and the following, 
as applicable:
    (1) Physical Protection at fixed sites. Information not otherwise 
classified as Restricted Data or National Security Information relating 
to the protection of power reactors, transportation of or delivery to a 
carrier for transportation of a formula quantity of strategic special 
nuclear material, spent irradiated fuel in excess of 100 grams, and 
licensees authorized to possess a formula quantity of strategic nuclear 
material, including:
    (i) All portions of the composite physical security plan for the 
facility or site.
    (ii) Site specific drawings, diagrams, sketches, or maps that 
substantially represent the final design features of the physical 
security system.
    (iii) Alarm system layouts showing the location of intrusion 
detection devices, alarm assessment equipment, alarm system wiring, 
emergency power sources, and duress alarms.
    (iv) Written physical security orders and procedures for members of 
the security organization, duress codes, and patrol schedules.
    (v) On-site and off-site communications systems in regard to their 
use for security purposes.
    (vi) Lock combinations, mechanical key design, or passwords 
integral to the physical security system.
    (vii) Documents and other matter that contain lists or locations of 
certain safety-related equipment explicitly identified in the documents 
as vital for purposes of physical protection, as contained in physical 
security plans, safeguards contingency plans, or plant specific 
safeguards analyses.
    (viii) All portions of the composite safeguards contingency plan 
for the facility or site.
    (ix) All portions of the composite facility guard qualification and 
training plan disclosing features of the physical security system or 
response procedures.
    (x) Information concerning onsite or offsite response forces, 
including size, identity, armament, and arrival times of such forces 
committed to respond to safeguards or security emergencies.
    (xi) The elements and characteristics of the Design Basis Threat in 
a level of detail greater than as specified in Sec.  73.1 or other 
information that would disclose the Design Basis Threat, including the 
tactics and capabilities required to defend against that threat.
    (xii) Engineering and safety analyses, emergency planning 
procedures or scenarios, and other information related to the physical 
protection of the facility or materials if the unauthorized disclosure 
of such information could reasonably be expected to have a significant 
adverse effect on the health and safety of the public or the common 
defense and security by significantly increasing the likelihood of 
theft, diversion, or sabotage of material or a facility.
    (xiii) Information required by the Commission pursuant to 10 CFR 
73.55(c)(8) and (9).
    (2) Physical protection in transit. Information not otherwise 
classified as Restricted Data or National Security Information related 
to the protection of transportation of, or delivery to a carrier for 
transportation of a formula quantity of strategic special nuclear 
material or more than 100 grams of irradiated reactor fuel, including:
    (i) All portions of the composite transportation physical security 
plan.
    (ii) Schedules and itineraries for specific shipments. (Routes and 
quantities for shipments of spent fuel are not withheld from public 
disclosure. Schedules for spent fuel shipments may be released 10 days 
after the last shipment of a current series.)
    (iii) Vehicle immobilization features, intrusion alarm devices, and 
communications systems.
    (iv) Arrangements with and capabilities of local police response 
forces, and locations of safe havens.
    (v) Limitations of communications during transport.
    (vi) Procedures for response to safeguards or security emergencies.
    (vii) Information concerning the tactics and capabilities required 
to defend against attempted radiological sabotage, or theft and 
diversion of formula quantities of special nuclear material, or related 
information.
    (viii) Engineering or safety analyses, emergency planning 
procedures or scenarios related to the protection of the transported 
material if the unauthorized disclosure of such information could 
reasonably be expected to have a significant adverse effect on the 
health and safety of the public or the common defense and security by 
significantly increasing the likelihood of theft, diversion, or 
sabotage of such material.
    (3) Inspections, audits and evaluations. Information not otherwise 
classified as National Security Information or Restricted Data 
pertaining to inspections and reports that could affect the specific 
requirements for Safeguards Information related to power reactors, 
licensees authorized to possess a formula quantity of strategic special 
nuclear material, transportation of or delivery to a carrier for 
transportation of a formula quantity of strategic special nuclear 
material or more than 100 grams of irradiated reactor fuel, and fuel 
cycle facilities required to implement security measures including:
    (i) Portions of inspection reports, evaluations, audits, or 
investigations that contain details of a licensee's or applicant's 
physical security system or that disclose uncorrected defects, 
weaknesses, or vulnerabilities in the system.
    (ii) Reports of investigations containing general information may 
be released after the investigation has been completed, unless withheld 
pursuant to other authorities, e.g., the Freedom of Information Act (5 
U.S.C. 552).
    (4) Correspondence. Portions of correspondence insofar as they 
contain Safeguards Information as defined in paragraphs (a)(1) through 
(a)(3) of this paragraph.
    (5) Other information that the Commission determines by order or 
regulation could reasonably be expected to have a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of theft, 
diversion, or sabotage of material or a facility.
    (b) Conditions for access. (1) Except as the Commission may 
otherwise authorize, no person may have access to Safeguards 
Information unless the person has an established ``need to know'' for 
the information and is:
    (i) An employee, agent, or contractor of an applicant, a licensee, 
the Commission, or the Executive Branch of the United States 
Government. However,

[[Page 7213]]

    (A) An individual to be authorized access to Safeguards Information 
by a nuclear power reactor applicant or licensee must demonstrate 
trustworthiness and reliability and undergo a Federal Bureau of 
Investigation criminal history check to the extent required by 10 CFR 
73.57 prior to such access;
    (B) Other individuals to be authorized access to Safeguards 
Information by an applicant or licensee covered by this section must 
demonstrate trustworthiness and reliability through a comprehensive 
background check or other means as approved by the Commission prior to 
such access;
    (ii) A member of Congress;
    (iii) The Governor of a State or designated representatives;
    (iv) Representatives of the International Atomic Energy Agency 
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards 
Agreement who has been certified by the NRC;
    (v) Employees of a state or local law enforcement authority that 
are responsible for responding to requests for assistance during 
safeguards or security emergencies;
    (vi) State Radiation Control Program Directors and State Homeland 
Security Advisors or their designated representatives; or
    (vii) An individual to whom disclosure is ordered pursuant to Sec.  
2.709(f) of this chapter.
    (2) The individuals described in (b)(1)(ii) through (vi) of this 
section are deemed to be trustworthy and reliable by virtue of their 
occupational status. For non-governmental individuals in (b)(1)(i) and 
(vii) of this section, a determination of trustworthiness and 
reliability is required.
    (3) Except as the Commission may otherwise authorize, no person may 
disclose Safeguards Information to any other person except as set forth 
in paragraph (b)(1) of this section.
    (c) Protection while in use or storage. (1) While in use, matter 
containing Safeguards Information must be under the control of an 
individual authorized access to Safeguards Information. This 
requirement is satisfied if the Safeguards Information is attended by 
such an individual even though the information is in fact not 
constantly being used. Safeguards Information within alarm stations, 
continuously manned guard posts or ready rooms need not be locked in a 
locked security storage container.
    (2) While unattended, Safeguards Information must be stored in a 
locked security storage container. The container may not identify the 
contents of the matter contained and must preclude access by 
individuals not authorized access in accordance with the provisions of 
this section. Knowledge of lock combinations protecting Safeguards 
Information must be limited to a minimum number of personnel for 
operating purposes who have a ``need to know'' and are otherwise 
authorized access to Safeguards Information in accordance with the 
provisions of this Part. Access to lock combinations must be strictly 
controlled so as to prevent disclosure to an unauthorized individual 
not authorized access to Safeguards Information.
    (d) Preparation and marking of documents or other matter. (1) Each 
document or other matter that contains Safeguards Information as 
described in Sec.  73.21(a)(1)(i) and this section must be marked 
``Safeguards Information'' in a conspicuous manner on the top and 
bottom of each page to indicate the presence of protected information. 
The first page of each document must also contain:
    (i) The name, title, and organization of the individual authorized 
to make a Safeguards Information determination, and who has determined 
that the document contains Safeguards Information;
    (ii) The date the determination was made; and
    (iii) An indication that unauthorized disclosure would be subject 
to civil and criminal sanctions.
    (2) In addition to the ``Safeguards Information'' markings at the 
top and bottom of each page, transmittal letters or memoranda which do 
not in themselves contain Safeguards Information shall be marked to 
indicate that attachments or enclosures contain Safeguards Information 
but that the transmittal document does not (e.g., ``When separated from 
Safeguards Information enclosure(s), this document is decontrolled).
    (3) Any transmittal document forwarding Safeguards Information must 
alert the recipient that protected information is enclosed. 
Certification that a document or other media contains Safeguards 
Information must include the name and title of the certifying official 
and date designated. Portion marking of documents or other information 
is required for correspondence to and from the NRC. The portion marking 
must be sufficient to allow the recipient to identify and distinguish 
those sections of the document or other information containing the 
Safeguards Information from non-Safeguards Information.
    (4) Documents and other matter containing Safeguards Information in 
the hands of contractors and agents of licensees that were produced 
more than one year prior to the effective date of this amendment need 
not be marked unless they are removed from storage containers for use.
    (5) The marking ``SGI'' must be used for Safeguards Information 
designated as such for the protection of facilities and material 
covered by 10 CFR 73.22.
    (e) Reproduction of matter containing Safeguards Information. 
Safeguards Information may be reproduced to the minimum extent 
necessary consistent with need without permission of the originator. If 
Safeguards Information is reproduced on a digital copier that would 
retain Safeguards Information in its memory, then the copier may not be 
connected to a network.
    (f) External transmission of documents and material. (1) Documents 
or other matter containing Safeguards Information, when transmitted 
outside an authorized place of use or storage, must be packaged in two 
sealed envelopes or wrappers to preclude disclosure of the presence of 
protected information. The inner envelope or wrapper must contain the 
name and address of the intended recipient and be marked on both sides, 
top and bottom, with the words ``Safeguards Information.'' The outer 
envelope or wrapper must be opaque, addressed to the intended 
recipient, must contain the address of the sender, and may not bear any 
markings or indication that the document contains Safeguards 
Information.
    (2) Safeguards Information may be transported by any commercial 
delivery company that provides nationwide overnight service with 
computer tracking features, U.S. first class, registered, express, or 
certified mail, or by any individual authorized access pursuant to 
these requirements.
    (3) Except under emergency or extraordinary conditions, Safeguards 
Information must be transmitted electronically only by protected 
telecommunications circuits (including facsimile) or encryption 
(Federal Information Processing Standard [FIPS] 140-2) approved by the 
appropriate NRC office. For the purpose of this section, emergency or 
extraordinary conditions are defined as any circumstances that require 
immediate communications in order to report, summon assistance for, or 
respond to a safeguards or security event or an event that has 
potential security significance. Physical security events required to 
be reported pursuant to Sec.  73.71 are

[[Page 7214]]

considered to be extraordinary conditions.
    (g) Processing of Safeguards Information on electronic systems. (1) 
Safeguards Information may be stored, processed or produced on a stand-
alone computer (or computer system) for processing of Safeguards 
Information. ``Stand-alone'' means a computer or computer system to 
which access is limited to individuals authorized access to Safeguards 
Information. A stand-alone computer or computer system may not be 
physically or in any other way connected to a network accessible by 
users who are not authorized access to Safeguards Information.
    (2) Each computer not located within an approved and lockable 
security storage container that is used to process Safeguards 
Information must have a removable storage medium with a bootable 
operating system. The bootable operating system must be used to load 
and initialize the computer. The removable storage medium must also 
contain the software application programs, and all data must be 
processed and saved on the same removable storage medium. The removable 
storage medium must be secured in a locked security storage container 
when not in use.
    (3) A mobile device (such as a laptop computer) may also be used 
for the automated processing of Safeguards Information provided the 
device is secured in a locked security storage container when not in 
use. Other systems may be used if approved for security by the 
appropriate NRC office.
    (h) Removal from Safeguards Information category. Documents 
originally containing Safeguards Information must be removed from the 
Safeguards Information category whenever the information no longer 
meets the criteria contained in this part. Care must be exercised to 
ensure that any document decontrolled not disclose Safeguards 
Information in some other form or be combined with other unprotected 
information to disclose Safeguards Information. The authority to 
determine that a document may be decontrolled shall be exercised only 
by the NRC or with NRC approval, or in consultation with the individual 
or organization that made the original determination, if possible.
    (i) Destruction of matter containing Safeguards Information. 
Documents or other media containing Safeguards Information must be 
destroyed when no longer needed. The information can be destroyed by 
tearing into small pieces, burning, shredding or any other method that 
precludes reconstruction by means available to the public at large. 
Piece sizes one half inch or smaller composed of several pages or 
documents and thoroughly mixed would be considered completely 
destroyed.
    38. Section 73.23 is added to read as follows:


Sec.  73.23  Protection of Safeguards Information-Modified Handling: 
Specific Requirements.

    This section contains specific requirements for the protection of 
Safeguards Information related to certain quantities of source and 
byproduct material and special nuclear material of moderate or low 
strategic significance, except for those materials covered under Sec.  
73.22. The requirements of this section distinguish Safeguards 
Information requiring modified protection requirements (SGI-M) from 
Safeguards Information for facilities and materials needing a higher 
level of protection, as set forth in Sec.  73.22.
    (a) Information to be protected. The types of information and 
documents that must be protected as Safeguards Information include 
security-related requirements such as protective measures, interim 
compensatory measures, additional security measures, and the following, 
as applicable:
    (1) Physical Protection at fixed sites. Information not otherwise 
classified as Restricted Data or National Security Information relating 
to source material, byproduct material, special nuclear material of 
moderate strategic significance, or special nuclear material of low 
strategic significance, in quantities determined by the Commission 
through order or regulation to be significant to the public health and 
safety or the common defense and security, including:
    (i) All portions of the composite physical security plan for the 
facility or site.
    (ii) Site specific drawings, diagrams, sketches, or maps that 
substantially represent the final design features of the physical 
security system.
    (iii) Alarm system layouts showing location of intrusion detection 
devices, alarm assessment equipment, alarm system wiring, emergency 
power sources, and duress alarms.

    (iv) Written physical security orders and procedures for members of 
the security organization, duress codes, and patrol schedules.
    (v) On-site and off-site communications systems in regard to their 
use for security purposes.
    (vi) Lock combinations, mechanical key design, or passwords 
integral to the physical security system.
    (vii) Facility guard qualification and training procedures 
disclosing features of the physical security system or response 
procedures.
    (viii) Descriptions of security activities which disclose features 
of the physical security system or response measures.
    (ix) Information concerning offsite response forces, including 
size, identity, armament, and arrival times of such forces committed to 
respond to safeguards or security emergencies.
    (x) Engineering and safety analyses, emergency planning procedures 
or scenarios, and other information related to the physical protection 
of the facility or materials if the unauthorized disclosure of such 
information could reasonably be expected to have a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of theft, 
diversion, or sabotage of material or a facility.
    (2) Physical protection in transit. Information not otherwise 
classified as Restricted Data or National Security Information related 
to the protection of shipments of certain quantities of source material 
and byproduct material and special nuclear material of moderate or low 
strategic significance, except for those materials covered under Sec.  
73.22, and in quantities determined by the Commission through order or 
regulation to be significant to the public health and safety or the 
common defense and security, including:
    (i) Information regarding security features of a transportation 
physical security plan (Scheduling and itinerary information may be 
shared with others on a ``need to know'' basis and is not designated as 
Safeguards Information-Modified Handling).
    (ii) Arrangements with and capabilities of local police response 
forces, and locations of safe havens.
    (iii) Limitations of communications during transport.
    (iv) Procedures for response to safeguards or security emergencies.
    (v) Engineering or safety analyses, emergency planning procedures 
or scenarios related to the protection of the transported material if 
the unauthorized disclosure of such information could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of theft, diversion, or sabotage of such 
material.
    (3) Inspections, audits and evaluations. Information not otherwise 
classified as National Security Information or Restricted Data relating 
to inspections and reports, such as:

[[Page 7215]]

    (i) Portions of inspection reports, evaluations, audits, or 
investigations that contain details of a licensee's or applicant's 
physical security system or that disclose uncorrected defects, 
weaknesses, or vulnerabilities in the system.
    (ii) Reports of investigations containing general information may 
be released after the investigation has been completed, unless withheld 
pursuant to other authorities, e.g., the Freedom of Information Act (5 
U.S.C. 552).
    (4) Correspondence. Portions of correspondence insofar as they 
contain Safeguards Information, including the information in paragraphs 
(a)(1) through (a)(3) of this section.
    (5) Other information that the Commission determines by order or 
regulation could reasonably be expected to have a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of theft, 
diversion, or sabotage of material or a facility.
    (b) Conditions for access. (1) Except as the Commission may 
otherwise authorize, no person may have access to Safeguards 
Information unless the person has an established ``need to know'' for 
the information and is:
    (i) An employee, agent, or contractor of an applicant, a licensee, 
the Commission, or the Executive Branch of the United States 
Government. Individuals authorized access to Safeguards Information by 
a source, byproduct, or special nuclear material applicant or licensee 
must demonstrate trustworthiness and reliability through a 
comprehensive background check or other means as approved by the 
Commission prior to such access;
    (ii) A member of Congress;
    (iii) The Governor of a State or designated representatives;
    (iv) Representatives of the International Atomic Energy Agency 
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards 
Agreement who has been certified by the NRC;
    (v) Employees of a state or local law enforcement authority that 
are responsible for responding to requests for assistance during 
safeguards or security emergencies;
    (vi) State Radiation Control Program Directors and State Homeland 
Security Advisors or their designated representatives; or
    (vii) An individual to whom disclosure is ordered pursuant to Sec.  
2.709(f) of this chapter.
    (2) The individuals described in paragraph (b)(1)(ii) through (vi) 
of this section are deemed to be trustworthy and reliable by virtue of 
their occupational status. For non-governmental individuals in 
(b)(1)(i) and (vii) of this section, a determination of trustworthiness 
and reliability is required.
    (3) Except as the Commission may otherwise authorize, no person may 
disclose Safeguards Information to any other person except as set forth 
in paragraph (b)(1) of this section.
    (c) Protection while in use or storage. (1) While in use, matter 
containing Safeguards Information must be under the control of an 
individual authorized access to such information. This requirement is 
satisfied if the Safeguards Information is attended by such an 
individual even though the information is in fact not constantly being 
used. Safeguards Information within alarm stations, continuously manned 
guard posts or ready rooms need not be locked in a file drawer or 
cabinet.
    (2) While unattended, Safeguards Information must be stored in a 
locked file drawer or cabinet. The container may not identify the 
contents of the matter contained and must preclude access by 
individuals not authorized access in accordance with the provisions of 
this section. Knowledge of lock combinations or access to keys 
protecting Safeguards Information must be limited to a minimum number 
of personnel for operating purposes who have a ``need to know'' and are 
otherwise authorized access to Safeguards Information in accordance 
with the provisions of this Part. Access to lock combinations must be 
strictly controlled so as to prevent disclosure to an individual not 
authorized access to Safeguards Information.
    (d) Preparation and marking of documents or other matter. (1) Each 
document or other matter that contains Safeguards Information as 
described in Sec.  73.23(a) and in this section must be marked ``SGI--
Modified Handling'' in a conspicuous manner on the top and bottom of 
each page to indicate the presence of protected information. The first 
page of the document must also contain:
    (i) The name, title, and organization of the individual authorized 
to make a Safeguards Information--Modified Handling safeguards 
information designation, and who has determined that the document 
contains Safeguards Information;
    (ii) The date the determination was made; and
    (iii) An indication that unauthorized disclosure would be subject 
to civil and criminal sanctions.
    (2) In addition to the ``SGI--Modified Handling''' markings at the 
top and bottom of each page, transmittal letters or memoranda which do 
not in themselves contain Safeguards Information must be marked to 
indicate that attachments or enclosures contain Safeguards Information 
but that the transmittal does not (e.g., ``When separated from 
Safeguards Information--Modified Handling enclosure(s), this document 
is decontrolled'').
    (3) Any transmittal document forwarding Safeguards Information must 
alert the recipient that protected information is enclosed. 
Certification that a document or other media contains Safeguards 
Information must include the name and title of the certifying official 
and date designated. Portion marking of documents or other information 
is required for correspondence to and from the NRC. The portion marking 
must be sufficient to allow the recipient to identify and distinguish 
those sections of the document or other information containing the 
Safeguards Information from non-Safeguards Information. Documents and 
other matter containing Safeguards Information in the hands of 
contractors and agents of licensees that were produced more than one 
year prior to the effective date of this amendment need not be marked 
unless they are removed from storage containers for use.
    (e) Reproduction of matter containing Safeguards Information. 
Safeguards Information may be reproduced to the minimum extent 
necessary, consistent with need, without permission of the originator. 
If Safeguards Information is reproduced on a digital copier that would 
retain Safeguards Information in its memory, then the copier may not be 
connected to a network.
    (f) External transmission of documents and material. (1) Documents 
or other matter containing Safeguards Information, when transmitted 
outside an authorized place of use or storage, must be packaged in two 
sealed envelopes or wrappers to preclude disclosure of the presence of 
protected information. The inner envelope or wrapper must contain the 
name and address of the intended recipient and be marked on both sides, 
top and bottom, with the words ``SGI--Modified Handling.'' The outer 
envelope or wrapper must be opaque, addressed to the intended 
recipient, must contain the address of the sender, and must not bear 
any markings or indication that the document contains Safeguards 
Information.
    (2) Safeguards Information may be transported by any commercial 
delivery

[[Page 7216]]

company that provides nationwide overnight service with computer 
tracking features, U.S. first class, registered, express, or certified 
mail, or by any individual authorized access pursuant to these 
requirements.
    (3) Except under emergency or extraordinary conditions, Safeguards 
Information must be transmitted electronically only by protected 
telecommunications circuits (including facsimile) or encryption 
(Federal Information Processing Standard [FIPS] 140-2) approved by the 
appropriate NRC office. For the purpose of this section, emergency or 
extraordinary conditions are defined as any circumstances that require 
immediate communications in order to report, summon assistance for, or 
respond to a security event or an event that has potential security 
significance. Physical security events required to be reported pursuant 
to Sec.  73.71 are considered to be extraordinary conditions.
    (g) Processing of Safeguards Information on electronic systems. (1) 
Safeguards Information designated for modified handling may be stored, 
processed or produced on a computer or computer system, provided that 
the system is assigned to the licensee's or contractor's facility. Each 
file containing Safeguards Information must be protected, either by a 
password or encryption, to prevent unauthorized individuals from 
gaining access. Word processors such as typewriters are not subject to 
these requirements as long as they do not transmit information off-
site. (Note: if Safeguards Information is produced on a typewriter, the 
ribbon must be removed and stored in the same manner as other 
Safeguards Information or media.)
    (2) Safeguards Information files may be transmitted over a network 
if the file is encrypted. In such cases, the licensee will select a 
commercially available encryption system that the National Institute of 
Standards and Technology (NIST) has validated as conforming to Federal 
Information Processing Standards (FIPS). Safeguards Information files 
shall be properly labeled as ``SGI-Modified Handling'' and saved to 
removable media and stored in a locked file drawer or cabinet.
    (3) A mobile device (such as a laptop computer) may also be used 
for the automated processing of Safeguards Information provided the 
device is secured in an appropriate locked storage container when not 
in use. Other systems may be used if approved for security by the 
appropriate NRC office.
    (h) Removal from Safeguards Information category. Documents 
originally containing Safeguards Information must be removed from the 
Safeguards Information category whenever the information no longer 
meets the criteria contained in this part. Care must be exercised to 
ensure that any document decontrolled shall not disclose Safeguards 
Information in some other form or be combined with other unprotected 
information to disclose Safeguards Information. The authority to 
determine that a document may be decontrolled must be exercised only by 
the NRC or with NRC approval or in consultation with the individual or 
organization that made the original determination, if possible.
    (i) Destruction of matter containing Safeguards Information. 
Documents or other media containing Safeguards Information shall be 
destroyed when no longer needed. The information can be destroyed by 
tearing into small pieces, burning, shredding or any other method that 
precludes reconstruction by means available to the public at large. 
Piece sizes one half inch or smaller composed of several pages or 
documents and thoroughly mixed would be considered completely 
destroyed.
    39. In Sec.  73.57 paragraphs (b)(2)(i) and (ii) are revised to 
read as follows:


Sec.  73.57  Requirements for criminal history checks of individuals 
granted unescorted access to a nuclear power facility or access to 
Safeguards Information by power reactor licensees.

* * * * *
    (b) * * *
    (2) * * *
    (i) For unescorted access to the nuclear power facility or for 
access to Safeguards Information (but must adhere to provisions 
contained in Sec. Sec.  73.21 and 73.22): NRC employees and NRC 
contractors on official agency business; individuals responding to a 
site emergency in accordance with the provisions of Sec.  73.55(a); a 
representative of the International Atomic Energy Agency (IAEA) engaged 
in activities associated with the U.S./IAEA Safeguards Agreement at 
designated facilities who has been certified by the NRC; law 
enforcement personnel acting in an official capacity; State or local 
government employees who have had equivalent reviews of FBI criminal 
history data; and individuals employed at a facility who possess ``Q'' 
or ``L'' clearances or possess another active government granted 
security clearance, i.e., Top Secret, Secret, or Confidential;
    (ii) For access to Safeguards Information only but must adhere to 
provisions contained in Sec. Sec.  73.21 and 73.22: Employees of other 
agencies of the United States Government; a member of the Congress; the 
Governor of a State or his or her designated representatives; 
individuals to whom disclosure is ordered pursuant to Sec.  2.709(f) of 
this chapter;
* * * * *

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

    40. The authority citation for part 76 continues to read as 
follows:

    Authority: Secs. 161, 68 Stat. 948, as amended, secs. 1312, 
1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-
349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204, 
206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846). 
Sec 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 
1321, 1321-349 (42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 (44 
U.S.C. 3504 note). Sec. 76.7 also issued under Pub. L. 95-601. sec. 
10, 92 Stat 2951 (42 U.S.C. 5851). Sec. 76.22 is also issued under 
sec. 193(f), as amended, 104 Stat. 2835, as amended by Pub. L. 104-
134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(f)). Sec. 76.35(j) 
also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).

    41. In Sec.  76.113, paragraph (c) is revised to read as follows:


Sec.  76.113  Formula quantities of strategic special nuclear 
material--Category I.

* * * * *
    (c) The requirements for the protection of Safeguards Information 
pertaining to formula quantities of strategic special nuclear material 
(Category I) are contained in Sec. Sec.  73.21 and 73.22 of this 
chapter. Information designated by the U.S. Department of Energy as 
Unclassified Controlled Nuclear Information must be protected at a 
level equivalent to that accorded Safeguards Information.
* * * * *
    42. In Sec.  76.115, paragraph (d) is added to read as follows:


Sec.  76.115  Special nuclear material of moderate strategic 
significance--Category II.

* * * * *
    (d) The requirements for the protection of Safeguards Information 
pertaining to special nuclear material of moderate strategic 
significance--Category II are contained in Sec. Sec.  73.21 and 73.22 
of this chapter.
    43. In Sec.  76.117, paragraph (c) is added to read as follows:


Sec.  76.117  Special nuclear material of low strategic significance--
Category III.

* * * * *
    (c) The requirements for the protection of Safeguards Information 
pertaining to special nuclear material of low strategic significance-
Category III are contained in Sec. Sec.  73.21 and 73.22 of this 
chapter.

[[Page 7217]]

PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN 
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274

    44. The authority citation for part 150 continues to read as 
follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as 
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued 
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42 
U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub. 
L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 
150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 
Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 
2282).

    45. In Sec.  150.15, paragraph (a)(9) is added to read as follows:


Sec.  150.15  Persons not exempt.

* * * * *
    (a) * * *
    (9) The requirements for the protection Safeguards Information in 
Sec. Sec.  73.21 and 73.23 of this chapter.
* * * * *

    Dated at Rockville, Maryland this 7th day of February 2005.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-2665 Filed 2-10-05; 8:45 am]

BILLING CODE 7590-01-P