PDF Version

[Federal Register: October 31, 2006 (Volume 71, Number 210)]
[Proposed Rules]               
[Page 64003-64068]
                       

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Part IV


Nuclear Regulatory Commission


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10 CFR Parts 2, 30, et al.

Protection of Safeguards Information; Proposed Rule

[[Page 64004]]

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NUCLEAR REGULATORY COMMISSION

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

RIN: 3150-AH57

 
Protection of Safeguards Information

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
its regulations for the protection of Safeguards Information (SGI) to 
protect SGI from inadvertent release and unauthorized disclosure which 
might compromise the security of nuclear facilities and materials. The 
amendments would affect certain licensees, information, and materials 
not currently subject to SGI regulations, but which are within the 
scope of Commission authority under the Atomic Energy Act of 1954, as 
amended (AEA). The NRC originally published a proposed rule on SGI on 
February 11, 2005 (70 FR 7196). The NRC is again publishing the 
proposed rule on SGI protection requirements in order to allow the 
public to comment on changes to the proposed rule text in response to 
public comment and to reflect amendments to the AEA in the Energy 
Policy Act of 2005 (EPAct) and Commission Orders issued to licensees 
authorized to possess and transfer items containing certain quantities 
of radioactive material.

DATES: The comment period expires January 2, 2007. Submit comments 
specific to information collection aspects of this rule January 2, 
2007. Comments received after that date will be considered if it is 
practical to do so, but the NRC is able to ensure consideration only 
for comments received on or before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number (RIN 3150-AH57) in the subject line 
of your comments. Comments on this rulemaking submitted in writing or 
in electronic form will be made available for public inspection. 
Because your comments will not be edited to remove identifying 
information, the NRC cautions against including personal information 
such as social security numbers and birth dates in your submission.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Attn: Rulemaking and Adjudications Staff.
    E-mail comments to: [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 01F21, One White Flint North, 11555 Rockville 
Pike, Rockville, Maryland. Selected documents, including comments, can 
be reviewed and downloaded electronically via the NRC rulemaking Web 
site at http://ruleforum.llnl.gov.

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

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

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

Supplementary Information:

I. Background
II. Need for Rule
III. Purpose of Rulemaking
IV. Discussion
    A. Overview of Public Comments on the Original Proposed Rule
    B. Comments and Issues
    1. Comments in Response to Specific Request for Comments
    2. General Issues
    3. Section-Specific Comments
    C. Section-by-Section Analysis
    D. Request for Specific Comment
V. Criminal Penalties
VI. Agreement State Issues
VII. Voluntary Consensus Standards
VIII. Finding of No Significant Impact: Environmental Assessment
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis

I. Background

    The NRC first published proposed amendments to its rules in parts 
2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76, 150 governing the 
handling of Safeguards Information and creating a new category of 
protected material, Safeguards Information-Modified Handling on 
February 11, 2005 (70 FR 7196). Subsequently, Congress passed the 
Energy Policy Act of 2005 (EPAct), Pub. L. No. 109-58, 119 Stat. 594. 
Section 652 of the EPAct amended section 149 of the Atomic Energy Act 
(AEA) to require fingerprinting, for criminal history check purposes, 
of a broader class of persons. With regard to access to SGI before the 
EPAct, the NRC's fingerprinting authority was limited to requiring 
licensees and applicants for a license to operate a nuclear power 
reactor under 10 CFR part 50 to fingerprint individuals prior to 
granting access to SGI. The EPAct expanded the NRC's authority to 
require fingerprinting of only individuals with access to SGI. Under 
the EPAct, NRC has the authority to require that the following 
individuals conduct fingerprinting before granting access to SGI: (1) 
Individuals licensed or certified to engage in an activity subject to 
regulation by the Commission; (2) individuals who have filed an 
application for a license or certificate to engage in Commission-
regulated activities; and (3) have notified the Commission in writing 
of an intent to file an application for licensing, certification, 
permitting, or approval of a product or activity subject to regulation 
by the Commission. Previously, section 149 of the AEA only required 
fingerprinting and criminal history records checks of individuals 
seeking access to SGI (as defined in Sec.  73.2) from a power reactor 
licensee or license applicant.
    The EPAct preserved the Commission's authority in section 149 to 
relieve by rule certain persons from the fingerprinting, 
identification, and

[[Page 64005]]

criminal history records checks. The Commission recently exercised that 
authority to relieve by rule certain categories of persons from those 
requirements including Federal, State, and local officials involved in 
security planning and incident response, Agreement State employees who 
evaluate licensee compliance with security-related orders, members of 
Congress who request SGI as part of their oversight function, and 
certain foreign representatives. These exemptions are based on the 
Commission's findings that (1) interrupting those individuals' access 
to SGI to perform fingerprinting and criminal history checks would harm 
vital inspection, oversight, planning, and enforcement functions, (2) 
it would impair communications among the NRC, its licensees, and first 
responders in the event of an imminent security threat or other 
emergency, and (3) it could strain the Commission's cooperative 
relationships with its international counterparts, and might delay 
needed exchanges of information to the detriment of current security 
initiatives both at home and abroad. The final rule was published in 
the Federal Register on June 13, 2006 (71 FR 33,989). That final rule 
was necessary to avoid disruption of the Commission's information 
sharing activities during the interim period while the Commission 
completes the overall revision of the regulations in this rulemaking.
    We have revised the original proposed rule to reflect the new 
requirements under the EPAct, and the final rule cited above, and we 
are again seeking public comment before promulgating a final SGI rule. 
We have also made revisions to reflect public comments on the original 
proposed rule, recent Commission direction, and Orders issued to 
licensees authorized to possess and transfer items containing certain 
quantities of radioactive material.
    The Commission requests that comments on this revised proposed rule 
focus on the changes and additions to the original proposed rule and 
not on areas discussed in previous comments. Because the public has 
already had opportunity to comment on much of the material contained in 
this revised proposed rule, the Commission has determined that a 60-day 
comment period is appropriate, and requests for extension of the 
commenting period will not be granted.
    SGI is a special category of sensitive unclassified information to 
be protected from unauthorized disclosure under Section 147 of the AEA. 
Although SGI is considered to be sensitive unclassified information, it 
is handled and protected more like Classified National Security 
Information than like other sensitive unclassified information (e.g., 
privacy and proprietary information). Part 73, ``Physical Protection of 
Plants and Materials,'' of the NRC's regulations in Title 10 of the 
Code of Federal Regulations (CFR) contains requirements for the 
protection of SGI. Commission orders issued since September 11, 2001, 
have also imposed requirements for the designation and protection of 
SGI. These requirements apply to SGI in the hands of any person, 
whether or not a licensee of the Commission, who produces, receives, or 
acquires SGI. An individual's access to SGI requires both a valid 
``need to know'' the information and authorization based on an 
appropriate background investigation. Power reactors, certain research 
and test reactors, and independent spent fuel storage installations are 
examples of the categories of licensees currently subject to the 
provisions of 10 CFR part 73 for the protection of SGI. Examples of the 
types of information designated as SGI include the physical security 
plan for a licensee's facility, the design features of a licensee's 
physical protection system, and operational procedures for the 
licensee's security organization.
    The Commission has authority under Section 147 of the AEA to 
designate, by regulation or order, other types of information as SGI. 
For example, Section 147a.(2) allows the Commission to designate as SGI 
a licensee's or applicant's detailed security measures (including 
security plans, procedures and equipment) for the physical protection 
of source material or byproduct material in quantities determined by 
the Commission to be significant to the public health and safety or the 
common defense and security. The AEA explicitly provides in Section 
147a. that ``any person, whether or not a licensee of the Commission, 
who violates any regulations adopted under this section shall be 
subject to the civil monetary penalties of Section 234 of this Act.'' 
Furthermore, willful violation of any regulation or order governing SGI 
is a felony subject to criminal penalties in the form of fines or 
imprisonment, or both, as prescribed in Section 223 of the AEA.
    The Commission has, by order, imposed SGI handling requirements on 
certain categories of these licensees. An example is the November 25, 
2003 Order issued to certain materials licensees.\1\ Violations of SGI 
handling and protection requirements, whether those specified in part 
73 or those imposed by order, are subject to civil and criminal 
sanctions. Licensee employees, past or present, and all other persons 
who have had access to SGI have a continuing obligation to protect SGI 
in order to prevent inadvertent release and unauthorized disclosure. 
Information designated as SGI must be withheld from public disclosure 
and must be physically controlled and protected. Protection 
requirements include: (1) Secure storage; (2) document marking; (3) 
restriction of access; (4) limited reproduction; (5) protected 
transmission; (6) controls for information processing on electronic 
systems; and (7) destruction of SGI. The AEA explicitly provides in 
Section 147a. that ``any person, whether or not a licensee of the 
Commission, who violates any regulations adopted under this section 
shall be subject to the civil monetary penalties of Section 234 of this 
Act.'' Furthermore, willful violation of any regulation or order 
governing SGI is a felony subject to criminal penalties in the form of 
fines or imprisonment, or both, as prescribed in Section 223 of the 
AEA.
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    \1\ This Order was published in the Federal Register as 
``Licensees Authorized to Manufacture or Initially Transfer Items 
Containing Radioactive Material for Sale or Distribution and Who 
Possess Certain Radioactive Material of Concern and all Persons Who 
Obtain Safeguards Information Described Herein; Order Issued on 
November 25, 2003, Imposing Requirements for the Protection of 
Certain Safeguards Information (Effective Immediately),'' (69 FR 
3397; Jan. 23, 2004).
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II. Need for Rule

    Changes in the threat environment have revealed the need to protect 
as SGI additional types of security information held by a broader group 
of licensees. The current regulations do not specify all of the types 
of information that could be designated as SGI and are now recognized 
to be significant to the public health and safety or the common defense 
and security. The unauthorized release of this information could result 
in harm to the public health and safety and the Nation's common defense 
and security, as well as damage to the Nation's critical 
infrastructure, including nuclear power plants and other facilities and 
materials licensed and regulated by the NRC or Agreement States.
    Since September 11, 2001, the NRC has issued orders that have 
increased the number of licensees whose security measures will be 
protected as SGI and added types of security information considered to 
be SGI. Orders have been issued to power reactor licensees, fuel cycle 
facility licensees, certain source material licensees, and certain 
byproduct material licensees. Some of

[[Page 64006]]

the orders expanded the types of information to be protected by 
licensees who already have an SGI protection program, such as nuclear 
power reactor licensees. Other orders were issued to licensees that 
have not previously been subject to SGI protection requirements in the 
regulations, such as certain licensees authorized to manufacture or 
initially transfer items containing radioactive material.\2\ Some 
orders imposed a new designation detailing modified handling 
requirements for certain SGI: Safeguards Information-Modified Handling 
(SGI-M). The more precise term is ``Safeguards Information-designated 
as Safeguards Information-Modified Handling'' to distinguish between 
``type of information''--SGI, and the two sets of handling requirements 
``SGI'' and ``SGI-M''. We are not seeking to create another type of 
information separate from SGI, and in fact SGI-M is SGI.
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    \2\1\ See Order (69 FR 3397; January 23, 2004).
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    SGI-M refers to SGI with handling requirements that are modified 
somewhat due to the lower risk posed by unauthorized disclosure of the 
information. The SGI-M protection requirements apply to certain 
security-related information regarding quantities of source, byproduct, 
and special nuclear materials for which the harm caused by unauthorized 
disclosure of information would be less than that for SGI.
    Some of the requirements imposed by orders that have increased the 
types of information to be considered SGI are not covered by the 
current regulations. Although the Commission has the authority to 
impose new SGI requirements through the issuance of orders, the 
regulations would not reflect current Commission SGI policy and/or 
requirements. Consequently, the NRC has opted to amend its regulations.

III. Purpose of Rulemaking

    NRC staff review of the SGI regulatory program indicates that 
changes in the regulations are needed to address issues such as access 
to SGI, types of security information to be protected, and handling and 
storage requirements.
    This rulemaking will:
    (1) Revise the definition of ``need to know'' in 10 CFR 73.2;
    (2) Implement expanded fingerprinting and criminal history check 
procedures for broader categories of individuals who will have access 
to SGI unless exempt from those requirements;
    (3) Implement a requirement for background checks which form the 
basis for demonstrating trustworthiness and reliability for individuals 
who will have access to SGI unless exempt from those requirements. As 
discussed in detail later, background checks are comprised of several 
elements, which would now include a criminal history check;
    (4) Modify part 73 to reflect the Commission's recent experience 
and actions, including addressing requirements contained in Orders 
issued following the terrorist attacks of September 11, 2001;
    (5) Expand the scope of part 73 to include additional categories of 
licensees (e.g., source and byproduct material licensees, research and 
test reactors not previously covered, and fuel cycle facilities not 
previously covered);
    (6) Expand the types of security information covered by the 
definition of SGI in Sec.  73.2 and the information categories 
described in Sec. Sec.  73.22 and 73.23 to include detailed security 
measures for the physical protection of byproduct, source, and special 
nuclear material; security-related scenarios and implementing 
procedures; uncorrected vulnerabilities or weaknesses in a security 
system; and certain training and qualification information; and
    (7) Clarify requirements for obtaining access to SGI in the context 
of adjudications and clarify the appeal procedures available.
    (8) Modify the original proposed rule to align it with the final 
rule in 10 CFR 73.59 granting relief from the identification and 
criminal history records check element (including fingerprinting) of 
background checks for designated categories of individuals.
    (9) Modify 10 CFR 73.59 to make it consistent with the language and 
structure of the proposed SGI rule.
    A graded approach based on the risks and consequences of 
information disclosure would be used in determining which category of 
licensee or type of information would be subject to certain protection 
requirements. This graded approach can be applied to issues such as the 
type of information to be protected, the classes of licensees subject 
to the rule, and the level of handling requirements necessary for the 
various licensees. For example, the graded approach would allow certain 
licensees to employ the modified-handling procedures introduced in 
recent orders and now set forth in the provisions of this revised 
proposed rule.
    The requirements set forth in this revised proposed rule are the 
minimum restrictions the Commission finds necessary to protect SGI 
against inadvertent release or unauthorized disclosure which might 
compromise the health and safety of the public or the common defense 
and security. The revised proposed rule would cover those facilities 
and materials the Commission has already determined need to be 
protected against theft or sabotage. The categories of information 
constituting SGI relate to the types of facilities and the quantities 
of special nuclear material, source material and byproduct material 
determined by the Commission to be significant and therefore subject to 
protection against unauthorized disclosure pursuant to Section 147 of 
the AEA. Unauthorized release of SGI could reduce the deterrence value 
of systems and measures used to protect nuclear facilities and 
materials and allow for the possible compromise of those facilities and 
materials. Such disclosures could also facilitate advance planning by 
an adversary intent on committing acts of theft or sabotage against the 
facilities and materials within the scope of the revised proposed rule. 
Further, the Commission has determined, pursuant to Section 147a.(3)(B) 
of the AEA, that the unauthorized disclosure of the information that is 
the subject of this revised proposed rule could reasonably be expected 
to have a significant adverse effect on the health and safety of the 
public or the common defense and security by significantly increasing 
the likelihood of theft, diversion, or sabotage of nuclear material or 
a production or utilization facility. The Commission has distinguished 
SGI designated as SGI-M, needing modified protection, from SGI for 
reactors and fuel cycle facilities that require a higher level of 
protection.

IV. Discussion

A. Overview of Public Comments on the Original Proposed Rule

    On February 11, 2005, (70 FR 7196), the Commission published a 
proposed rule and requested public comments by March 28, 2005. Twenty-
five comment letters were received, in addition to 622 letters from 
members of the public that were substantively identical. Copies of 
those letters are available for public inspection and copying for a fee 
at the NRC Public Document Room, 11555 Rockville Pike, Rockville, 
Maryland, or on the NRC's Agencywide Document Access and Management 
System, available online at: http://www.nrc.gov/reading-rm/adams/web-based.html
.

    Two comment letters were from trade unions, four were from public 
interest or government watchdog groups, one was from a journalist 
group, three were from members of the public, one was from a State 
government agency, two were from the U.S. Department of

[[Page 64007]]

Energy, one was from a law firm that represents nuclear utilities, and 
eleven were from utilities or nuclear industry groups. The comment 
letters provided various points of view and suggestions for 
clarifications, additions, deletions, and changes. Responses to the 
comments, including those in the 622 letters from the public, are set 
forth below.

B. Comments and Issues

1. Comments In Response to Specific Request for Comments
    In the February 2005 proposed rule, the NRC solicited specific 
public comment on the issue associated with differing requirements for 
access to SGI and SGI-M. The original proposed rule Sec. Sec.  
73.22(b)(1) and 73.23(b)(1) contained different requirements for 
performing background checks and making trustworthiness and reliability 
determinations for granting personnel access to SGI or SGI-M. These 
proposed requirements were based on the then-existing statutory 
authorization in Section 149 of the AEA for the NRC to require nuclear 
power reactor applicants or licensees to fingerprint individuals to be 
granted access to SGI. Before enactment of the EPAct on August 8, 2005, 
there was no similar statutory authorization to require fingerprinting 
by other applicants or licensees. Section 652 of the EPAct, however, 
amended Section 149 of the AEA to authorize the NRC to require 
fingerprinting of individuals granted access to SGI by all: (1) 
Individuals and entities engaged in activities subject to regulation by 
the Commission; (2) applicants for a license or certificate to engage 
in Commission-regulated activities; and (3) individuals and entities 
who have notified the Commission in writing of an intent to file an 
application for licensing, certification, permitting, or approval of a 
product or activity subject to regulations by the Commission.
    The NRC published the original proposed rule six months before the 
Energy Policy was enacted, specifically inviting comment on whether 
stakeholders perceived difficulties in complying with the varying 
requirements of SGI and SGI-M. The Commission has considered 
stakeholders' suggestions, comments, and proposals regarding the issue 
of whether a more uniform approach can be provided for background 
checks and trustworthiness and reliability determinations. Although 
comments may not have explicitly referred to this request for specific 
comment, many comments addressed the issue of performing background 
checks and the criteria for determining trustworthiness and reliability 
for access to SGI and SGI-M. These comments and detailed responses are 
set forth below. Commission views are also presented.
    One commenter expressed concern that the criteria to judge 
``trustworthiness and reliability'' could be applied arbitrarily to 
restrict access to information by persons deemed to have interests 
opposing the NRC or nuclear industry. Commenters also questioned how a 
``comprehensive background check'' would be conducted and what ``the 
other means'' for determining ``trustworthiness and reliability'' would 
be. Other commenters noted that the definition of ``trustworthiness and 
reliability'' does not clearly address how its requirements will be 
uniformly applied for all classes of individuals (for example, an 
individual who is not a utility employee such as an attorney for a 
utility or intervenor in an NRC adjudicatory proceeding), and whether 
there is a need for continued monitoring. Another commenter requested 
that the NRC address when background checks are required for persons 
requiring infrequent access to SGI or SGI-M such as commercial vendors 
periodically supplying security equipment and needed services to 
facilities. Some commenters requested greater detail on the criteria 
the NRC will use to determine access to SGI-M and that such criteria 
should allow for greater access to SGI-M because it poses ``a lower 
security risk.''
    In response to these comments, the Commission notes that the 
purpose of the criteria to determine ``trustworthiness and 
reliability'' for access to SGI is to provide reasonable assurance to 
the person granting access and to the Commission that granting an 
individual access to SGI does not constitute an unreasonable risk to 
the public health and safety or the common defense and security. 
Applying the criteria to improperly restrict access to SGI on the basis 
of an individual's support or opposition to the nuclear industry is not 
consistent with the regulatory framework the Commission has established 
for granting access to SGI.
    The changes to the original proposed rule text reflect Commission 
efforts to more thoroughly address the criteria for determining access 
to SGI. For example, the revised proposed rule defines the term 
``background check'' and provides greater specificity in the definition 
of the term ``trustworthiness and reliability.'' The revised proposed 
rule provides procedural protections to individuals seeking access to 
SGI in the context of adjudication both before and after an adverse 
determination of trustworthiness and reliability by the NRC Office of 
Administration. Before an adverse determination of trustworthiness and 
reliability is made, individuals would be entitled to use the 
procedures set forth in Sec.  73.57. In the context of NRC 
adjudications, individuals receiving an adverse determination on their 
background check for trustworthiness and reliability would be able to 
appeal that adverse determination to the presiding officer of the 
proceeding in which the SGI is sought. Potential witnesses, 
participants without attorneys, and attorneys would be able to request 
that the Chairman of the Atomic Safety and Licensing Board Panel 
designate an officer other than the presiding officer of the proceeding 
to review the determination. Moreover, in the revised proposed rule, 
the Commission has standardized the criteria for access to SGI to 
implement amendments to Section 149 of the AEA contained in Section 652 
of the EPAct. The revised proposed rule would require a Federal Bureau 
of Investigation criminal history check as part of the background check 
used to determine whether an individual is trustworthy and reliable 
before obtaining access to SGI, unless the Commission has otherwise 
provided. This requirement would extend to participants in NRC 
adjudicatory proceedings.
    The frequency with which access to SGI is needed is not a factor 
for determining access to SGI or SGI-M based on the governing 
provisions of the AEA or the Commission's regulatory framework 
implementing those provisions. Establishing an individual's need-to-
know the information and trustworthiness and reliability is necessary 
whether an individual needs a one-time access to SGI or SGI-M or access 
multiple times. A trustworthiness and reliability determination based 
on a background check must be made except for individuals enumerated in 
Sec.  73.59 including contractors of an applicant or licensee. The 
Commission has determined that access to SGI and Safeguards Information 
designated as SGI-M by licensee employees, agents, vendors, or 
contractors must include both an appropriate need-to-know finding by 
the licensee and a finding concerning the trustworthiness and 
reliability of individuals having access to the information. Although a 
separate need-to-know determination will be required for each specific 
request for access to SGI, the requirement for a determination of 
trustworthiness and

[[Page 64008]]

reliability based on a background check could be considered satisfied 
within a certain period of time, 5 years for example. The same interval 
would apply to criminal history records checks (including 
fingerprinting), which are an element of a background check to 
determine trustworthiness and reliability.
    A commenter also questioned why the Commission would institute 
requirements applicable to SGI-M and suggested that the ``less risk-
associated information'' be ``Official Use Only'' while some of the 
more sensitive information be ``Classified National Security 
Information.'' The Commission has distinguished SGI designated as SGI-
M, needing a lower level of protection. Information meeting the 
definition of SGI in Section 147 of the AEA is being protected as such 
rather than under the designations proposed by this commenter because 
such information should be protected as SGI does not constitute 
Classified National Security Information.
2. General Issues
    Comment: Some commenters stated that the proposed regulations go 
beyond the ``minimum restrictions'' needed to protect the health and 
safety of the public or the common defense and security, as required by 
Section 147 of the AEA. Rather than applying this provision, the 
Commission has expanded the SGI category to include virtually anything 
it wants to withhold. Therefore, the original proposed rule should be 
withdrawn or drastically revised.
    Response: The Commission recognizes there are limits to its 
discretion under Section 147 of the AEA in determining what information 
presents security concerns significant enough to warrant protection as 
SGI. The revised proposed rule does not expand the Commission's 
discretion beyond statutory limits--the revised proposed rule describes 
the information the Commission considers SGI and is within the scope of 
the authority granted by Section 147 of the AEA.
    Section 147 of the AEA authorizes the Commission to protect 
information that specifically identifies the control and accounting 
procedures or security measures, including plans, procedures, and 
equipment used to protect source, byproduct, and special nuclear 
material. The categories of information to be protected under the rule 
fall well within this scope. Sections 73.22(a)(1) and 73.23(a)(1) would 
protect information associated with physical protection such as alarm 
system layouts, intrusion detection equipment, and security 
communications systems, among other information. Sections 73.22(a)(2) 
and 73.23(a)(2) would protect information associated with physical 
protection such as intrusion alarms, vehicle immobilization features, 
and plans for law enforcement coordination. Sections 73.22(a)(3) and 
73.23(a)(3) would protect inspection reports, audits, and evaluations 
to the extent they discuss security measures or security 
vulnerabilities. All of this and other information categorized in the 
regulations, if publicly disclosed, could be used to specifically 
identify the control and accounting procedures or security measures, 
including security plans, procedures, and equipment used to protect 
source, byproduct, and special nuclear material and allow the 
circumvention of those plans, procedures, or equipment.
    The Commission's proposed conditions for access to SGI are not 
overly restrictive. Persons authorized access must be trustworthy and 
reliable based upon a background check to ensure that they will not 
purposely or inadvertently compromise the information. Access to SGI is 
limited to those with a ``need to know'' the information to avoid 
unnecessarily broad distribution of the information, which would 
increase the risk of inadvertent disclosures. As in the current SGI 
regulations, certain persons would be deemed trustworthy and reliable 
by virtue of their occupational status-these persons are generally 
members of government or law enforcement agencies, who in many cases 
have undergone background checks as a condition of their employment. 
Representatives of foreign governments or organizations would also not 
be subject to the background and criminal history checks, if approved 
by the Commission for access to SGI. Such an exemption is consistent 
with the Commission's historical practice. All of these persons would 
still be required to demonstrate a ``need to know'' the information.
    The Commission's proposed SGI handling requirements are not overly 
restrictive. Document marking requirements are necessary to distinguish 
SGI from other information so that it can be properly controlled. 
Locking up SGI while unattended is necessary to prevent unauthorized 
access to the information, as is limiting access to keys and knowledge 
of lock combinations. Restrictions on electronic processing, 
telecommunications and transmission are important to prevent 
interception of SGI, whether by electronic surveillance or other means.
    Comment: Many commenters suggested that the SGI designation does 
not permit the NRC to withhold all information and that the NRC is 
acting illegally and trying to silence those who are trying to improve 
nuclear safety. If instituted, these regulations would compromise the 
public's ability to hold the nuclear industry and its government 
regulators accountable for their management of nuclear facilities and 
materials.
    Response: The Commission recognizes that there are statutory limits 
to the use of the SGI designation. The revised proposed rule remains 
within these limits and describes categories of information that may 
properly be considered SGI. The revised proposed rule recognizes the 
Commission's authority to issue further orders or regulations 
designating information as SGI, provided it is within the scope of 
Section 147 of the AEA.
    The Commission's purpose in proposing this rulemaking is not to 
unnecessarily withhold information from the public, to silence 
criticism of nuclear safety or security policies or to prevent the 
public from offering suggestions for improvement. The proposed SGI 
regulations are intended to ensure adequate protection of the public 
health and safety and the common defense and security by preventing 
authorized disclosure of certain, limited category of information that 
could be used to compromise the security of nuclear facilities and 
materials.
    The Commission always welcomes public input on nuclear safety and 
nuclear security. Members of the public may write letters to the 
Commission, file petitions for rulemaking under 10 CFR 2.802, and file 
requests to institute a proceeding to modify, suspend, or revoke a 
license under 10 CFR 2.206. Members of the public may seek to initiate 
or participate in adjudications held in connection with proposed 
licensing actions. They may also attend public meetings to communicate 
their safety and security concerns. The NRC will always consider and 
respond to public concerns, but it must do so without compromising the 
safety and security of nuclear materials and facilities.
    Comment: One commenter stated that the original proposed rule would 
create a system without rights, duties, and obligations such as those 
in the Freedom of Information Act (FOIA), which would abuse the open 
government principles on which the United States was founded. Other 
commenters proposed that a final rule include procedures for 
designating

[[Page 64009]]

officials who may withhold SGI, to provide oversight of the system, and 
to allow for review or appeal of SGI or SGI-M determinations. A 
commenter stated that the NRC has not provided an individual the 
opportunity to challenge an SGI determination by appealing to the head 
of the agency. A commenter expressed concerns that a final rule needed 
the types of controls and checks that are built into the national 
security classification system. According to the commenter, there are 
no mechanisms for reviewing and appealing decisions to categorize 
information as SGI; the rule has an inadequate mechanism for removing 
information from SGI status once it has been categorized; there are no 
truly independent bodies to exercise oversight over SGI determinations; 
there is no recognized channel for getting disputes over SGI status 
into court; and there are insufficient mechanisms for making the 
portions of SGI information which would not present a risk in the form 
of redacted documents available to Congress, the news media, and the 
public.
    Response: Section 147 of the AEA sets forth the substantive legal 
requirements governing the protection of SGI. Section 147 of the AEA 
does not require the Commission to develop FOIA-like appeal procedures 
to resolve individual challenges to SGI designation on a case-by-case 
basis.
    Creation of FOIA-like appeal procedures would result in a 
cumbersome administrative process for SGI designation and potentially 
require substantial resources to implement and administer. The 
preferred approach is the one the Commission is proposing here--
providing the public notice of and opportunity to comment on categories 
of information the Commission would consider SGI.
    Throughout this rulemaking, the Commission has been open about the 
categories of information it seeks to protect and the reasons for 
protecting that information. The Commission is giving the public 
adequate notice of the approach and ample opportunity to challenge the 
Commission's SGI designations on a generic basis. There is no need to 
develop procedures for challenging the designation of information as 
SGI or SGI-M.
    Comment: One commenter proposed that the NRC should followup this 
rulemaking with the deletion of or revisions to current orders and 
advisory letters. In the interim, NRC should, by order or regulation, 
state that the revised regulations supersede all conflicting orders and 
advisory letters issued prior to the effective date of the revision to 
the regulations.
    Response: This revised proposed rule incorporates the requirements 
for SGI protection previously described in NRC orders and advisory 
letters. The final rule would, on its effective date, supersede all SGI 
orders and advisory letters issued prior to that effective date. The 
Commission will, however, take administrative action to withdraw all 
previously orders where appropriate.
    Comment: One commenter recommended that the NRC rule specify that 
security information or plans associated with a licensee possessing, 
using, transporting, or offering for transport greater than or equal to 
Category (CAT) I quantities of Strategic Special Nuclear Material 
(SSNM) be controlled as Classified National Security Information in 
accordance with the provisions of 10 CFR parts 25 and 95. In addition, 
the commenter recommends that the NRC revise the final rule with 
respect to the protection of information associated with security 
information and plans for a licensee possessing, using, transporting, 
or offering for transport CAT II and III quantities of special nuclear 
material (SNM) to utilize a risk-informed and graded approach 
consistent with the change to CAT I SSNM, specifically:
    (1) Security information and plans for licensees possessing, using, 
transporting, or offering for transport less than a formula quantity of 
SSNM but greater than or equal to a CAT II quantity of SNM (consisting 
of U-233, Pu, or high-enriched U-235 (enriched to 20 percent or more)) 
should be controlled as SGI per the requirements of Sec. Sec.  73.21 
and 73.22 of the original proposed rule;
    (2) Security information and plans for licensees possessing, using, 
transporting, or offering for transport less than a CAT II quantity of 
SNM (consisting of U-233, Pu, or high-enriched U-235 (enriched to 20 
percent or more)), but more than 10 kg of a CAT III quantity of SNM, or 
a CAT II quantity of low-enriched U-235 (enriched to less than 20%) 
should be controlled as SGI-M per the requirements of Sec. Sec.  73.21 
and 73.23 of the original proposed rule;
    (3) The risks associated with security information and plans for 
licensees possessing, using, transporting, or offering for transport 
less than a CAT III of SNM do not require protection under part 73.
    The commenter suggests that this approach would provide greater 
regulatory clarity than the NRC's original proposed rule language of 
``fuel cycle facilities required to implement security measures'' and 
``fuel cycle facilities'' in Sec. Sec.  73.21(a)(1)(i) and 73.22 
introductory text, respectively, by clearly identifying de minimis 
levels of SNM requiring protection.
    The commenter also recommends that the NRC revise part 76 to 
incorporate this graded approach for certificate holders under part 76, 
because the requirements for protection of CAT I, II, or III SNM under 
parts 70 and 76 should be the same.
    Response: The revised proposed rule language clearly indicates that 
it only applies to information that is not classified as Restricted 
Data or National Security Information. If the specific information is 
considered to be Restricted Data or National Security Information it 
would be protected as such and the SGI provisions would not apply.
    The NRC staff agrees that a graded approach should be used, and the 
revised proposed rule uses a graded approach. The staff agrees that 
additional clarification is necessary to explain what is meant by fuel 
cycle facilities. The original proposed rule text has been revised to 
add clarity. Fuel fabrication facilities, uranium enrichment 
facilities, uranium hexafluoride conversion facilities, and independent 
spent fuel storage installations will be subject to the provisions in 
Sec.  73.22 for SGI. Research and test reactors and other facilities 
that have special nuclear material of low or moderate strategic 
significance will be subject to the provisions of Sec.  73.23 for SGI-
M.
    Comment: One commenter suggested that a final rule either: (1) 
Remove the designation of site access information as SGI; or (2) 
specify that the ``need to know'' includes the protection of employment 
and labor rights, so that individuals involved in employment-related 
grievances, arbitration, litigation, and/or labor contract negotiations 
and administration may gain access to relevant SGI when such 
individuals qualify as ``Individuals Authorized to Access Safeguards 
Information''. Also, the commenter requests that the rule set forth a 
procedure by which employees and their representatives may apply to 
gain access to relevant SGI for the protection of employment and labor 
rights so that individuals involved in employment-related grievances, 
arbitration, litigation and/or labor contract negotiations and 
administration may gain access to relevant SGI when such individuals do 
not qualify as ``Individuals Authorized to Access Safeguards 
information.''
    The commenter asserts that it is additionally problematic that site 
access information is SGI because it could lead to an unnecessary 
chilling effect having adverse safety implications. Removing

[[Page 64010]]

site access information as SGI or, alternatively, establishing 
provisions whereby employees and their representatives may obtain such 
information, will prevent violations of individuals' rights under 
applicable laws and will not compromise the safety of nuclear 
facilities.
    Response: The revised proposed rule would not designate ``site 
access information'' as SGI and is not intended to discourage 
individuals from raising safety or security concerns to licensees or 
the NRC. Employees of NRC licensees who feel they have been retaliated 
against for raising safety or security concerns are encouraged to seek 
potential enforcement action through the NRC and to go to the 
Department of Labor for potential personal remedies.
    There is no presumptive ``need to know'' for agents representing 
employees of NRC licensees in employment-related grievances. The 
revised proposed rule would not establish a special procedure by which 
agents representing employees of NRC licensees may have access to SGI, 
but the Commission retains the authority to grant such access if the 
circumstances of an individual case so require.
    Comment: One commenter contended that the Commission lacks the 
statutory authority to impose regulations for the protection of SGI 
pertaining to the security measures of State licensees. According to 
this commenter, the licensees or applicants referred to in Section 147 
of the AEA are clearly those of the Commission only, and not of the 
Agreement States.
    Response: Section 147a. of the AEA requires the Commission, in 
relevant part, to prescribe such regulations or issue such orders as 
necessary to prohibit the unauthorized disclosure of SGI. The 
Commission also has authority under Subsections 161b. and 161i. to 
issue rules, regulations, or orders to protect the common defense and 
security. Moreover, Section 274m. of the AEA, ``Cooperation with 
States,'' provides that no agreement entered into pursuant to Section 
274b. shall affect the Commission's authority under Subsections 161b. 
and, 161i.
    As to the commenter's assertions regarding the terms ``licensee'' 
or ``applicant,'' the plain language of Section 147 refers simply to 
``licensee's or applicant's [detailed information].'' Section 147 draws 
no distinction between a ``Commission licensee'' as the commenter 
asserts and an ``Agreement State licensee.'' Thus, on its face, the 
statute does not support the commenter's viewpoint.
    Comment: One commenter suggested that a final rule should focus not 
only on SGI and SGI-M material, but should include rules for the 
protection of other levels of information.
    Response: The scope of this rulemaking, as stated in the original 
proposed rule, is limited to amending the regulations for the 
protection of SGI. Other types of information are governed by separate 
requirements. For example, an executive order, applicable government-
wide, controls Classified National Security Information. E.O. 12958, as 
amended, ``Classified National Security Information'', and related 
directives of the Information Security Oversight Office, National 
Archives and Records Administration, April 20, 1995. NRC regulations 
found in 10 CFR 2.390 govern handling of other categories of sensitive 
unclassified information. The NRC has determined that no further 
changes to NRC regulations are warranted at this time.
    Comment: One commenter questioned the ``correct'' categorization of 
information the NRC considers to be SGI. According to the commenter, 
when a Department of Energy (DOE) facility is licensed, there may be 
difficulties in deciding if the information should be Classified 
National Security Information (CNSI) or SGI. On the other hand, the 
commenter asserted that ``Official Use Only'' should be considered 
before marking the information as SGI.
    Response: The proposed amendments to the regulations reflect the 
statutory definitions of SGI in Section 147 of the AEA. The Commission 
believes that the definitions in the revised proposed rule accurately 
reflect the information described in Section 147 as SGI. Both the 
relevant proposed amendments to part 73 as well as guidance that would 
be issued by the staff would assist licensees in correctly designating 
information to be protected as SGI. The DOE has previously demonstrated 
that it has a comprehensive program governing the classification of 
information. As noted in the original proposed rule, any information 
classified as National Security Information would carry that 
designation and not be designated as SGI.
    It is appropriate for any entity possessing sensitive information, 
classified or otherwise, to consider all possible and appropriate 
classifications/designations of information when making decisions to 
protect such information from public disclosure. The Commission expects 
that information falling within the definition of SGI will be so 
designated, thus mandating the withholding of the information from 
public disclosure and that only information properly characterized as 
SGI will be designated as such. In this regard, the Commission notes 
that information marked as ``Official Use Only'' does not assure that 
the information will be withheld from public disclosure.
    Comment: One commenter recognized that requirements in 10 CFR 
73.22, for SGI, would apply to reactors and licensees authorized to 
possess a formula quantity of SSNM, while requirements in 10 CFR 73.23, 
for SGI-M, would apply to licensees authorized to possess certain 
quantities of source and byproduct material and SNM of moderate or low 
strategic significance. The commenter pointed out that some licensees 
are authorized to possess, in one license, in excess of a formula 
quantity of SSNM, in addition to a significant quantity of source 
material and byproduct material. The commenter suggested that the rule 
is not clear on whether such a licensee should follow Sec.  73.22 or 
Sec.  73.23. The commenter further suggested that it would seem 
burdensome for a single licensee to have separate SGI and SGI-M 
programs. Another commenter noted that industry discussions with the 
NRC led it to believe that controlling SGI-M documents under its 
existing SGI program was acceptable; however, the proposed changes in 
paragraph (d) of Sec. Sec.  73.22 and 73.23 appear to contradict that 
position and expand the marking and handling requirements to apply to 
both SGI and SGI-M documents. That commenter noted that, given the 
effectiveness of the current program, there does not appear to be any 
justification for the additional marking requirements in paragraph (d).
    Response: The NRC agrees with the comment that it could be 
inefficient for licensees possessing categories or quantities of 
material under Sec. Sec.  73.22 and 73.23 to implement both information 
protection schemes. Licensees subject to both Sec. Sec.  73.22 and 
73.23 would be in compliance with the requirements for protection of 
SGI if they implement the higher protection standards in Sec.  73.22, 
or they may choose to implement a multi-level approach. Licensees with 
a single-level information security system could use the marking 
``Safeguards Information'' in place of ``Safeguards Information--
Modified Handling.'' This alternative would be appropriate because the 
facility security measures and associated information protection 
requirements would be based on the higher category of asset possessed 
by the licensee.
    A primary difference between the SGI protection requirements in 
Sec.  73.22 and the SGI-M protection requirements in Sec.  73.23 is how 
the information is

[[Page 64011]]

marked and stored. SGI in the former category is marked ``Safeguards 
Information'' while the latter category is marked ``Safeguards 
Information designated as Safeguards Information-Modified Handling.'' 
The different markings are associated with different storage 
requirements. SGI described in Sec.  73.22 must be stored in a locked 
security storage container, but SGI described in Sec.  73.23 has a less 
stringent storage requirement--the information must be stored in a 
locked file drawer or cabinet or may be stored in a security container 
as described in Sec.  73.22.
    Proper marking is necessary when SGI is communicated between 
entities or parties so that the recipient does not receive a document 
with markings that would require storage in a container that the 
recipient does not possess. It is the duty of the licensee or applicant 
who transfers documents containing SGI to a party beyond their control 
to ensure that the document is properly marked. Without the appropriate 
document markings, the sender inadvertently could cause a violation of 
the regulations.
    Comment: One commenter noted that the expanded types of documents 
that must be handled as SGI or SGI-M and the addition of marking 
requirements will require additional effort and time to implement. 
Therefore, the commenter suggested that the rule allow at least one 
year for the licensee to effectively implement the requirements.
    Response: The NRC recognizes that SGI requirements require effort 
and time to implement, but does not concur that one year is necessary 
for implementation. This revised proposed rule reflects orders already 
imposed by the Commission and would expand the types of security 
information covered by Sec.  73.2. Considering the scope of the rule, 
the Commission proposes to set an effective date for the final rule of 
90 days from publication in the Federal Register.
    Comment: One commenter stated that the reference in the 
Supplementary Information portion of the original proposed rule to 
criminal penalties for violation of Commission requirements governing 
SGI should clarify that criminal sanctions are only imposed for willful 
violations.
    Response: In response to this comment, the relevant language in 
Section I. (``Background'') of this revised proposed rule has been 
changed to remove ambiguity about the application of criminal penalties 
for violations of the AEA (i.e., such penalties apply to willful 
violations only).
    Comment: One commenter asked whether DOE facilities licensed by the 
NRC would be excluded from all orders.
    Response: To the extent that the NRC has regulatory authority over 
a DOE facility, the NRC has the authority to issue orders to the DOE 
applicable to that facility.
3. Section-Specific Comments
Parts 60 and 63: Disposal of High-Level Radioactive Waste in Geologic 
Repositories; Disposal of High-Level Radioactive Wastes in a Geologic 
Repository in Yucca Mountain, Nevada
    Comment: One commenter suggested that the degree of information 
security required for facilities licensed under parts 60 and 63 is 
insufficient for the protection of National Security Information and is 
inconsistent with long-standing NRC classification guidance, recent 
Commission and staff actions, as well as the 2004 ``Joint DOE and NRC 
Sensitive Unclassified Information and Classification Guide for the 
Office of Civilian Radioactive Waste Management Program'' (CG-OCRWM-1, 
which is non-public). The commenter contends that this inconsistency in 
language will cause regulatory confusion and could lead to inadequate 
protection of National Security Information or inadequate enforcement 
authority.
    Specifically, the commenter notes that the proposed language in 
Sec. Sec.  70.22, 70.32, 73.2, and 73.22 refers to physical security, 
safeguards contingency, and guard qualification and training plans 
information being controlled as SGI per Sec. Sec.  73.21 and 73.22. 
However, CG-OCRWM-1, the commenter notes, indicates that certain 
information associated with the proposed Yucca Mountain repository will 
be considered National Security Information.
    In addition, the commenter contends that Sec. Sec.  60.21, 60.42, 
63.21, and 63.42 refer to the ``design for physical security'' to be 
protected as SGI, but does not mention the ``physical security plan.'' 
The commenter suggests that the NRC explicitly require the physical 
security plan for a repository licensed under parts 60 or 63 be 
protected as SGI or classified information, to ensure that the plan 
itself is properly protected and that greater regulatory consistency is 
maintained. In addition, the commenter recommends that the NRC revise 
parts 60 and 63 to require design for physical security and the 
physical security, safeguards contingency, and guard qualification and 
training plans be controlled as SGI or classified information per parts 
25 and 95.
    Response: The SGI definition includes the disclaimer that it does 
not include information classified as National Security Information or 
Restricted Data. Any information covered by the classification guide as 
constituting National Security Information would continue to be 
classified. The proposed regulation would cover security related 
information that is not covered by the classification guide. Changes to 
this revised proposed rule are not necessary to specify which 
information is considered to be National Security Information and which 
is SGI, however, changes to the original proposed rule have been made 
in Sec. Sec.  60.21, 60.42, 63.21, and 63.42 to clarify that security 
information associated with a geologic repository would be protected as 
SGI or as classified information. The NRC has also revised the original 
proposed rule language to remove the inconsistency in terminology for 
the ``physical security,'' ``safeguards contingency,'' and ``guard 
qualification and training plans.''
    Comment: One commenter suggested that the program entitled ``Joint 
DOE and NRC Sensitive Unclassified Information and Classification Guide 
for the Office of Civilian Radioactive Waste Management Program'' 
remains an adequate and acceptable program, as written, for the 
identification of SGI and its continued use in the part 63 licensing 
process will be in compliance with this rulemaking.
    Response: A classification/designation guide, ``Joint DOE and NRC 
Sensitive Unclassified Information and Classification Guide for the 
Office of Civilian Radioactive Waste Management Program,'' has been 
issued by the NRC and the DOE. This guide reflects the current laws and 
regulations governing classification and designation of information 
required to be protected from unauthorized disclosure. The NRC staff 
believes that this guide represents the information proposed to be 
protected by the current rulemaking.
Part 73: Physical Protection of Plants and Materials

Section 73.2 Definitions

    The Commission received numerous comments on the definitions. 
Commenters asked the Commission to revise, delete, or add definitions 
for terms used in the rule. Some new terms have been added because of 
changes made in other sections of the revised proposed rule. Public 
comments and responses to the comments, as well other reasons for 
changes to Sec.  73.2, are presented below.

[[Page 64012]]

Comprehensive Background Check
    Comment: Commenters suggested that the term ``comprehensive 
background check'' be defined.
    Response: The Commission has changed the phrase ``comprehensive 
background check'' to ``background check'' in the new proposed rule. 
The change is intended to more clearly distinguish the background check 
requirements of this revised proposed rule from the background 
investigation requirements of other regulations governing access 
authorization (10 CFR 73.56). Background investigations required under 
those regulations are arguably more comprehensive. To avoid the 
impression that the background check that would be required by this 
rule would be more stringent or probing than background investigations, 
the word ``comprehensive'' has been deleted.
    The Commission has included a general definition of ``background 
check'' in Sec.  73.2 of the revised proposed rule. A background check 
performed to determine the trustworthiness and reliability of an 
individual to be authorized access to SGI or SGI-M includes, at a 
minimum, a criminal history check, verification of identity, employment 
history, education, and personal references. The EPAct expanded the 
NRC's authority to fingerprint, and as such, entities engaged in 
activities subject to regulation by the Commission, entities who 
applied for licenses or certificates to engage in Commission-regulated 
activities, and entities who have notified the Commission in writing of 
an intent to file an application for licensing, certification, 
permitting, or approval of a product or activity subject to regulation 
by the Commission would be required under 10 CFR 73.57 to conduct 
criminal history checks, including fingerprints, before granting access 
to SGI or SGI-M to the employees of the individual's organization.
    Ultimately, the decision whether an individual is sufficiently 
trustworthy and reliable to receive SGI or SGI-M is made by the person 
granting access. In the case of information held by the NRC staff and 
the originator, the NRC staff would make the determination. The 
background check must be sufficient to support a trustworthiness and 
reliability determination so that the person granting access and the 
Commission have reasonable assurance that individuals granted access to 
SGI do not constitute an unreasonable risk to the public health and 
safety or the common defense and security.
    To reiterate, the background check that would be required by this 
revised proposed rule may not completely satisfy the background 
investigations required under other regulations. Nor does the 
trustworthiness and reliability determination based on the background 
check that would be required by this revised proposed rule satisfy the 
trustworthiness and reliability objectives of other regulations. For 
example, determining trustworthiness and reliability under 10 CFR 73.56 
requires not only a background investigation, but a psychological 
assessment and behavioral observation as well. Determining 
trustworthiness and reliability under 10 CFR 26.10 requires chemical 
and alcohol testing under a fitness-for-duty program. Those 
requirements are separate from the requirements of this revised 
proposed rule.
    The NRC staff plans to issue further guidance that will include a 
discussion of acceptable background checks to support a licensee's 
trustworthiness and reliability determinations.
Detailed Control and Accounting Procedures
    Comment: One commenter suggested that the term ``detailed control 
and accounting procedures'' for SNM needs clarification, for example, 
as to whether it includes: (1) The written directions for transferring 
fuel between the fuel pool and the reactor; (2) the outage schedule 
that shows when fuel movement occurs; (3) the real-time communication 
channels or video-monitoring to support fuel movement; or (4) the 
computer and software that performs the isotopic calculations for 
irradiated fuel. The commenter is concerned that restricting access to 
these types of detailed information would significantly hamper work 
coordination and communication within the protected area, without 
affecting what is commonly known outside the protected area in a more 
general sense.
    Response: In response to the request in this comment, the 
Commission notes that ``detailed control and accounting procedures'' do 
not include any of the four types of information set forth in this 
comment. Therefore, there should be no concern about restricting access 
to these types of information on the basis that they are SGI.
High-Level Radioactive Waste, Spent Nuclear Fuel, and Irradiated 
Reactor Fuel
    Comment: A commenter requested that these terms be defined in Sec.  
73.2.
    Response: The revised proposed rule would make conforming changes 
to 10 CFR part 72, ``Licensing Requirements for the Independent Storage 
of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-
Related Greater than Class C Waste.'' The terms ``high-level 
radioactive waste'' and ``spent nuclear fuel'' are defined in existing 
10 CFR 72.3. These definitions of ``high-level radioactive waste'' and 
``spent nuclear fuel'' would not be affected and would continue to 
apply. The description of ``irradiated reactor fuel'' provided in Sec.  
73.37 includes certain spent fuel described in parts 71 and 72, is 
consistent with the definition of spent fuel in the Nuclear Waste 
Policy Act (NWPA), and appropriately uses a graded approach for 
physical protection and safeguards considerations. Therefore, the 
Commission does not believe a separate definition of the term is needed 
in Sec.  73.2.
Safeguards Information (``SGI'')
    Comment: Commenters stated that the definition of this term in the 
original proposed rule is too broad. They asked that the terms used in 
Section 147 of the AEA, ``a licensee's or applicant's'' detailed 
information, be included in the rule's definition of SGI.
    Response: This revised proposed rule modifies the definition of SGI 
to more closely track the language in Section 147, by including the 
term ``licensee's or applicant's [detailed information].'' However, SGI 
could include information other entities generate, e.g. vendors, as 
such information could ultimately identify a licensee's or applicant's 
detailed procedures, security measures, or other information within the 
scope of Section 147.
    Comment: A commenter suggested that while security measures to 
protect certain plant equipment vital to the safety of production or 
utilization facilities should be protected as SGI, the location of the 
equipment should not be included within the definition of SGI.
    Response: As set forth in Section 147 of the AEA, SGI includes 
``security measures for the physical protection of and the ``location 
of certain plant equipment vital to the safety of production or 
utilization facilities involving nuclear material covered by paragraphs 
(1) and (2) [of Section 147a]''. The Commission has determined, in 
accordance with Section 147a.(3) of the AEA, that the unauthorized 
disclosure of this type of information could reasonably be expected to 
have a significant adverse effect on the health and safety of the 
public or the common defense and security. As required by Section

[[Page 64013]]

147a.(3)(A), the Commission applied the minimum restrictions necessary 
to protect the health and safety of the public or the common defense 
and security in making this determination. As noted in the Statement of 
Considerations for the original proposed rule, one purpose of this 
rulemaking is to include in part 73 the types of information the 
Commission may protect as SGI, based on the description of SGI in 
Section 147 of the AEA. Accordingly, the Commission is keeping the 
language which is the subject of this comment in the definition of SGI 
in Sec.  73.2.
    Comment: A commenter requested that the definition of SGI in Sec.  
73.2 include language that allows for temporary status of SGI, based, 
for example, on a six-month period in which there would be an immediate 
risk if the information were disclosed.
    Response: Designation of information as SGI is not static. Section 
73.22(h), ``Removal from Safeguards Information category'' would 
require that documents originally containing SGI must be removed from 
the SGI category, in accordance with the criteria in Sec.  73.22(h), at 
such time as the information no longer meets the criteria contained in 
part 73. In addition, a review of such documents to make that 
determination shall be conducted every 10 years. Documents that are 10 
years or older and designated as SGI or SGI-M shall be reviewed for a 
decontrol determination if they are currently in use or removed from 
storage. The Commission sees no need to modify the definition of SGI to 
reflect the non-permanent nature of the SGI designation, as the 
commenter requests.
    Comment: According to another comment, the definition of SGI should 
not allow a source or byproduct material ``exemption'' that would allow 
the NRC to categorize anything as SGI if it believed disclosure of that 
information could have an adverse effect on the public health and 
safety or the common defense and security. The commenter expressed 
concern that such language could be overused or abused, and therefore 
suggested that it be eliminated and that the definition of SGI be more 
precise and have clearly defined limits.
    Response: Section 147a.(2) of the AEA specifically includes as SGI 
security measures for the physical protection of source material or 
byproduct material in quantities determined by the Commission to be 
significant to the public health and safety or the common defense and 
security. The Commission has appropriately defined the categories of 
information to be protected as SGI or SGI-M in this rulemaking. Those 
categories are within the limits of the Commission's authority under 
Section 147 of the AEA.
    Comment: A commenter objected to the ``blanket exemption'' in the 
definition of SGI and requested that this ``exemption'' be eliminated. 
According to the commenter, such an ``exemption'' was unnecessary and 
could adversely impact workers'' and communities' abilities to monitor 
health risks.
    Response: The definition of SGI does not contain any explicit 
``exemption.'' Therefore, the Commission can only surmise as to the 
``exemption'' to which this comment refers. The commenter may be 
referring to that portion of the definition which reflects the 
Commission's authority, under Section 147a.(3) of the AEA, to determine 
certain security measures to be SGI, provided certain findings are made 
pursuant to Sections 147a.(3)(A) and (B). In exercising this authority, 
the Commission would, as reflected in the SGI definition, make the 
designation by order or regulation as specified in revised 73.22(a)(5) 
and 73.23(a)(5). The Commission is proposing to modify this portion of 
the definition of SGI to make clear that the ``other information'' 
would be within the scope of Section 147.
Safeguards Information-Modified Handling (``SGI-M'')
    Comment: A commenter believes that the definition of this term is 
unclear and should be defined as ``lower-risk information'' and 
therefore have less rigorous restrictions and greater public access.
    Response: The definition of SGI-M in Sec.  73.2 is not as specific 
as the definition of SGI in Sec.  73.2. The main reason for this is 
that SGI-M is SGI for which modified handling requirements apply. As 
stated in the Statement of Considerations for the original proposed 
rule, the term SGI-M ``would be added to reflect this new designation 
for marking [and handling] of SGI subject to this regulation.'' 70 FR 
at 7199. The marking and handling requirements for SGI-M are set forth 
in Sec.  73.23, ``Protection of Safeguards Information-Modified 
Handling: Specific Requirements.'' Those requirements are less 
restrictive than for information marked SGI, for example, requirements 
for unattended storage of SGI-M set forth in Sec.  73.23(c)(2). The 
introductory text of Sec.  73.23 and paragraph (a) of that section 
specifically describe the types of information SGI-M that are subject 
to the handling requirements. Therefore, the Commission sees no need to 
modify the definition of SGI-M in the revised proposed rule.
Significant Adverse Effect
    Comment: One commenter proposed that a final rule define the term 
``significant adverse effect''.
    Response: The term ``significant adverse effect'' appears in 
Section 147.a. of the AEA, in the proposed definition of SGI, and 
elsewhere in the revised proposed rule. The term reflects the 
Commission's authority under Section 147a.(2) and (3) to protect 
against a certain type of unauthorized disclosure of information. Such 
an unauthorized disclosure is one which ``could reasonably be expected 
to have a significant adverse effect on the health and safety of the 
public or the common defense and security by significantly increasing 
the likelihood of theft, diversion, or sabotage'' of material or a 
facility. Thus, a ``significant adverse effect'' is one which could 
significantly increase the likelihood of such effects. The Commission 
believes that this statement adequately describes the term and a 
separate definition is not necessary.
Transportation Physical Security Plan
    Comment: One commenter proposed that the final rule define the term 
``transportation physical security plan''.
    Response: The phrase ``transportation physical security plan'' does 
not appear in the revised proposed rule. The new proposed rule would 
require protection of ``the composite physical security plan for 
transportation'' in Sec.  73.22(a)(2)(i), and ``information regarding 
transportation security measures, including physical security plans and 
procedures'' in Sec.  73.23(a)(2)(i). The revision was made in part 
because not all licensees who would be subject to the revised proposed 
rule are explicitly required to have a ``transportation security 
plan.''
    The revised proposed rule is intended to protect information 
detailing the physical security measures and procedures used to protect 
source, byproduct, and special nuclear material in transit, whether or 
not those measures and procedures are contained in a document labeled 
``transportation security plan.'' Because the term ``transportation 
physical security plan'' is not used in the revised proposed rule, 
there is no need to provide a definition.
Threat Environment
    Comment: One commenter proposed that a final rule define the term 
``threat environment.''
    Response: The phrase, ``threat environment,'' does not appear in 
the revised proposed rule text and, therefore, a definition for that 
term is not warranted.

[[Page 64014]]

Trustworthiness and Reliability
    Comment: Several commenters from both public interest and industry 
groups expressed concern with the proposed definition of 
``Trustworthiness and Reliability'' and whether it is sufficiently 
clear. One commenter wrote that it is conceivable that the criteria 
used to judge ``trustworthiness and reliability'' could be applied 
arbitrarily to restrict access to information by persons deemed to have 
interests in opposition to the NRC or the nuclear industry. This 
commenter also expressed concern that the procedure by which the 
``comprehensive background check'' would be conducted is not clear.
    Another commenter expressed the opinion that the ``definition of 
trustworthiness and reliability does not clearly address how its 
requirements will be uniformly applied for all classes of individuals, 
nor is it clear as to whether there is a necessity for continued 
monitoring, nor is it clear what process an individual who is not a 
utility employee and does not have unescorted access must undergo to 
satisfy the criteria.''
    A third commenter suggested that the definition of trustworthiness 
and reliability should include a link to Sec. Sec.  73.56 and 26.10 
such that a positive conclusion for access authorization and fitness 
for duty would allow a licensee to conclude an individual is 
trustworthy and reliable; however, unescorted access should not be a 
requirement for ``trustworthiness and reliability.''
    Finally, along similar lines, one commenter questioned whether 
elements in Sec. Sec.  73.56 and 26.10 must be completed in order to 
determine trustworthiness and reliability. If that is the case, the 
commenter suggested that it should be specified. The commenter also 
expressed concerns that such a definition would be challenging to 
administer, especially for contract engineering firms who are never at 
the site.
    Response: Ultimately, the decision whether an individual is 
sufficiently trustworthy and reliable to receive SGI is made by the 
person granting access based on a background check. The background 
check must be sufficient to support the trustworthiness and reliability 
determination so that the person granting access and the Commission 
have reasonable assurance that granting an individual access to SGI 
does not constitute an unreasonable risk to the public health and 
safety or the common defense and security. The general elements of a 
background check are defined in the revised proposed rule and discussed 
briefly above.
    Not all persons who would be subject to this rule will have fitness 
for duty or access authorization programs, so the revised proposed rule 
does not include cross-references to trustworthiness and reliability 
requirements in Sec. Sec.  26.10 or 73.56. Trustworthiness and 
reliability determinations required by those regulations may inform or 
serve as the trustworthiness and reliability determination that would 
be required under this revised proposed rule, if those determinations 
are based on a background check that also meet the requirements of this 
rule. The NRC staff plans to issue further guidance that will include 
discussion of acceptable background checks to support a licensee's 
trustworthiness and reliability determinations.
    There is no requirement in this revised proposed rule that an 
individual determined to be trustworthy and reliable undergo a periodic 
background check to confirm or monitor trustworthiness and reliability. 
However, should a licensee learn of information that would reasonably 
call into question the trustworthiness and reliability of an individual 
authorized access to SGI or SGI-M, the licensee should re-evaluate the 
individual. In the case of NRC adjudicatory proceedings where 
subsequent requests for access are made, a new determination may be 
required depending on the length of time that has elapsed between 
requests.
    The trustworthiness and reliability determination based on a 
background check that would be required does not necessarily satisfy 
the trustworthiness and reliability objectives of other regulations. 
For example, determining trustworthiness and reliability under 10 CFR 
73.56 requires not only a background investigation, but a psychological 
assessment and behavioral observation as well. Determining 
trustworthiness and reliability under 10 CFR 26.10 requires chemical 
and alcohol testing under a fitness-for-duty program. Those 
requirements are separate from the requirements of this rule.
    The Commission realizes that the trustworthiness and reliability 
requirement could be difficult to administer. But the same is true of 
many requirements aimed at monitoring the behavior and character of 
individuals. That does not make the requirement any less essential to 
ensuring safety and security. Determining trustworthiness and 
reliability is crucial to minimizing the risk that SGI will be 
compromised, and the Commission expects persons making trustworthiness 
and reliability determinations to do so in a fair and reasoned way.

Section 73.21 Protection of Safeguards Information: Performance 
Requirements

    Comment: One commenter suggested that Sec.  73.21 be revised to 
require SGI protection for information associated with the 
transportation of spent nuclear fuel (SNF) or high level waste (HLW) in 
greater quantities than 15 grams in order to be consistent with the 
NRC's fissile exemption limit for transportation purposes found in 
Sec.  71.15(b). As a conforming change, the commenter also proposed 
that Sec.  73.2 be revised to include definitions for ``spent nuclear 
fuel,'' ``high-level radioactive waste,'' and ``irradiated nuclear 
fuel,'' and that Sec.  73.72 should be revised in the final rule to 
refer to advance notifications of shipments of greater than 15 grams of 
SNF or HLW.
    Response: The Commission believes that the physical protection 
measures for shipments involving 100 grams or more of irradiated 
reactor fuel are appropriately controlled as SGI per Sec.  73.22. 
Detailed security measures, physical security plans and procedures for 
the transportation of source, byproduct, and SNM in greater than or 
equal to Category 1 quantities of concern are designated as SGI-M 
pursuant to Sec.  73.23(a)(2)(i). Those quantities cover the lower 
threshold for material as proposed by the commenter. NRC orders issued 
to persons transporting such materials require protection of such 
information and material when in transit.
    In response to the comment requesting definitions of the terms 
``spent nuclear fuel,'' ``high-level radioactive waste,'' and 
``irradiated nuclear fuel,'' the Commission noted that the first two 
terms are defined in 10 CFR 72.3 and the third term is described in 
Sec.  73.37. Therefore, separate definitions of these terms in part 73 
are unnecessary.

Section 73.21(a)(1)

    Comment: Two commenters suggested that the use of the terms ``fuel 
cycle facilities required to implement security measures'' in Sec.  
73.21(a)(1)(i) and ``fuel cycle facilities'' in the introductory 
language of Sec.  73.22 are unclear. The commenters requested 
clarification on whether this is meant to apply to all fuel cycle 
facilities, or only those authorized to possess a formula quantity of 
special nuclear material, and not low strategic significance fuel cycle 
facilities, where SGI-M requirements might apply.
    Response: The Commission has changed the text of the new proposed 
rule by deleting the phrase ``fuel cycle facilities'' and replacing it 
with ``uranium hexafluoride production

[[Page 64015]]

facilities, fuel fabrication facilities, and uranium enrichment 
facilities.'' Fuel cycle licensees authorized to possess a formula 
quantity of SSNM remain subject to the requirements of Sec.  73.22 as 
originally proposed.

Section 73.21(a)(2)

    Comment: Two commenters proposed that Sec.  73.21(a)(2) be amended 
to state that information protection procedures employed by Federal law 
enforcement agencies are also deemed to meet the general performance 
requirement, as some licensee facilities are located on Federal lands 
and Federal law enforcement officers respond to security events.
    Response: In response to this comment, the proposed Sec.  
73.21(a)(2) is being modified to provide that information protection 
procedures employed by law enforcement agencies are presumed to meet 
the general performance requirements included in that section.

Section 73.22 Protection of Safeguards Information: Specific 
Requirements

Section 73.22(a) Information To Be Protected

    Comment: One comment recommended that the NRC should specify all 
the types of information and documents that are part of the 
``expansion'' of what is considered to be SGI. Clarification is needed 
as to the meaning and application of undefined terms such as 
``additional security measures,'' ``protective measures,'' and 
``interim compensatory measures.''
    Response: Both the definition of SGI and the description of the 
specific types of information to be protected as SGI provide sufficient 
details as to what information constitutes SGI. Any other information 
to be designated as SGI would be set forth in an order or regulation, 
in compliance with Section 147 of the AEA. Additionally, the terms 
``additional security measures,'' ``protective measures,'' and 
``interim compensatory measures,'' are being deleted from the text of 
Sec.  73.22(a), and therefore need not be defined.

Section 73.22(a)(1) and 73.23(a)(1) Physical Protection

    Comment: A commenter suggested that Sec. Sec.  73.22(a)(1) and 
73.23(a)(1) should be narrowed to those documents that contain 
sufficient detail on the licensee's actual strategies or procedures 
that, if inadvertently disclosed, could reasonably be expected to have 
a significant adverse effect on the health and safety of the public or 
the common defense and security by significantly increasing the 
likelihood of theft, diversion, or sabotage of material or a facility. 
The commenter indicated that it is unnecessary to categorize documents 
as SGI or SGI-M unless the information is specific to the facility or 
its protective strategy, or unless the protective features cannot be 
readily observed by an unauthorized individual from outside the 
Protected Area.
    Response: Proposed Sec. Sec.  73.22 and 73.23 would not protect all 
information related to the materials and facilities described in those 
sections. Sections 73.22 and 73.23 are explicitly limited to the 
protection of SGI and SGI-M. By definition, SGI and SGI-M is 
information the unauthorized disclosure of which could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of sabotage or theft or diversion of source, 
byproduct, or SNM. Sections 73.22(a)(1) and 73.23(a)(1) do not expand 
that limited scope. No changes have been made to the revised proposed 
rule.
    The Commission disagrees that SGI should include only information 
specific to a facility or its defensive strategy. While such 
information clearly requires protection, so does certain generic 
information, such as the design basis threat implementing guidance, 
which describe in detail the specific operational and tactical 
capabilities of the hypothetical adversary force more generally 
described in the design basis threat rule. Those details, which are 
generically applicable to a number of licensees, could be used to 
identify licensee security measures, and if disclosed, could reasonably 
be expected to have a significant adverse effect on the health and 
safety of the public or the common defense and security by 
significantly increasing the likelihood of theft, diversion, or 
sabotage of material or a facility.
    Comment: One commenter suggested that Sec.  73.22(a)(1)(ii) be 
amended to clarify the term ``substantially represent the final design 
features.'' The commenter suggests, for example, that the language 
``substantially represent the final design features such that an 
engineer or security professional could detect vulnerabilities'' would 
provide the necessary clarity.
    Response: The Commission does not believe the language the 
commenter proposes would clarify this provision because the inclusion 
of the phrase ``such that an engineer or security professional could 
detect vulnerabilities'' adds an unnecessary level of complexity. 
Determining ``which site specific drawings, diagrams, sketches, or maps 
substantially represent final design features of the physical security 
system,'' as stated in the revised proposed rule text, is less 
subjective. In addition, SGI need not contain information limited to 
vulnerabilities.
    Comment: A commenter recommended that Sec.  73.22(a)(1)(ii) be 
modified to exclude from the SGI designation site specific drawings, 
diagrams, sketches, or maps that substantially represent the final 
design features of the physical security system which are accessible to 
members of the public. According to the commenter, information relating 
to security features such as fences, barriers, guard posts, and certain 
security cameras are in plain view and therefore not appropriate for 
designation as SGI. The commenter also proposed a similar change to 
Sec.  73.22(1)(a)(iii) that would apply to alarm system layouts showing 
the location of intrusion detection devices, alarm assessment 
equipment, alarm system wiring, emergency power sources, and duress 
alarms which are accessible to the public.
    Response: In response to these comments, the paragraphs cited above 
are being changed to add the phrase ``not clearly discernible by 
members of the public'' at the end of each paragraph.
    Comment: Two commenters felt that the meaning of ``emergency power 
sources'' in Sec. Sec.  73.22(a)(1)(iii) and 73.23(a)(1)(ii) is not 
sufficiently clear as to whether it included emergency power sources 
for alarm systems only or any and all emergency power systems. One 
commenter proposed changing the language to read: ``As installed 
details of alarm system layouts, location, and electrical design, that 
if disclosed, could facilitate gaining unauthorized access to special 
nuclear material, nuclear facilities, or Safeguards Information''.
    Response: The Commission has modified the revised proposed rule 
text in response to this comment by inserting the additional words 
``for security equipment'' after the term ``emergency power sources''.
    Comment: Two commenters noted, with respect to Sec.  
73.22(a)(1)(iv), that not all written physical security orders and 
procedures need to be SGI, as some security procedures are general or 
administrative and do not require SGI protection. Moreover, the 
commenters stated, designation of all security procedures as SGI would 
delay training new employees in the security force. Therefore, the 
commenters proposed that Sec.  73.22(a)(1)(iv) be modified to allow 
flexibility in the control of security procedures. Another commenter 
proposed amending

[[Page 64016]]

Sec.  73.22(a)(1)(iv) to read ``[w]ritten physical security protective 
strategy orders and procedures for members of the security 
organization, duress codes, and patrol routes''.
    Response: In response to these comments, the phrase ``Written 
physical security orders and procedures for members of the security 
organization, duress codes, and patrol schedules'' is modified in the 
revised proposed rule to read ``Physical security orders and procedures 
issued by the licensee for members of the security organization 
detailing duress codes, patrol routes and schedules, or responses to 
security contingency events''.
    Comment: A commenter suggested that it is unnecessary to classify 
documents as SGI or SGI-M unless the information is specific to the 
facility and its protective strategy. Therefore, the commenter proposed 
changing Sec.  73.22(a)(1)(v) to read ``[s]ite-specific design features 
or evaluations of site-specific plant radio and telephone 
communications systems revealing vulnerabilities or limitations in 
operating capability'' in order to narrow the scope of documents to 
those that contain sufficient detail on the licensee's actual 
strategies or procedures that, if disclosed, could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of theft, diversion, or sabotage of material 
or a facility.
    Response: In response to this comment, the language of Sec.  
73.22(a)(1)(v) has been changed in the revised proposed rule to read 
``Site specific design features of plant security'' at the beginning of 
the section. These modifications to the text are not meant to address 
the broader concern already addressed in response to comments on Sec.  
73.22(a)(1) and Sec.  73.23(a)(1). In addition, and as previously 
stated, the incorporation of such language in this section of the rule 
does not exclude certain generic information applicable to a number of 
licensees. Such information could be used, for example, to identify a 
specific licensee's security measures.
    Comment: One comment stated that Sec. Sec.  73.22(a)(1)(vii), 
73.22(a)(1)(viii), and 73.22(a)(1)(ix) reference the safeguards 
contingency plan and training and qualification plan. The commenter 
then pointed out that these are now part of the composite security plan 
that was submitted as a result of the April 29, 2003 Order.
    Response: Before the April 2003 Order, power reactor licensees were 
required to have the following three separate plans: ``physical 
security plan'', ``safeguards contingency plan'', and ``guard training 
and qualification plan''. In response to that order, power reactor 
licensees chose to consolidate these three separate plans into a single 
``security plan''. The original proposed rule text has been revised in 
response to the comment to make clear that the composite physical 
security plan is considered SGI under Sec.  73.22(a)(1)(i).
    Comment: One commenter suggests modifying Sec.  73.22(a)(1)(ix) to 
read ``[a]ll portions of the composite facility guard qualification and 
training program that addresses the licensee's protective strategy'', 
which would delete the language ``plan disclosing features of the 
physical security system or response procedures'' from the end of that 
paragraph. The commenter further suggests that, given that most 
training and qualification plans do not include detailed information, 
these plans be ``decontrolled'' by the NRC.
    Response: In response to this comment, the beginning of Sec.  
73.22(a)(1)(ix) has been changed in the revised proposed rule to delete 
the phrase ``all portions of [the composite facility guard 
qualification and training plan]''. The Commission acknowledges that 
there may be some non-SGI in various licensee security plans and 
accordingly is deleting the phrase ``all portions''. It is not entirely 
clear what this commenter means in seeking to have this category of 
information ``decontrolled''. To the extent the commenter wants 
training and qualification plans to no longer be considered SGI, the 
Commission is not taking that action. Contrary to what is asserted in 
support of this request, this category of information includes details 
warranting protection against unauthorized disclosure.
    Comment: One commenter proposes changing the word ``identity'' in 
Sec.  73.22(a)(1)(x) to ``agency'' or ``organization'' to eliminate any 
potential confusion that ``identity'' could refer to identification of 
specific individuals. In addition, the commenter proposes replacing 
``safeguards or security emergencies'' with ``security contingency 
events'' and making clear that ``armament'' refers specifically to the 
armament of response forces. To have ``armament'' apply to licensees 
would seem to require licensees to protect as SGI each purchase order 
for weapons. The commenter further proposes eliminating ``information 
concerning'' language and using the current part 73 language, and 
therefore having the subsection read ``[r]esponse plans to specific 
threats detailing size, disposition, response times, and armament of 
responding forces.''
    Response: The Commission is changing the language of this provision 
in the revised proposed rule by deleting the phrase ``safeguards or 
security emergencies'' and inserting the phrase ``security contingency 
events.'' As so worded, the section emphasizes that the requirement is 
security-related and also maintains consistency with other regulatory 
provisions. Also, the word ``identity'' is being deleted from the 
phrase to avoid the implication that this provision refers to the 
identification of specific individuals. Finally, the phrase ``of 
response forces'' is added after the word ``armament'' in the revised 
proposed rule. The Commission is retaining the language in this 
paragraph connoting that there could be features of response forces 
related to or derived from those specified in the rule text which also 
warrant protection as SGI. The Commission also declines to adopt the 
commenter's proposed language that would replace the term ``response 
forces'' with ``response plans'' because security-related plans are 
addressed elsewhere in Sec. Sec.  73.22(a)(1).
    Comment: One commenter suggested modifying Sec.  73.22(a)(1)(xi) to 
delete the language ``including the tactics and capabilities required 
to defend against that threat'' because this is covered elsewhere in 
the regulations. In addition, the commenter suggested deleting ``or 
other information'' as it leaves too much room for interpretation. 
Another commenter suggested deleting references to the design basis 
threat in this subsection and elsewhere, or creating more prescribed 
provisions for exactly what is to be covered with respect to design 
basis threat information, as such information is important to public 
participation and knowledge.
    Response: The phrase ``or other information'' is deleted and the 
section is reworded to clarify which information related to the design 
basis threat would be considered SGI. Specifically, the Adversary 
Characteristics Document and other design basis threat implementing 
guidance, which describe in detail the specific operational and 
tactical capabilities of the hypothetical adversary force more 
generally described in the design basis threat rule, are considered 
SGI. The phrase ``including the tactics and capabilities required to 
defend against the threat'' is deleted from the revised proposed rule 
because it is not necessary. Those tactics and capabilities are 
described in licensee security plans which are considered to be SGI.

[[Page 64017]]

    Comment: Several commenters expressed the concern that language in 
Sec.  73.22(a)(1)(xii) would include engineering and safety analyses 
and emergency planning procedures or scenarios within SGI protection, 
and this would suppress information of significant concern to the 
public. Commenters also suggested that the criterion found in Sec.  
73.22(a)(1)(xii) was not sufficiently precise so as to alert a licensee 
as to the type of information to be protected, that the proposed 
language ``exposes such a licensee to second-guessing or enforcement 
action.'' One commenter representing a public interest watchdog group 
stated that the public has a ``right to know what risks they face from 
nearby nuclear facilities'' and that ``public participation has proven 
an effective tool for improving facility performance and safety.'' The 
commenter expressed concern that if the public does not know what is 
going on at a facility, it cannot effectively engage the facility and 
advocate for safety improvements and that if the public was not aware 
of emergency planning procedures, it would be at risk from an accident 
or a possible attack against a facility. In addition, the commenter 
proposes that the NRC should retain the current rule language that 
allows only ``portions of'' documents to be protected as SGI, in order 
to maximize the amount of information that the public receives without 
divulging any protected information.
    Another commenter similarly stated that ``it is crucially important 
that the public has access to information regarding protective measures 
taken by operators to defend their facilities so that they may be held 
accountable'' and that the ``broad category of information that is 
included in these sections, including, especially, safety analyses, 
emergency planning procedures, and any other information related to the 
security of a nuclear facility, sharply hinders the public's ability to 
judge the competency of nuclear operators and the adequacy of their 
programs to protect their facilities and materials.''
    Another commenter expressed concerns that Sec.  73.22(a)(1)(xii) 
could be used to ``suppress faulty assumptions as the basis for 
engineering and safety analyses, which is a significant concern to 
public safety policy analysts and intervenors.''
    Other commenters also provided comments with regard to Sec. Sec.  
73.22(a)(1)(xii) and 73.22(a)(2)(viii). One commenter proposed that it 
should be clear that ``engineering and safety analyses'' mean only such 
analyses pertinent to physical security and not plant safety, as that 
information is already public. Industry commenters expressed concern 
that control of emergency planning procedures as SGI would make 
coordination with local and state agencies difficult, as well as 
affected non-governmental entities, and could jeopardize effective and 
safe operation of a plant. More specifically, one commenter notes broad 
interpretation of these requirements would require state and local 
governmental entities who are not in law enforcement but are involved 
in emergency planning to be verified as ``trustworthy and reliable'' by 
the licensee in order for the licensee to comply with 10 CFR part 50, 
Appendix E IV.B.
    One commenter recommends revising the wording at the end of Sec.  
73.22(a)(1)(xii), proposed as ``by significantly increasing the 
likelihood of theft, diversion, or sabotage of material or a 
facility,'' to ``significantly increasing the likelihood of 
radiological sabotage or theft or diversion of source, byproduct, or 
special nuclear material,'' in order to correspond to the wording used 
in the definition of SGI.
    Response: In response to these comments, the phrase ``related to'' 
at the beginning of Sec.  73.22(a)(1)(xii) is being changed in the 
revised proposed rule to ``revealing site specific details of''. The 
phrase ``unauthorized disclosure of such information'' is changed to 
``unauthorized disclosure of such analyses, procedures, scenarios, and 
information''. These revisions clarify that the analyses, procedures, 
scenarios, and other information described in this section are 
considered to be SGI only if they reveal ``site specific details'' 
about the physical protection of the facility or source material, 
byproduct material, or SNM. To clarify the fact that ``emergency 
planning procedures or scenarios'' should remain publicly available, to 
the extent possible, that phrase is being changed here and elsewhere in 
the rule text, to ``security-related procedures or scenarios''. 
However, security-related information, wherever it occurs, including 
security information that is found within a specific emergency 
preparedness procedure, could potentially need to be protected as SGI. 
Also, in order to provide greater specificity in the revised proposed 
rule text, the phrase ``material or facility'' at the end of the 
revised proposed rule text is changed to ``source, byproduct, or 
special nuclear material''.
    Certain sections of the current rule language, as well as sections 
of the revised proposed rule text, refer to ``portions of'' documents 
to be protected as SGI. For example, current Sec.  73.21(b)(3)(i) 
designates, in pertinent part, ``[p]ortions of safeguards inspection 
reports'' to be SGI. Similarly, in the revised proposed rule text, 
Sec.  73.22(a)(3)(i) refers to ``portions of'' inspection reports as 
constituting SGI. Therefore, it is not correct that the current rule 
only allows protection of portions of documents or information as SGI.
    Because the Commission is revising the original proposed rule to 
more closely track the language of Section 147 of the AEA, the 
Commission is declining to make the suggested change to the end of 
Sec.  73.22(a)(1)(xii) by substituting ``radiological sabotage'' for 
the statutory language of ``sabotage.'' The relevant portions of 
Section 147 refer simply to ``sabotage'' and the Commission is using 
that term in the revised proposed rule.
    The Commission's intent in revising the requirements in part 73 for 
protection of SGI is not to deprive the public of information or to 
suppress faulty assumptions in engineering analyses and safety 
analyses, as some commenters assert. One of the main purposes of these 
proposed amendments is to provide in 10 CFR part 73 the breadth of 
information that Section 147 of the AEA requires the Commission to 
protect. The Commission determined that unauthorized release of this 
information could result in harm to the public health and safety or the 
common defense and security.
    Comment: One commenter noted that, ``as proposed, Sec.  
73.22(a)(1)(xiii) requires `Information required by the Commission 
pursuant to 10 CFR 73.55(c)(8) and (9)' to be protected as SGI without 
explicitly identifying what must be protected as SGI''. The commenter 
suggested that there is no apparent reason to protect this information 
as SGI and the requirement should therefore be deleted.
    Response: The Commission is deleting this paragraph because the 
information described in this paragraph would be protected in Sec.  
73.22(a)(1)(xi).

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

    Comment: One commenter stated that Sec. Sec.  73.22(a)(2) and 
73.23(a)(2) would cover transportation related information that is 
under the DOT's regulations in 49 CFR part 15, ``Protection of 
Sensitive Security Information (SSI)''. If implemented in its current 
form, the commenter continues, these regulations will require licensees 
to handle, at a minimum, transportation security plan risk assessments 
as both SSI and SGI or SGI-M, duplicative requirements that

[[Page 64018]]

add no discernible benefit. Furthermore, the commenter states, 
classification of certain transportation related information as SGI 
will be unworkable. Therefore, the commenter proposes, all of the 
regulatory agencies should reach consensus on what information should 
be protected, reduce the number of classifications, and develop a 
single cohesive nationwide set of information security protection 
standards that includes a clear definition of each classification. If 
the NRC does impose duplicative requirements for protection of 
transportation security-related information in addition to DOT's 
regulations, the commenter further suggests, the NRC should replace 
``transportation physical security plan'' with ``transportation 
security plan'' to be consistent with DOT regulations, or provide a 
definition of ``transportation physical security plan.''
    Response: The NRC recognizes that transportation of radioactive 
material may be subject to the requirements of both the DOT and the NRC 
with respect to protective markings, SSI, SGI, and SGI-M. However, 
requirements for the protection SSI are not as strict as NRC SGI or 
SGI-M protection requirements. The NRC believes that the information 
described in Sec.  73.22(a)(2)(i) requires the higher protection 
afforded by the designation SGI. Similarly, the information set forth 
in Sec.  73.23(a)(2)(i) must be protected as SGI-M. Finally, as noted 
previously, the Commission has replaced the phrase ``transportation 
physical security plan'' with ``composite physical security plan for 
transportation'' to distinguish NRC-required plans from others.
    Comment: One commenter contended that the new language of Sec.  
73.22(a)(2)(ii), ``Routes and quantities for shipments of spent fuel 
are not withheld from public disclosure,'' no longer assures public 
access to route and quantity information for shipments of byproduct or 
source material or nuclear waste. The commenter expresses concern that 
the NRC does not have the authority to limit access to this 
information, for which Congress has specifically protected public 
disclosure in the AEA. The commenter therefore proposes that the NRC 
ensure that the language in the final rule does not undermine the AEA 
by narrowing disclosure requirements.
    Response: The revised proposed rule would not designate shipping 
routes and quantities as SGI or SGI-M. However, the rule would 
designate schedules and itineraries as SGI and SGI-M. Schedules and 
itineraries combine route and quantity information with specific 
information about the timing and security of a shipment to create 
information that, if disclosed, could reasonably be expected to have a 
significant adverse effect on the health and safety of the public or 
the common defense and security by significantly increasing the 
likelihood of sabotage or theft or diversion of nuclear material. 
Section 147a.(3) of the AEA provides in part that ``[n]othing in this 
Act shall authorize the Commission to prohibit the public disclosure of 
information pertaining to routes and quantities of shipments of source 
material, by-product material, high level nuclear waste, or irradiated 
nuclear reactor fuel.'' The revised proposed rule text has been revised 
to be more consistent with the language of Section 147a.(3) of the AEA.
    Comment: One commenter proposed removing Sec.  73.22(a)(2)(vii) on 
the grounds that it is extremely vague and would allow the NRC to 
protect from public disclosure any ``information concerning the tactics 
and capabilities required to defend against attempted radiological 
sabotage, or theft and diversion of formula quantities of special 
nuclear material, or related information.'' The commenter expressed 
concern over the NRC's use of ``vague terms'' such as ``any information 
concerning'' and ``related information'' and suggested that this 
provision could be used to conceal information about a town's 
capabilities to respond to an attack on a rail car passing through it.
    Response: The language ``related information'' portion of this 
section has been deleted from the text of the revised proposed rule 
because it is redundant of the language at the beginning of this 
section (``information concerning''). The text of the rule does not 
include the phrase ``any information concerning'' as stated in the 
comment.
    Comment: Commenters expressed concerns that Sec.  73.22(a)(2)(viii) 
would exempt safety analyses, emergency planning procedures, or other 
information about the protection of transported materials from public 
disclosure as SGI. Accordingly, commenters recommended revising or 
removing Sec.  73.22(a)(2)(viii) in order to ensure that the public has 
access to emergency procedures and safety analyses information they 
need to protect their community. A commenter proposed removing the 
proposed Sec. Sec.  73.22(a)(2)(viii) and 73.23(a)(2)(iv) and (v) on 
the grounds that these proposed changes would prevent communities from 
learning what steps are being taken to protect them and from 
participating in the process of keeping the community safe. The 
commenter expressed concerns that these provisions are overly vague in 
what information may be protected from public disclosure and could 
result in too much information being concealed from the public.
    Response: The Commission recognizes that the public needs 
information about safety and emergency planning and will continue to 
make much of that information publicly available. Therefore, the phrase 
``emergency planning procedures or scenarios'' is being changed to 
``security-related procedures or scenarios''. But a limited amount of 
safety and emergency planning-related information, if publicly 
disclosed, could be used to identify security measures for the 
protection of nuclear facilities and materials, thereby significantly 
increasing the likelihood of sabotage or theft and diversion. For 
example, emergency planning information that specifies response times 
for local law enforcement, or identifies the size, tactics, and 
capabilities of first responders to a radiological event could be very 
useful to a potential adversary in planning an attack. Accordingly, 
that information could conceivably need to be protected as SGI.
    The Commission's intent is not to prevent public knowledge of vital 
safety and emergency information. Hence, the revised proposed rule has 
been changed in response to comments that it was too broadly worded as 
originally proposed. The protection required for engineering and safety 
analyses and security-related procedures or scenarios under Sec.  
73.23(a)(1)(x) would be appropriately limited to information that could 
reasonably be expected to have a significant adverse effect on the 
health and safety of the public or the common defense and security by 
significantly increasing the likelihood of theft, diversion, or 
sabotage of source material, byproduct material, or SNM.

Section 73.22(a)(3) Inspections, Audits, and Evaluations

    Comment: A commenter objected to what it saw as the broadening of 
Sec.  73.22(a)(3) and stated that the proposed change lacks specificity 
and could potentially conceal public health, safety, security, and 
environmental concerns from public disclosure. The commenter expressed 
concern that the provision could be interpreted to include and suppress 
information that rightfully should be brought to the attention of the 
public and policy makers.
    Response: The Commission has eliminated references to specific 
licensees from the revised proposed rule. This clarifies the scope of 
the rule

[[Page 64019]]

and simplifies the text. The commenter provides no basis for the 
assertion that the Commission would use revised Sec.  73.22(a)(3) to 
conceal information from public disclosure. The regulations provide 
access to individuals who have a ``need to know'' the information and 
who are trustworthy and reliable. Protecting SGI and SGI-M from 
unauthorized disclosure does not equate to concealing or suppressing 
information that should be in the public domain.
    Comment: Another commenter suggested that the NRC restore the 
provision in proposed Sec.  73.22(a)(3)(i) to allow the release of 
information developed in inspections, audits, and evaluations 
concerning weaknesses and problems that have been corrected.
    This paragraph retains the provision in current Sec.  
73.21(b)(3)(i) which designates as SGI portions of safeguards 
inspection reports, evaluations, audits, or investigations that contain 
details of a licensee's or applicant's physical security system or that 
disclose uncorrected defects, weaknesses, or vulnerabilities in a 
licensee's or applicant's physical security system. This provision 
implies that corrected defects, weaknesses, or vulnerabilities will be 
released.
    Response: In response to this comment, the proposed rule is revised 
in part, to carry over the portion of Sec.  73.21 that provides for the 
release of information regarding defects, weaknesses, or 
vulnerabilities after corrections have been made. However, as stated in 
the revised text, the disclosure of such information is not automatic, 
and is subject to an assessment taking into account such factors as the 
results of trend analyses and the impacts of disclosures on other 
licensees having similar physical security systems. The partial 
revision of the proposed rule text is consistent with the policy to 
increase the amount of public information released pursuant to the 
Security Oversight Process.

Section 73.22(a)(5)

    Comment: Two commenters suggested that Sec.  73.22(a)(5) lacked 
specificity. One commenter expressed concerns that Sec.  73.22(a)(5) 
was not specific enough to ``allay growing public concerns that the 
agency could arbitrarily and capriciously further conceal or 
subordinate significant public health, safety, and security issues to 
economically shield and benefit the nuclear industry.'' Another 
commenter suggested that the language of Sec.  73.22(a)(5) was an 
``incredible expansion of government secrecy that could allow instances 
of extreme operational incompetence to go unnoticed by the public.'' 
That commenter suggested deleting the ``other information'' language to 
narrow and clarify the rule.
    Another commenter proposed making Sec.  73.22(a)(5) reflect the 
preamble of Sec.  73.22 by stating that orders will only be used to 
classify information in an emergency when rulemaking is not available.
    Response: Section 147 of the AEA explicitly authorizes the 
Commission to proceed by order or regulation to prohibit the 
unauthorized disclosure of SGI. Nothing in the AEA limits the use of 
the Commission's ordering authority to emergency situations. Such a 
restriction could hinder security and safety in the event the 
Commission needs to act quickly to protect SGI not already identified 
in the regulations. The Commission declines to adopt such a limitation. 
However, the Commission has changed the revised proposed rule language 
to clarify that any information that would be categorized as SGI under 
Sec.  73.22(a)(5) would have to be within the scope of Section 147 of 
the AEA, and would be imposed by a new order or rulemaking.

Section 73.22(b) Conditions for Access

    Comment: One commenter remarked that, in the context of Sec.  
73.22(b), there is no benefit from imposing different access 
authorization requirements for nuclear power reactors as compared to 
other licensees.
    Response: In the original proposed rule, access requirements varied 
depending on whether an individual is to be granted access by a nuclear 
power reactor licensee or applicant, as set forth in Sec.  
73.22(b)(1)(i)(A) or by other licensees or applicants covered by Sec.  
73.22, pursuant to Sec.  73.22(b)(1)(i)(B). Such variation was based on 
Section 149 of the AEA, which required each licensee or applicant for a 
license to operate a nuclear power reactor to fingerprint each 
individual permitted access to SGI. The EPAct, however, amended Section 
149 to authorize fingerprinting all individuals engaged in an activity 
subject to regulation by the Commission, licensees, all applicants for 
a license to engage in Commission-regulated activities, and all 
individuals who have notified the Commission in writing of an intent to 
file an application for licensing, certification, permitting, or 
approval of a product or activity subject to regulation by the 
Commission. Fingerprints would be submitted to the U.S. Department of 
Justice for a criminal history check, which would be assessed as part 
of the background check that provides the basis for a trustworthiness 
and reliability determination.

Section 73.22(b)(1)

    Comment: Several comments stated that Sec. Sec.  73.22(b)(1)(i)(B) 
and 73.23(b)(1)(i) in the original proposed rule were unclear as to 
what is meant by ``comprehensive background check or other means as 
approved by the Commission.'' One commenter noted that requiring a 
background investigation has proven to be challenging for 
transportation companies, because the time required for background 
investigations has often prevented transportation companies from 
bidding on some jobs. That commenter suggested that the NRC specify the 
``other means'' that would be acceptable for entities implementing an 
SGI-M program. Another commenter expressed concern that if the 
``comprehensive background check'' was similar to the ``Q'' or ``L'' 
access authorization investigations or checks of 10 CFR part 25, it 
would impose an intolerable burden because of the time and resources 
necessary for the completion of such a check, particularly for those 
entities developing new SGI or SGI-M programs.
    Response: As previously discussed, a definition of ``background 
check'' is now included Sec.  73.2. NRC staff plans to issue further 
guidance that will include a discussion of acceptable background checks 
that would satisfy the rule requirements by ``other means'' and support 
a licensee's trustworthiness and reliability determinations. The 
requirements for access to SGI are different from the provisions for 
access to classified information (part 25) or for access under part 95 
to Classified National Security Information and/or, Restricted Data, 
and/or Formerly Restricted Data.
    Comment: A commenter expressed the concern that Sec.  
73.22(b)(1)(ii)-(vi) in the original proposed rule in combination with 
Sec.  73.22(b)(2) appears to require licensees to perform a Federal 
Bureau of Investigation (FBI) criminal history check for NRC personnel. 
If this is not the case, the commenter proposed that (b)(2) of both 
sections should be modified to state: ``The individuals described in 
paragraph (b)(1)(i) through (vi).''
    Response: The Commission does not interpret the cited provisions of 
the original proposed rule set forth by the commenter as requiring 
licensees to perform FBI criminal history checks for NRC personnel. 
Section 73.22(b)(3) would exempt governmental individuals from the 
requirement for a

[[Page 64020]]

determination of trustworthiness and reliability, including NRC 
employees.
    Comment: One commenter stated that Sec.  73.22(b)(1)(vii) would 
require a licensee to demonstrate trustworthiness and reliability for 
an individual to whom disclosure is ordered pursuant to 10 CFR 
2.709(f). The commenter noted that a licensee should not bear the 
responsibility for making this finding for an intervenor. The commenter 
also noted that the rule was not clear as to when a presiding officer 
would have the responsibility to make this determination--when an 
intervenor wants access to SGI or only if an intervenor appeals a 
party's determination. For these reasons, the commenter suggested 
rethinking the application of these criteria to adjudicatory hearing 
matters and resolving such issues in a separate rulemaking or by 
issuing Commission orders in each case where controlling the 
dissemination and use of SGI might be an issue.
    Response: The rule is not intended to require licensees to 
determine whether intervenors in an adjudicatory proceeding are 
trustworthy and reliable to receive SGI or SGI-M. Presiding officers 
have the authority to make determinations about information disclosures 
if a dispute over access to SGI or SGI-M documents arises. Section 
73.22(b)(4) and 73.23(b)(4) have been added to the revised rule to make 
this clear. Sections 2.709(f) and 2.1010(b)(6) have been revised and 
new Sec. Sec.  2.336(f) and 2.705(c)(2) have been added to the revised 
proposed rule to specify procedures to be followed in the event of such 
a dispute.
    Under the procedures set forth in these provisions, when a party or 
participant in an adjudicatory proceeding seeks production of SGI from 
another party or participant that refuses to produce it, the presiding 
officer has the authority to decide the dispute. The presiding officer 
will make the first determination necessary for access to SGI, which is 
whether the individual seeking access has the requisite ``need to 
know'', as defined in 10 CFR 73.2. If so, the presiding officer may 
order production of the SGI after the second determination is made, 
namely whether the individual to be authorized access to SGI has been 
found to be trustworthy and reliable by the NRC Office of 
Administration, based on a background check (including a criminal 
history records check and fingerprinting). Procedurally, the presiding 
officer may issue an order that designates the information as necessary 
and relevant and that requires the party or participant seeking access 
to SGI or SGI-M to designate those individuals who would receive it. 
The order would also require the NRC Office of Administration to 
determine the trustworthiness and reliability of those individuals 
designated to receive SGI in accordance with the provisions of 
Sec. Sec.  73.22(b) or 73.23(b), as appropriate.
    If the NRC Office of Administration concludes that the designated 
individuals are trustworthy and reliable to receive SGI, the presiding 
officer would issue a second order requiring production of the SGI or 
SGI-M under the provisions of a protective order. Presiding officers 
have the authority to hear appeals on the NRC Office of 
Administration's trustworthiness and reliability determination.
    If parties or participants in an adjudicatory proceeding agree that 
an intervenor has a ``need to know'' and are willing to share the SGI 
or SGI-M without seeking a determination on ``need to know'' from the 
presiding officer, then the parties or participants may do so, provided 
that a protective order has been issued by the presiding officer and a 
trustworthiness and reliability determination has been made by the NRC 
Office of Administration. If the SGI sought by the intervenor is held 
solely by the licensee or applicant, and not the NRC, the licensee or 
applicant may provide the SGI to the intervenor under the terms of the 
protective order. If the SGI is held by both the licensee or applicant 
and the NRC (``dual holders''), the NRC will provide the SGI to the 
intervenor, under the terms of the protective order.

Section 73.22(c)(1) Protection While in Use or Storage

    Comment: Commenters proposed that Sec.  73.22(c)(1) be amended to 
authorize SGI to be stored in the Reactor Control Room not in a locked 
security storage container. The basis for this request is that control 
rooms are continuously manned and this change would allow rapid access, 
if necessary, to pertinent SGI material (e.g., controlled operating 
procedures).
    Response: In response to these comments, Sec. Sec.  73.22(c)(1) and 
73.23(c)(1) are being changed to delete the phrase ``Safeguards 
Information within alarm stations, manned guard posts or ready rooms 
need not be locked in a locked security storage container.'' A new 
phrase is being added to state ``Safeguards Information within alarm 
stations, or rooms continuously occupied by individuals need not be 
stored in a locked security storage container.''

Section 73.22(c)(2)

    Comment: One commenter proposed that Sec.  73.22(c)(2) be modified 
to allow licensees to mark containers as containing SGI, because this 
practice ensures that the importance of those containers is clearly 
understood and because those containers are typically located in areas 
with no public access.
    Response: The Commission is declining to adopt the change proposed 
by the commenter because marking locked security storage containers to 
indicate they contain SGI may assist in identifying the location of 
SGI. The fact that such containers may typically be located in areas 
without public access is irrelevant because not all individuals in such 
areas are authorized for access to SGI. An unauthorized individual 
seeking access to SGI might be aided by such markings, regardless of 
whether the SGI is stored in areas without public access.

Section 73.22(d)(1)

    Comment: One commenter proposed that the term ``first page'' in 
Sec.  73.22(d)(1) be changed to ``first page or cover sheet'' to allow 
licensees to continue with current practice which meets the intent of 
the revised proposed rule.
    Response: The Commission is not modifying Sec.  73.22(d)(1) as the 
commenter suggests because the information specified in Sec.  
73.22(d)(1)(i) through (iii) should be noted on the first page of the 
document itself rather than in a separate document, such as a cover 
sheet. The Commission does not expect that licensees or applicants must 
go back and mark documents for which a cover sheet was used for the 
required information instead of the first page of the document, as set 
forth in Sec.  73.22(d)(1).
    Comment: One commenter suggested that the requirement in Sec.  
73.22(d)(1)(i), and a similar provision in Sec.  73.23(d)(1)(i), 
regarding ``the individual authorized to make a * * * [SGI] 
determination, and who has determined that the document contains'' SGI 
is not clear, for example, as to whether training is required or 
whether a SGI or SGI-M determination requires one or two individuals.
    Response: The commenter is correct that the rule does not prescribe 
specific qualifications for persons who will determine whether or not 
particular information is SGI or SGI-M. Licensees have an incentive to 
select and train competent persons to make these determinations, 
because a finding that a document contains SGI or SGI-M will add to the 
licensee's document-handling

[[Page 64021]]

burdens. At the same time, the Commission recognizes that when there is 
any doubt about whether information is or is not SGI or SGI-M, there is 
an incentive to mark it as SGI. This ``err on the safe side'' tendency 
could lead to unnecessary burdens and over-use of the SGI or SGI-M 
designations. The Commission will consider making appropriate additions 
or changes to resolve this problem if it should arise. Such changes 
might include specifying qualifications for persons who make SGI or 
SGI-M determinations if experience shows this to be necessary. The 
number of individuals necessary to make these designations may vary 
from one licensee to another. The Commission expects that the 
individual(s) who are ``authorized to make a Safeguards Information 
determination'' are the same as the individual(s) who ``determined that 
the document contains Safeguards Information.'' In other words, the 
individual or individuals making the determination must be authorized 
to do so.
    Comment: A commenter suggested that the requirement to designate 
the individual making the SGI determination is ``redundant and 
unnecessary'' for pleadings. The commenter stated that the 
determination can be attributed to the individual signing the pleading.
    Response: The Commission disagrees with this comment, as oftentimes 
the person making an SGI determination will not be the signatory of a 
pleading. Section 73.22(d)(1) ensures that the identity of the person 
making the SGI determination--be it the individual signing the pleading 
or some other individual--is clear. If the signatory also makes the SGI 
determination, the document should be marked in accordance with Sec.  
73.22(d)(1). The Commission does not view this as redundant or 
unnecessary and declines to adopt the commenter's suggestion.

Section 73.22(d)(3)

    Comment: A commenter questioned whether pleadings filed in an 
adjudicatory proceeding would be considered correspondence to the NRC 
requiring portion marking pursuant to Sec.  73.22(d)(3). The commenter 
stated that SGI in a pleading is ``usually integral to the entire 
pleading such that removal of such information would render the 
remainder [of the pleading] of marginal or no use, if released.'' The 
commenter indicated that substantial effort would be required to 
portion-mark pleadings containing SGI. Additionally, the commenter 
concluded that intervenors have a general reluctance to designate a 
particular piece of information as non-SGI because they ``will be 
second-guessed by the licensee or NRC staff.'' For these reasons, the 
commenter stated that there appeared to be little utility added by this 
requirement.
    Response: Pleadings filed in an adjudicatory proceeding before the 
NRC are considered correspondence and therefore would require portion 
marking in accordance with Sec.  73.22(d)(3). Attachments and exhibits 
to pleadings, however, are not considered to be correspondence and, 
therefore, do not require portion marking. For example, a pleading may 
attach portions of a security plan as an exhibit. The attached plan 
would not be required to be portion marked, but instead can be treated 
in its entirety as SGI. The NRC uses portion marking to ensure that the 
pleading is made public without the portion-marked SGI. Although the 
Commission acknowledges that additional effort will be required by 
participants in adjudicatory proceedings to portion mark pleadings, the 
Commission does not believe that the burden is undue, especially when 
compared with the potentially adverse consequences of a malevolent 
adversary obtaining SGI. Finally, the Commission disagrees with the 
commenter's conclusions about intervenors' reluctance to designate 
information as non-SGI. The Commission declines to change Sec.  
73.22(d) in response to these comments.
    Comment: Several comments were received to the effect that the 
portion marking requirements of Sec. Sec.  73.22(d)(3) and 73.23(d)(3) 
for ``Engineering and safety analyses, emergency planning procedures or 
scenarios'' would be burdensome and that the portion marking of 
documents sent to the NRC would impose an unnecessary burden on 
licensees and should therefore not be required. One commenter noted 
that the portion marking requirements would be unnecessary because 
licensees control entire documents as SGI and that the administrative 
benefit to the NRC would not be worth the substantial burden on 
licensees.
    Response: This comment refers to burden on licensees to portion 
mark ``Engineering and safety analyses emergency planning procedures or 
scenarios'' when such information is included in correspondence to or 
from the NRC. For the reason previously stated, the designation of 
``Engineering and safety analyses emergency planning procedures or 
scenarios'' as SGI has been changed throughout the rule text to 
``security-related procedures or scenarios.'' Because many commenters 
otherwise requested clarification of this category of information, 
these sections also have been revised to clarify that the analyses, 
procedures, scenarios, and other information described in this section 
would be considered SGI only if they reveal ``site-specific details'' 
about the physical protection of the facility or source, byproduct, or 
SNM. Licensees and applicants would only be required to portion mark 
analyses, procedures, or scenarios that contain SGI when included in 
transmittal documents for correspondence with the NRC.
    Comment: Another commenter proposed modifying Sec.  73.22(d)(3) to 
provide flexibility on portion marking of correspondence to and from 
the NRC as follows: ``Portion marking of documents or other information 
is allowed for correspondence to and from the NRC,'' which would 
replace ``required'' with ``allowed.'' The commenter suggested that 
this would allow licensees to designate entire documents as SGI without 
having to mark each paragraph if appropriate.
    Another commenter suggested that a document containing SGI should 
be marked as SGI in its entirety, and that when it is appropriate to 
produce documents that contain both SGI and non-SGI, attempts should 
then be made to segregate the SGI into separate sections. The commenter 
noted that in such cases, it would be reasonable to require portion 
marking but not in all cases. Therefore, the commenter proposed, the 
rule must reflect that portion marking is only to be required for 
documents transmitted to or from the NRC in which significant portions 
of the document are clearly non-SGI.
    Response: In response to comments, Sec.  73.22(d)(3) is being 
modified to replace the phrase ``Portion marking of documents or other 
information is required for correspondence to and from the NRC'' with 
the phrase ``Portion marking is required only for correspondence to and 
from the NRC (i.e., cover letters, but not attachments) that contains 
Safeguards Information.'' The NRC declines, however, to amend the 
revised proposed rule so that portion marking of correspondence to and 
from the NRC would be optional. Portion marking of such correspondence 
allows the NRC to release non-SGI to the public.

Sections 73.22(d)(4) and 73.23(d)(3)

    Comment: Four commenters suggested that Sec. Sec.  73.22(d)(4) and 
73.23(d)(3) should not require the marking of documents and other 
matter containing SGI in the hands of contractors and agents of 
licensees that were produced within one year prior to the effective 
date of this rule. One commenter suggested that to the extent

[[Page 64022]]

that these new requirements are different from the existing ones, the 
differences are minor and that, therefore, the regulation should not 
require the conduct of an extensive review of documents produced within 
the last year prior to the promulgation of a final rule. Another 
commenter similarly proposed that marking requirements should only be 
applied to documents generated after the effective date of a final rule 
and should not be applied retroactively to previously generated 
documents. One commenter suggested that Sec.  73.22(d)(4) implies that 
if the document is taken out of storage, even if more than a year old, 
it must be marked.
    Response: The requirement that documents and other matter 
containing SGI in the hands of contractors and agents of licensees be 
marked if they were produced within one year prior to the effective 
date of the rule has been removed from the rule in response to 
comments. Therefore, the marking requirements set forth in this rule 
would apply only to documents generated after the effective date of a 
final rule.

Section 73.22(d)(5)

    Comment: Two commenters proposed that Sec.  73.22(d)(5) should be 
eliminated, as it is redundant to, but inconsistent with, Sec.  
73.22(d)(1), which requires material to be marked ``Safeguards 
Information'' at the top and bottom of each page. One commenter noted 
that the ``Safeguards Information'' designation required in Sec.  
73.22(d)(5) may not alert someone who is not familiar with that 
initialism to the fact that it is SGI and, therefore, that 
inconsistency between Sec. Sec.  73.22(d)(5) and 73.22(d)(1) should be 
eliminated.
    Response: The revised proposed rule has been changed to eliminate 
the redundancies and inconsistencies identified by the commenter. 
Section 73.22(d)(5) in the original proposed rule has been renumbered 
as Sec.  73.22(d)(4) in the revised proposed rule.

Section 73.22(e) Reproduction of Matter Containing Safeguards 
Information

    Comment: One commenter suggested that the new requirement 
prohibiting digital copiers connected to a network, found at Sec. Sec.  
73.22(e) for SGI and 73.23(e) for SGI-M, is difficult in today's 
electronic office environment. Another commenter proposed that Sec.  
73.22(e) should not prohibit the use of a copier, printer, or scanner 
connected to the closed network in the ``stand alone'' computer system 
allowed in Sec.  73.22(g).
    Response: The revised proposed rule has been modified to be less 
prescriptive and more performance-based. Under the revised proposed 
rule, any equipment may be used to reproduce SGI, provided unauthorized 
individuals cannot gain access to SGI by accessing, using, or 
manipulating the equipment (for example, by gaining access to retained 
memory or using network connectivity to access SGI).

Sections 73.22(f) and 73.23(f) External Transmission of Documents and 
Material

    Comment: One comment noted that the double packaging requirement 
for external transmittal of SGI, found in Sec. Sec.  73.22(f) and 
73.23(f), although not onerous, is akin to the protection afforded to 
classified matter. Another commenter proposed that Sec.  73.22(f)(2) be 
rewritten to state that SGI may be transported by any commercial 
delivery or courier company that provides service with tracking 
features, rather than any commercial delivery company that provides 
``nationwide overnight service with computer tracking features'' as the 
original proposed rule reads. The commenter suggests that this would 
allow licensees to continue to use current trusted local delivery 
services.
    Response: The double packaging requirements of the original 
proposed rule are necessary to prevent unauthorized individuals from 
readily identifying that the package contains SGI while in transit, and 
to prevent recipients from inadvertently disclosing SGI to unauthorized 
individuals upon receipt. The double packaging requirements have not 
been changed in the revised proposed rule.
    However, the Commission agrees that local delivery services, so 
long as the carriers have computer tracking capabilities, may be 
permitted to transport SGI. Computer tracking capabilities are 
necessary to aid in quickly determining the location of the information 
so that the risk of unauthorized disclosure may be minimized. Sections 
73.22(f)(2) and 73.23(f)(2) have been changed to reflect that 
nationwide, overnight service would not be a requirement for a 
commercial delivery company to transport SGI.

Section 73.22(g) Processing of Safeguards Information on Electronic 
Systems

    Comment: One commenter proposed that Sec.  73.22(g) contain a 
provision permitting transfer of encrypted SGI over a computer network, 
similar to the proposed Sec.  73.23(g)(2). In addition, a comment 
received noted that the DOE has an SGI protection plan that was 
approved by the NRC to satisfy current Sec.  73.21(h) and has a need to 
retain capabilities for handling SGI as approved, due to a distanced-
managed site. This commenter therefore proposes adding a provision to 
Sec.  73.22(g) to allow the use of other protective measures approved 
by the NRC pursuant to old Sec.  73.21(h) or new Sec.  73.22(g).
    Response: Section 73.22(f)(3) permits electronic transmission of 
SGI by protected telecommunications circuits (including facsimile) or 
encryption (Federal Information Processing Standard [FIPS] 140-2 or 
later).
    Section 73.21(b)(1) of the revised proposed rule would explicitly 
preserve the Commission's authority to require different SGI protection 
requirements in individual cases. If alternative protection methods can 
be devised that provide an equivalent level of protection for SGI, the 
Commission would consider approving those methods on a case-by-case 
basis.

Section 73.22(i) Destruction of Matter Containing Safeguards 
Information

    Comment: Two commenters expressed concern over Sec.  73.22(i), 
which contains requirements for the destruction of matter containing 
SGI. One commenter suggests that Sec.  73.22(i) seemingly permits the 
use of ``strip shredders'' for destruction if pieces are one-half inch 
or less and mixed. The commenter states that this is inconsistent with 
advice given by NRC staff members who believe that a cross-cut shredder 
must be utilized and proposes that the rule clarify whether the use of 
``strip shredders'' is permissible. Another commenter suggested that 
the wording of Sec.  73.22(i) be modified to specify pieces one-half 
inch or smaller on a side to provide important clarification of how 
small the pieces would have to be to constitute destruction.
    Response: The revised proposed rule has been changed in response to 
this comment. The rule would allow the use of strip shredders and other 
shredders that shred pieces no wider than a quarter of an inch if the 
pieces are thoroughly mixed.

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

    Comment: A commenter suggested that establishment and 
implementation of the SGI-M program by licensees with an existing SGI 
program is unnecessary.
    Response: Persons who establish, implement, and maintain handling, 
access, and control procedures for SGI described in Sec.  73.22 would 
have a program sufficient to protect SGI-M

[[Page 64023]]

described in Sec.  73.23 and would not need to establish a second or 
separate SGI-M program. However, special attention would be required 
when transmitting SGI to ensure proper document marking and handling.
    A primary difference between the SGI protection requirements in 
Sec. Sec.  73.22 and 73.23 is in the marking of the information. SGI in 
the former category is marked ``Safeguards Information'' while the 
latter category is marked ``Safeguards Information--Modified 
Handling.'' The different markings are associated with different 
storage requirements. SGI described in Sec.  73.22 must be stored in a 
locked security storage container, but SGI described in Sec.  73.23 and 
marked as SGI-M has a less stringent storage requirement--the 
information must be stored in a locked file drawer or cabinet.
    A person who possesses both types of SGI--i.e., that described in 
Sec. Sec.  73.22 and 73.23--and who always stores SGI in a locked 
security storage container under Sec.  73.22(c)(2) would be in 
compliance with the regulations because that person would achieve the 
maximum level of protection required by the regulations. But not 
everyone will possess both types of SGI--some will only possess SGI 
falling under Sec.  73.23, in which case a locked security storage 
container would not be required. Thus, when a person with a Sec.  73.22 
program sends SGI to a person with only a Sec.  73.23 program, proper 
document marking would be essential.
    Proper marking is necessary when SGI is communicated so that the 
recipient does not receive a document with markings that would require 
storage in a container that the recipient does not possess. Without the 
appropriate document markings, the sender could cause a violation of 
the regulations.
    This commenter implies that the SGI-M designation means the 
information will be held ``secret,'' which is not the case. Individuals 
with a ``need to know'' the information who are determined to be 
trustworthy and reliable may be granted access to SGI. Access to 
``secret'' National Security Information is beyond the scope of this 
rulemaking and is governed by separate requirements.
    Comment: One commenter stated that if the NRC believes that 
information associated with less than 15 grams of SNF or HLW should be 
protected as SGI, it should be designated as ``SGI-M.'' The commenter 
also proposed that information associated with the transportation of 15 
grams of SNF or HLW should be protected as SGI pursuant to Sec. Sec.  
73.21 and 73.22.
    Response: The Commission did not propose to protect the information 
identified by the commenter as SGI or SGI-M. If in the future the 
Commission establishes physical security requirements for the 
transportation of the materials referred to by the commenter, the 
Commission will determine whether to also require protection of 
security-related information as SGI or SGI-M in accordance with 
Sec. Sec.  73.21(b)(1) and (2).
    Comment: A commenter recommended against the creation of the SGI-M 
category because the category is overly broad, the need for 
restrictions on such material has not been clearly established, and the 
risks associated with the release of such information do not justify 
secrecy. This commenter expressed concerns that holding less-dangerous 
SGI-M information as secret will decrease accountability and eliminate 
the public's ability to be aware of and participate in safety matters 
that concern their communities.
    Response: The Commission disagrees that protection of the SGI 
described in Sec.  73.23 is unnecessary. The information that would be 
protected under Sec.  73.23 describes security measures and physical 
protection information related to radioactive materials that could be 
used in a radiological dispersion device. Securing those materials is 
vital to the public health and safety and the common defense and 
security. Protecting detailed information about how those materials are 
secured is equally vital.
    This rulemaking is not intended to decrease the Commission's 
accountability or unduly burden the public's ability to participate in 
NRC proceedings. Members of the public are always free to submit their 
views on safety and security matters by filing a petition for 
rulemaking under 10 CFR 2.802, by filing a request to institute 
proceedings to modify, suspend, or revoke a license under 10 CFR 2.206, 
and by attending public meetings or writing letters to the NRC. In 
addition, members of the public may comment on rulemakings and 
environmental impact statements, and where appropriate, file a petition 
to intervene and/or request a hearing in an adjudicatory matter.
    Comment: A commenter questioned the appropriateness of a statement 
in the original proposed rule implying that the risk of theft of 
materials covered by Sec.  73.23, particularly special nuclear 
material, could be low.
    Response: Special nuclear material would be addressed by Sec. Sec.  
73.22 and 73.23 and would require different levels of protection based 
on its form and quantity. The Commission believes that a graded 
approach based on risk and associated consequences is appropriate. As a 
result, a higher risk of disclosure or higher consequence due to a 
malevolent act requires commensurate levels of protection. The same is 
true whether the assets are source, byproduct, or special nuclear 
materials.
    Comment: One commenter suggested that the NRC, in its final rule, 
provide greater detail on the criteria for deciding access to SGI-M 
material. In addition, the commenter suggested that, because of the 
lower risk status of SGI-M material, the NRC should allow greater 
access to SGI-M by establishing less rigorous restrictions and easier 
procedures for public access.
    Response: The Commission agrees that SGI-M material presents lesser 
risks if publicly disclosed than SGI material, but the risks are still 
significant. Because of those risks, broad public access is not 
permitted. Only trustworthy and reliable individuals who have a ``need 
to know'' the information may be authorized access to SGI-M.
    The revised proposed rule defines ``background check'' and 
``trustworthiness and reliability'' to clarify the Commission's general 
expectations for granting access to SGI or SGI-M. Specifying discrete 
qualifying or disqualifying factors is not possible because 
trustworthiness and reliability determinations and need-to-know 
determinations must be made on a case-by-case basis after considering 
all relevant information.
    To implement the amendments to section 149 of the AEA contained in 
the Energy Policy Act of 2005, the revised proposed rule would require 
fingerprinting and Federal Bureau of Investigation criminal history 
checks, which would constitute part of the background check used to 
determine trustworthiness and reliability, before access to SGI.
    Comment: One commenter proposed that the NRC modify the preamble to 
define the exact materials and quantities to which the SGI-M 
requirements of Sec.  73.23 would apply.
    Response: The introductory text to Sec.  73.23 has been revised to 
define exactly the facilities, materials, and quantities for which the 
SGI-M requirements of Sec.  73.23 apply. The section would apply to 
panoramic and underwater irradiators, defined in 10 CFR 36.2, that 
possess greater than 370 TBq (10,000 Ci) of byproduct material in the 
form of sealed sources; manufacturers and distributors of items 
containing source, byproduct, or special nuclear material in greater 
than or equal to Category 2 quantities of concern; research and test 
reactors that possess less than a formula quantity of strategic

[[Page 64024]]

special nuclear material; and transportation of greater than or equal 
to Category 1 quantities of concern.
    Comment: One commenter stated that Sec.  73.23 would conflict with 
existing requirements in 49 CFR part 15 with respect to the protection 
of information associated with transporting radioactive materials. The 
commenter suggests that if the rule is adopted as proposed, licensees 
may be contending with two sets of regulations.
    Response: The NRC's regulations are not in conflict with DOT 
regulations. DOT regulations in 49 CFR 172.804 provide that DOT-
required security plans ``that conform to regulations, standards, 
protocols, or guidelines issued by other Federal agencies * * * may be 
used to satisfy the requirements in this subpart, provided such 
security plans address requirements specified in this subpart''. Thus, 
security plans required by the NRC can be developed so that they also 
comply with DOT requirements.
    DOT information protection requirements for transportation security 
plans are less stringent than the SGI and SGI-M requirements 
established by this rule. As a general matter, the Commission does not 
intend that transportation security plans required by the DOT be 
protected under this rule. However, licensees subject to this rule who 
would be required by NRC regulations or orders to implement 
transportation security measures would be required to protect those 
measures and plans as SGI or SGI-M, as appropriate. Licensees that 
incorporate NRC-required security measures and procedures into existing 
DOT-required transportation security plans would be required to protect 
portions of the transportation security plan under this revised 
proposed rule. To avoid that result, licensees may wish to keep 
descriptions of their NRC-required security measures and procedures 
separate from DOT-required security plans.

Section 73.23(a) Information To Be Protected

Section 73.23(a)(1) Physical Protection

    Comment: One commenter objected to Sec.  73.23(a)(1)(i) as too 
broad in its use of the term ``all portions'' with respect to the NRC's 
authority to restrict physical security plans that are labeled as SGI-
M. The commenter suggested that Sec.  73.23(a)(1)(i) creates an 
``unnecessary level of secrecy'' and contends that establishing ``such 
intense secrecy for a brand new and less dangerous category of 
information seems completely unwarranted.'' The commenter recommended 
instead that if portions of the physical security plans can be released 
to the public, the agency should be permitted to disclose those 
portions.
    Response: The Commission agrees that some portions of a licensee's 
physical security plan or procedures may be non-SGI and has deleted the 
phrase ``all portions of'' from revised proposed rule. The Commission 
disagrees that protection of the SGI described in Sec.  73.23 is 
unnecessary. The information protected under Sec.  73.23 describes 
security measures and physical protection programs for radioactive 
materials that could be used in a radiological dispersion device. 
Securing those materials is vital to the public health and safety and 
the common defense and security. Protecting detailed information about 
how those materials are secured is equally vital.
    Comment: One commenter proposed that the NRC clarify the 
identification of emergency power sources in Sec.  73.23(a)(1)(iii) to 
apply only to alarm system power sources.
    Response: The revised proposed rule would protect information in 
alarm system layouts and is intended to protect information that 
identifies emergency power sources for alarm systems. The revised 
proposed rule text has been changed to clarify this point.
    Comment: One commenter suggested that the NRC revise Sec.  
73.23(a)(1)(vii) to agree with the wording in Sec.  73.22(a)(1)(ix).
    Response: The Commission agrees with the comment and the revised 
proposed rule has been revised to add the word ``composite'' to Sec.  
73.23(a)(1)(vii).
    Comment: One commenter proposed the deletion of Sec.  
73.23(a)(1)(viii) as it is redundant with other Sec.  73.23(a)(1) 
subsections.
    Response: The commenter did not identify a specific redundancy or 
point out how the proposed language would cause confusion or other 
harm. Retaining the provision affords protection for SGI that might not 
fit squarely under other categories. Consequently, the Commission has 
not changed the provision in the revised proposed rule.
    Comment: Two commenters proposed replacing the phrase ``safeguards 
or security emergencies'' in Sec.  73.23(a)(1)(ix) with ``security 
contingency events,'' which is used more frequently. Another commenter 
suggested that the words ``Information concerning'' in Sec.  
73.23(a)(1)(ix) were unclear and suggested that the NRC specify what 
information concerning response forces qualifies as SGI-M.
    Response: The Commission has changed the revised rule to make 
consistent use of the phrase ``security contingency events.'' The 
phrase ``information concerning'' in Sec.  73.23(a)(1)(ix) has been 
changed to ``information relating to.'' The original proposed rule 
adequately describes the types of information that would be protected 
by Sec.  73.23(a)(1)(ix) by giving a number of examples of the 
information the Commission seeks to protect, including response force 
size, armament of the response forces, and arrival times. Similar 
information about the operational and tactical capabilities of response 
forces would be protected by Sec.  73.23(a)(1)(ix). The revised 
proposed rule has not been revised to provide further examples.
    Comment: Three commenters provided comments on Sec.  
73.23(a)(1)(x). Two commenters recommended revising the wording at the 
end of the paragraph to read: ``by significantly increasing the 
likelihood of radiological sabotage or theft or diversion of source, 
byproduct, or special nuclear material,'' in order to correspond to the 
phrase used in the definition of ``SGI'' in the proposed Sec.  73.2. 
One commenter suggested that withholding such information from 
disclosure as SGI-M would prevent public knowledge of safety and 
emergency information that would directly impact nearby communities in 
the event of an accident, and doing so under the SGI-M provisions would 
``allow the agency to apply vague and broad secrecy authority to an 
already broad and undefined category since NRC does not detail 
precisely which facilities and materials SGI-M covers.'' Therefore, 
this commenter recommends that the NRC eliminate this provision and not 
allow emergency planning and safety reports to be protected from public 
disclosure under the new SGI-M category.
    Response: The revised proposed rule text has been changed in 
response to the first comment. The wording at the end of Sec.  
73.23(a)(1)(x) now corresponds with the definition of SGI in Sec.  
73.2.
    The Commission disagrees that Sec.  73.23(a)(1)(x) is overly broad, 
or that it would prevent public knowledge of vital safety and emergency 
information. The protection that would be required for engineering and 
safety analyses and emergency planning information under Sec.  
73.23(a)(1)(x) is appropriately limited to information that could 
reasonably be expected to have a significant adverse effect on the 
health and safety of the public or the common defense and

[[Page 64025]]

security by significantly increasing the likelihood of theft, 
diversion, or sabotage of source, byproduct, or special nuclear 
material.
    The Commission recognizes that the public needs information about 
safety and emergency planning and will continue to make much of that 
information publicly available. But a limited amount of safety and 
emergency planning related information, if publicly disclosed, could be 
used to identify security measures for the protection of nuclear 
facilities and materials, thereby significantly increasing the 
likelihood of radiological sabotage or theft and diversion. For 
example, emergency planning information that specifies response times 
for local law enforcement, or identifies the size, tactics, and 
capabilities of first responders to a radiological event could be 
useful to a potential adversary in planning an attack.

Section 73.23(a)(2) Physical Protection in Transit

    Comment: One commenter suggests that, in the final rule, Sec.  
73.23(a)(2)(i) use the term ``transportation security plan'' for 
consistency, rather than ``transportation physical security plan'' as 
the original proposed rule reads. Another commenter suggests that Sec.  
73.23(a)(2)(i) is too broad in that it does not specify what 
information falls into this category. This commenter recommends that at 
least some portion of transportation security plans should be available 
to communities to foster awareness about the safety measures applied to 
nuclear materials shipments passing through their towns. In addition, 
the commenter proposes that Sec.  73.23(a)(2)(i) be reworded to clarify 
that the public will retain access to all information to which it is 
entitled by the AEA.
    Response: The phrase ``transportation physical security plan'' does 
not appear in the revised proposed rule. The revised proposed rule 
would require protection of ``the composite physical security plan for 
transportation'' in Sec.  73.22(a)(2)(i) and ``information regarding 
transportation security measures, including physical security plans and 
procedures'' in Sec.  73.23(a)(2)(i). The revision was made in part 
because not all licensees subject to the rule are explicitly required 
to have a ``transportation physical security plan.''
    The revised proposed rule is intended to protect information 
detailing the physical security measures and procedures used to protect 
source, byproduct, and special nuclear material in transit, whether or 
not those measures and procedures are contained in a document labeled 
``transportation security plan.'' Therefore no definition of 
``transportation security plan'' or its revised formulations is needed.
    The NRC frequently shares general transportation security 
information with communities and other stakeholders. Licensees may be 
able to share general information about their security procedures as 
well, however, the Commission strongly cautions against this practice 
to avoid an inadvertent disclosure of SGI.
    The Commission disagrees that Sec.  73.23(a)(2)(i) needs to be 
reworded to make clear that the public will retain access to all 
information to which it is legally entitled. The comment states a 
truism that need not be incorporated into NRC regulations.
    Comment: One commenter suggested that Sec. Sec.  73.23(a)(2)(ii) 
and (iii) are not clear in what is considered SGI, for example, if the 
regulation pertains to a specific shipment or only to the general 
arrangements for all shipments that may be affected. The commenter 
stated that, if specific to the shipment, it is burdensome in that it 
requires face-to-face meetings when such arrangements are normally made 
over the telephone. In addition, the commenter stated that the phrase 
``limitations of communication during transport'' in Sec.  
73.23(a)(2)(iii) was not sufficiently clear.
    Response: These sections apply to information related to the 
protection of shipments of certain quantities of source material, 
byproduct material, and SNM in greater than or equal to Category 1 
quantities of concern. The information described in Sec.  
73.23(a)(2)(ii) concerns arrangements with and capabilities of local 
police response forces, and locations of safe havens, whether related 
to a specific shipment or arrangements for shipments that may be 
affected. The handling requirements for SGI-M do not mandate ``face-to-
face'' meetings. With respect to telephone conversations, Sec.  
73.23(f)(3) provides that SGI-M must be transmitted electronically only 
by protected telecommunications circuits or encryption approved by the 
NRC except under emergency or extraordinary conditions. To the extent 
that the commenter is referring to arrangements regarding scheduling 
and itinerary information, the revised proposed rule text specifies 
that such information is not considered SGI-M. See 10 CFR 
73.23(a)(2)(i). The phrase ``limitations of communication during 
transport'' in Sec.  73.23(a)(2)(iii) of the original proposed rule 
(now Sec.  73.23(a)(2)(iv)) has been deleted and replaced by the phrase 
``Details of alarm and communication systems, communication procedures, 
and duress codes.''
    Comment: One commenter expressed concerns that Sec.  73.23(a)(2)(v) 
would exempt safety analyses, emergency planning procedures, or other 
information about the protection of transported materials from public 
disclosure as SGI-M. The commenter recommended revising Sec.  
73.23(a)(2)(v) in order to ensure that the public has access to 
emergency procedures and safety analyses information needed to protect 
communities.
    Response: In response to this and other comments, the phrase 
``emergency planning procedures or scenarios'' has been changed to 
``security-related procedures or scenarios''. The Commission recognizes 
that the public needs information about safety and emergency planning 
and will continue to make much of that information publicly available. 
But a limited amount of safety and emergency planning-related 
information, if publicly disclosed, could be used to identify security 
measures for the protection of nuclear facilities and materials, 
thereby significantly increasing the likelihood of sabotage or theft 
and diversion. For example, emergency planning information that 
specifies response times for local law enforcement, or identifies the 
size, tactics, and capabilities of first responders to a radiological 
event could be useful to a potential adversary in planning an attack.
    The Commission disagrees that this revised proposed rule would 
prevent public knowledge of vital safety and emergency information. The 
protection required for the information designated under Sec.  
73.23(a)(1)(x) would be appropriately limited to information that could 
reasonably be expected to have a significant adverse effect on the 
health and safety of the public or the common defense and security by 
significantly increasing the likelihood of theft, diversion, or 
sabotage of source, byproduct, or SNM.

Section 73.23(a)(3) Inspections, Audits, and Evaluations

    Comment: One commenter expressed concerns over the proposed Sec.  
73.23(a)(3) and recommended that the NRC add current regulations that 
allow the public to access SGI-M information about defects and 
weaknesses at nuclear facilities after they have been corrected. The 
commenter suggested that the existing provision is useful and logical 
in maintaining accountability and public confidence, particularly given 
the lower risk associated with material

[[Page 64026]]

in the new SGI-M category. The commenter noted that the NRC proposes to 
eliminate this provision with respect to SGI information and recommends 
that the NRC add the provision to the SGI-M regulations.
    Response: The Commission agrees with this comment and has revised 
the proposed rule in part, accordingly. However, as stated in the 
revised text, the disclosure of such information is not automatic, and 
is subject to an assessment taking into account such factors as the 
results of trend analyses and the impacts of disclosures on other 
licensees having similar physical security systems. The partial 
revision of the proposed rule text is consistent with the policy to 
increase the amount of public information released pursuant to the 
Security Oversight Process.

Section 73.23(h) Decontrolling Information

    Comment: One commenter stated that the decision to decontrol 
information would be a difficult assessment if consideration has to be 
given to using it in combination with non-SGI, and that detailed 
guidance and/or training would need to be given. The rule says that the 
approval to decontrol information can be made by three options: (1) 
Only by the NRC; or (2) the licensee with NRC approval; or (3) in 
consultation with the individual that made the original determination, 
if possible. The commenter stated that having these three options does 
not make sense, as there should be one ultimate authority that states 
whether it is permissible to decontrol the information so that there is 
no ambiguity and all licensees use the same method.
    Response: The Commission agrees that the decision to remove 
information from the SGI category can be difficult. Consideration must 
be given not only to the nature of the information itself, but to 
whether public disclosure of that information would identify other SGI. 
If so, the information should not be decontrolled.
    Persons in possession of SGI who are considering decontrolling the 
information should consult with the NRC, although the revised proposed 
rule would not require it in every case. Information could be 
decontrolled without NRC approval after consulting with the individual 
or organization that originally made the SGI determination, provided 
the information no longer meets the criteria of this rule. Retaining 
this option gives licensees and others a measure of flexibility in 
their SGI-protection procedures.
    SGI generated by the NRC would only be decontrolled with NRC 
approval. This would ensure that NRC orders, guidance, and other 
regulatory documents would not be inconsistently decontrolled.

Part 76: Certification of Gaseous Diffusion Plants

    Comment: One commenter suggested that Sec.  76.113(c) should be 
revised to provide that information on the security of CAT I SSNM 
should be protected under 10 CFR parts 25 and 95 as classified 
information.
    Response: The rule language in Sec. Sec.  73.21 and 73.22 clearly 
indicates that it would only apply to information that is not 
classified as Restricted Data or National Security Information. If the 
specific information is considered to be Restricted Data or National 
Security Information it would be protected as such and the SGI 
provisions would not apply. However, the Commission recognizes that the 
current language in Sec.  76.113(c), which suggests that security 
information related to formula quantities of strategic special nuclear 
material would be protected as SGI, may be perceived as inconsistent 
with the NRC's general practice of treating that information as 
classified Restricted Data or National Security Information. The 
revised proposed rule text has been changed to provide clarity.
    Comment: One commenter recommended that changes to Sec. Sec.  
76.115(d) and 76.117(c) should be deleted from the revised proposed 
rule because documents transmitted to gaseous diffusion plants (GDP) by 
the NRC are protected as classified material and because the classified 
matter protection program at each GDP already meets or exceeds the 
protection requirements for SGI, both current and proposed. Therefore, 
the commenter believes that the current programs at the GDPs provide 
for adequate protection of sensitive information, that application of 
the proposed SGI requirements to the GDPs will cause the expenditure of 
resources with little additional protection of sensitive information, 
and that, therefore, the proposed revision to Sec. Sec.  76.115(d) and 
76.117(c) is not necessary. Two commenters suggest that Sec. Sec.  
76.115 and 76.117 should refer to Sec. Sec.  73.21 and 73.23, not Sec.  
73.22.
    Response: The NRC Staff believes that the proper category for 
security-related information at the GDPs is SGI. While the GDPs are 
protecting their security plans and other related documents as 
classified material, other persons that might obtain the information 
would have no obligation to protect the security-related information as 
SGI or as classified material. The NRC does not believe that protection 
of the security-related information as proprietary under Sec.  2.390 
provides adequate protection, particularly if a third party were to 
somehow obtain the information. The GDPs may continue to protect the 
security-related information covered by the rule as classified 
material, however, the information should be properly marked as SGI. 
This is consistent with the treatment of similar information for part 
70 licensees. No changes to the revised proposed rule text are 
necessary.
    Comment: One commenter proposed that Sec.  76.113 be revised to 
specify whether NRC certificate holders should protect DOE's 
Unclassified Controlled Nuclear Information (UCNI) information to a 
level equivalent to SGI or SGI-M. The commenter supports protection of 
UCNI to an SGI-equivalent level.
    Response: Section 76.133 has been changed in the revised proposed 
rule to make it clear that the information would be protected in 
accordance with DOE requirements.
Part 150 Exemptions and Continued Regulatory Authority in Agreement 
States and in Offshore Waters Under Section 274
    Comment: One commenter suggested that a provision be added to Sec.  
150.15 to indicate that persons in Agreement States remain under the 
jurisdiction of the NRC's regulations for control of SGI, as the 
current rule by its terms only provides that persons in Agreement 
States remain under the jurisdiction of NRC regulations for control of 
SGI-M, not SGI. The commenter recommends that the NRC should retain 
full authority over all SGI regulations and therefore recommends that 
Sec.  150.15(a)(9) be revised in the final rule to include Sec.  73.22.
    Response: There are no Agreement State licensees that would possess 
SGI, only SGI-M. However, the NRC has added Sec.  73.22 to the revised 
proposed rule to cover the possibility that an Agreement State licensee 
in the future might need to possess SGI.
Other or Related Issues
    Comment: One commenter suggested that although the original 
proposed rule states that the purpose of the rule is to ``[e]xpand the 
types of security information covered by the definition of SGI in Sec.  
73.21 to include access authorization for background screening'' there 
is no associated requirement that can be found in either Sec. Sec.  
73.22 or 73.23 for background screening information to be protected as 
SGI. Another commenter noted that it would fully support changes in 
regulations on SGI that would preserve access authorizations for 
appropriate persons when needed, as

[[Page 64027]]

well as allow union leadership access to applicable safeguarded 
information.
    Response: The commenter is correct about the lack of an explicit 
requirement in either Sec. Sec.  73.22 or 73.23 for ``access 
authorization for background screening.'' Detailed background screening 
requirements for determining trustworthiness and reliability are set 
forth in a licensee's or an applicant's composite physical security 
plan, which is included in Sec. Sec.  73.22(a)(1)(i) and 73.23(a)(1)(i) 
as a type of SGI.
    As to the second comment, authorization for access to SGI always 
considers need because one criterion for granting such access is an 
established ``need-to-know''. The revised proposed rule preserves the 
application of the ``need to know'' criterion as a requirement in 
Sec. Sec.  73.22(b) and 73.23(b). The issue of access to SGI by agents 
representing employees of NRC licensees in employment-related 
grievances has previously been addressed in response to an earlier 
comment on that subject.
Comments on Information Collection Requirements
    Comment: The Office of Management and Budget (OMB) received two 
comment letters on the proposed information collection requirements 
associated with Sec. Sec.  73.21, 73.22, and 73.23. An industry 
commenter stated that the estimate of the total number of hours needed 
annually to complete the requirement or request (5,926 or an average of 
nine hours per recordkeeper) is incorrect. The commenter estimates that 
initially thousands of hours will be required of each recordkeeper to 
review and mark the additional SGI or SGI-M documents as required in 
Sec. Sec.  73.22(a)(1)(xii) and 73.23(a)(1)(x). In addition, the 
ongoing requirement of the original proposed rule would also exceed 
nine hours per recordkeeper.
    Response: The average number of hours that would be needed annually 
to complete the information collection requirement in the original 
proposed rule of 9 hours per respondent was an average that covered a 
wide range of entities from nuclear power reactors to irradiators. The 
calculation of the 9 hours accounted for the range of those affected by 
the information collection requirement by assuming larger entities 
would have a larger number of documents to mark than smaller entities. 
The average burden of 9 hours seems low because there are many more 
smaller entities in the calculation than larger entities. The burden 
for power reactors, including implementation and ongoing burden, was 
approximately 26 hours annually for each power reactor site. It is 
expected that the information collection burdens for the revised 
proposed rule will change to reflect the requirements in the revised 
rule.
    Comment: The commenter also disagreed with the following statement 
in the Abstract portion of the Paperwork Reduction Act Statement in the 
Federal Register notice for the original proposed rule: ``The proposed 
amendments would be consistent with Commission practices reflected in 
previously issued orders and advisories.'' According to the commenter, 
this statement is incorrect because the NRC has not previously directed 
that all of the information specified in proposed 10 CFR 73.22 be 
protected as SGI.
    Response: The original proposed amendments reflected Commission 
practices set forth in previously issued orders and advisories, results 
of the Commission's comprehensive review of security policies and 
requirements, and comments received in the original proposed 
rulemaking. Any increased information collection burdens associated 
with the revised proposed amendments will be accounted for in the 
calculation of the burden estimate in a new OMB clearance package.
    Comment: A commenter suggested that eliminating portion marking 
requirements for documents containing SGI, and allowing the entire 
document to be marked as SGI, was a way to minimize the information 
collection burden.
    Response: Under Sec. Sec.  73.22(d)(3) and 73.23(d)(3), portion 
marking would only be required for transmittal documents for 
correspondence with the NRC. For example, cover letters that transmit a 
security plan or license application are required to be portion marked, 
but the attached plan or application is not. The burden associated with 
portion marking these documents is small, and would be outweighed by 
the benefit of being able to make correspondence with the NRC publicly 
available.
    Comment: A commenter provided two burden estimates for nuclear 
power reactor implementation of the original proposed rule. The first 
estimate assumed that the commenter's ``comments or similar 
clarifications'' would not be accounted for in the final rule. The 
second estimate assumed the commenter's ``comments or similar 
clarifications'' would be accounted for in the final rule. The 
commenter concluded that the estimates showed a ``great and expansive 
potential for misinterpretation'' of the original proposed rule.
    Response: The NRC has revised the original proposed rule language 
so that potential for misinterpretation would be minimized. The NRC has 
revised the number of recordkeepers in the OMB clearance package 
associated with power reactors from 104 to 64. The decrease in 
recordkeepers reflects multiple reactors at one site sharing SGI 
documents. The NRC has not included the cost of a dedicated copy 
machine and dedicated computers for reproducing and processing SGI 
documents. These costs are not requirements of the revised proposed 
rule and therefore will not be included in the OMB clearance package.
    Comment: One commenter requested that an accurate regulatory 
analysis and backfit analysis be completed and made available for 
public comment before the rule is finalized.
    Response: The regulatory analysis for the original proposed rule 
was available for public comment. It has been revised where appropriate 
in response to those comments and is being made available for comment 
with this revised proposed rule. A backfit analysis is not required 
because the requirements of this revised proposed rule that are not in 
the current 10 CFR 73.21 are being proposed as a matter of adequate 
protection.
    Comment: A commenter requested that the NRC develop a rulemaking 
associated with the transportation of certain types and quantities of 
radioactive materials with the DOT.
    Response: A coordinated rulemaking with the DOT is not possible 
given the expedited rulemaking required for the protection of the 
common defense and security.
    Comment: A public meeting was requested by industry to ensure that 
the NRC staff understands certain concerns, such as the impacts on 
licensees of implementation of the rule, due to the large number of 
documents and the breadth of information held by a greater number of 
licensees.
    Response: The expedited rulemaking schedule did not allow the NRC 
time to hold a public meeting. However, NRC staff had several telephone 
conversations with the commenter in order to understand the commenter's 
concerns regarding the OMB clearance package and the regulatory 
analysis.
Comments on Regulatory Analysis
    Comment: One comment stated that the full-compliance baseline 
assumption in the main analysis of the regulatory analysis is incorrect 
because it is assumed that all licensee costs were incurred under 
Commission orders that were never imposed and that this does not 
account for licensee costs incurred under the rule. In addition, under 
the ``Pre-Order Analysis'' in the regulatory analysis, the period of 
compliance is

[[Page 64028]]

assumed to be ten years. This time period is too short given the 
perpetual nature of the rule.
    Response: The NRC concurs with the comment that the full-compliance 
baseline assumption of the main analysis does not capture the costs 
associated with the rule that have not already been incurred under the 
current regulation at 10 CFR 73.21 or under Commission orders. 
Accordingly, the regulatory analysis has been revised to capture these 
costs under the main analysis. The NRC also concurs that the assumed 
ten year period of compliance is not long enough for some licensees, 
such as nuclear power reactors. Therefore, the NRC has calculated the 
annual costs for nuclear power reactors over a 33-year period. This is 
the approximate length of plant life remaining for power reactors 
assuming 100 percent license renewal.
    Comment: A commenter stated that the assertion in the regulatory 
analysis that the original proposed rule would increase public 
confidence in the NRC and its licensees is not supported by data, nor 
is there a basis for such a subjective judgment.
    Response: In response to the comment that there is no basis for the 
qualitative benefit of increased public confidence resulting from the 
revised proposed rule, the NRC has revised the regulatory analysis to 
exclude either a qualitative value or impact related to public 
confidence in the NRC or its licensees.
    Comment: Another comment on the regulatory analysis is that the 
backfit analysis in Section XIV only considers the ``main'' analysis 
and therefore does not consider the perpetual and substantial costs to 
licensees associated with the rule.
    Response: A backfit analysis is not required because the 
requirements of this rule that are not in the current 10 CFR 73.21 are 
being proposed as a matter of adequate protection.
    Comment: A commenter suggested that the rule be delayed until an 
accurate regulatory analysis and backfit analysis are completed.
    Response: The NRC believes that the revised regulatory analysis is 
an accurate analysis of the values and impacts associated with the 
revised proposed rule. The original regulatory analysis was available 
for public comment and has been revised where appropriate in response 
to comments. As stated above, a backfit analysis is not required.
    Comment: The regulatory analysis should consider the actual 
substantial cost of implementing the rule and should also quantify the 
need for SGI-M under Sec.  73.23.
    Response: The regulatory analysis accounts for the costs of 
implementing the revised proposed rule. Assigning a quantitative value 
to the need for SGI-M under Sec.  73.23 is not possible. However, as 
discussed in the regulatory analysis, there are substantial qualitative 
benefits associated with protecting SGI-M under Sec.  73.23.

C. Section-by-Section Analysis

 Table 1.--Changes to the Original Proposed Rule Text and Explanation of
                                 Changes
 [Additional details regarding the changes may be found in the responses
                              to comments.]
------------------------------------------------------------------------
                                Changes from the
       10 CFR section           original proposed      Explanation of
                                    rule text              changes
------------------------------------------------------------------------
2.4.........................  A new definition of   A definition of
                               Safeguards            Safeguards
                               Information is        Information has
                               added to Sec.         been added to this
                               2.4: Safeguards       section in the
                               Information means     revised proposed
                               information not       rule because the
                               classified as         term is used in
                               National Security     this part. This
                               Information or        definition also
                               Restricted Data       appears in Sec.
                               which specifically    73.2.
                               identifies a
                               licensee's or
                               applicant's
                               detailed control
                               and accounting
                               procedures for the
                               physical protection
                               of special nuclear
                               material in
                               quantities
                               determined by the
                               Commission through
                               order or regulation
                               to be significant
                               to the public
                               health and safety
                               or the common
                               defense and
                               security; detailed
                               security measures
                               (including security
                               plans, procedures,
                               and equipment) for
                               the physical
                               protection of
                               source, byproduct,
                               or special nuclear
                               material in
                               quantities
                               determined by the
                               Commission through
                               order or regulation
                               to be significant
                               to the public
                               health and safety
                               or the common
                               defense and
                               security; security
                               measures for the
                               physical protection
                               and location of
                               certain plant
                               equipment vital to
                               the safety of
                               production or
                               utilization
                               facilities; and any
                               other information
                               within the scope of
                               Section 147 of the
                               Atomic Energy Act
                               of 1954, as
                               amended, the
                               unauthorized
                               disclosure of
                               which, as
                               determined by the
                               Commission through
                               order or
                               regulation, could
                               reasonably be
                               expected to have a
                               significant adverse
                               effect on the
                               health and safety
                               of the public or
                               the common defense
                               and security by
                               significantly
                               increasing the
                               likelihood of
                               sabotage or theft
                               or diversion of
                               source, by product,
                               or special nuclear
                               material.
2.336(f)(1).................  The following         This paragraph is
                               paragraph is added    added to the
                               to Sec.   2.336,      revised proposed
                               ``General             rule in response to
                               discovery.'' ``In     comments regarding
                               the event of a        discovery of
                               dispute over          Safeguards
                               disclosure of         Information in NRC
                               documents and         adjudicatory
                               records including     proceedings.
                               Safeguards            Section 2.336(f)(1)
                               Information           applies only in a
                               referred to in        dispute over
                               Sections 147 and      disclosure of
                               181 of the Atomic     Safeguards
                               Energy Act, as        Information. In the
                               amended, the          absence of a
                               presiding officer     dispute over
                               may issue an order    disclosure,
                               requiring             participants in an
                               disclosure if--       adjudicatory
                               ``[the requirements   proceeding may
                               in Sec.               exchange
                               2.336(f)(1)(i)        information,
                               through (iv) are      including
                               met].                 Safeguards
                                                     Information.
                                                     However, such
                                                     disclosures would
                                                     be subject to a
                                                     protective order
                                                     issued by the
                                                     presiding officer
                                                     of the proceeding
                                                     to protect against
                                                     the unauthorized
                                                     disclosure of the
                                                     information.

[[Page 64029]]


2.336(f)(1)(i)..............  The following         This paragraph makes
                               paragraph is added:   clear that: (1)
                               ``The presiding       ``Need to know,''
                               officer finds that    as defined in Sec.
                               the individual         73.2, applies in
                               seeking access to     NRC adjudicatory
                               Safeguards            proceedings, and
                               Information to        (2) the presiding
                               participate in an     officer of the
                               NRC adjudication      proceeding makes
                               has the requisite     the ``need to
                               ``need to know'',     know''
                               as defined in Sec.    determination for
                                73.2;''              access to SGI in a
                                                     dispute over the
                                                     ``need to know''
                                                     determination. In
                                                     other words, access
                                                     to Safeguards
                                                     Information always
                                                     requires a ``need
                                                     to know.'' In the
                                                     specific instance
                                                     of a dispute over
                                                     ``need to know'' in
                                                     an NRC adjudicatory
                                                     proceeding, the
                                                     presiding officer
                                                     makes the ``need to
                                                     know''
                                                     determination as
                                                     defined in Sec.
                                                     73.2.
2.336(f)(1)(ii).............  The following         This paragraph
                               paragraph is added:   requires that
                               ``The individual      individuals seeking
                               has undergone an      access to
                               FBI criminal          Safeguards
                               history check,        Information in
                               unless exempt under   order to
                               Sec.  Sec.            participate in an
                               73.22(b)(3) or        NRC adjudicatory
                               73.23(b)(3), as       proceeding must
                               applicable, by        undergo an FBI
                               submitting            criminal history
                               fingerprints to the   check, including
                               NRC Office of         fingerprinting,
                               Administration,       unless they are
                               Security Processing   exempt from this
                               Unit, Mail Stop T-    requirement under
                               6E46, U.S. Nuclear    Sec.  Sec.
                               Regulatory            73.22(b)(3) or
                               Commission,           73.23(b)(3). Those
                               Washington DC 20555-  provisions cross-
                               0001, and otherwise   reference Sec.
                               following the         73.59, which lists
                               procedures in Sec.    categories of
                                73.57(d) for         individuals who are
                               submitting and        exempt from the FBI
                               processing            criminal history
                               fingerprints.         and background
                               However, before an    check requirements
                               adverse               for access to
                               determination by      Safeguards
                               the NRC Office of     Information by
                               Administration on     virtue of their
                               an individual's       occupational
                               criminal history      status. This
                               check, the            paragraph also
                               individual shall be   extends the
                               afforded the          protections
                               protections of Sec.   provided by Sec.
                                 73.57;''            73.57 to
                                                     participants in NRC
                                                     adjudicatory
                                                     proceedings before
                                                     an adverse
                                                     determination is
                                                     made by the NRC
                                                     Office of
                                                     Administration on
                                                     their criminal
                                                     history check.
2.336(f)(1)(iii)............  The following         This paragraph
                               paragraph is added:   requires that
                               ``The NRC Office of   individuals seeking
                               Administration has    access to
                               found, based upon a   Safeguards
                               background check,     Information in
                               that the individual   order to
                               is trustworthy and    participate in an
                               reliable, unless      NRC adjudicatory
                               exempt from the       proceeding must
                               background check      undergo a
                               requirement           background check
                               pursuant to Sec.      for trustworthiness
                               Sec.   73.22(b)(3)    and reliability
                               or 73.23(b)(3), as    unless exempt from
                               applicable.           that requirement
                               However, before       under Sec.  Sec.
                               adverse               73.22(b)(3) or
                               determination by      73.23(b)(3), which
                               the NRC Office of     cross-reference
                               Administration on     Sec.   73.59. This
                               an individual's       paragraph extends
                               background check      the protections
                               for trustworthiness   provided by Sec.
                               and reliability,      73.57 to
                               the individual        participants in NRC
                               shall be afforded     adjudicatory
                               the protections       proceedings before
                               provided by Sec.      an adverse
                               73.57.''              determination by
                                                     the NRC Office of
                                                     Administration on
                                                     their background
                                                     checks for
                                                     trustworthiness and
                                                     reliability.
2.336(f)(1)(iv).............  Participants,         This paragraph
                               potential             establishes
                               witnesses, and        detailed procedures
                               attorneys for whom    for participants,
                               the NRC Office of     potential
                               Administration has    witnesses, and
                               made a final          attorneys to appeal
                               adverse               a final adverse
                               determination on      determination by
                               trustworthiness and   the NRC Office of
                               reliability may       Administration on
                               request the           an individual's
                               presiding officer     trustworthiness and
                               to review the         reliability
                               adverse               determination for
                               determination. The    access to SGI.
                               request may also     Participants,
                               seek to have the      potential
                               Chairman of the       witnesses, and
                               Atomic Safety and     attorneys may
                               Licensing Board       request that the
                               Panel designate an    Chairman of the
                               officer other than    Atomic Safety and
                               the presiding         Licensing Board
                               officer of the        Panel designate an
                               proceeding to         officer other than
                               review the adverse    the proceeding
                               determination. For    officer of the
                               purposes of review,   proceeding to
                               the adverse           review the NRC
                               determination must    Office of
                               be in writing and     Administration's
                               set forth the         adverse
                               grounds for the       determination.
                               determination. The   In addition, this
                               request for review    paragraph contains
                               shall be served on    the following
                               the NRC staff and     requirements:
                               may include           Documentation by
                               additional            the Office of
                               information for       Administration of
                               review by the         an adverse
                               presiding officer.    determination and
                               The request must be   the time periods
                               filed within 15       for filing and
                               days after receipt    service of the
                               of the adverse        request for review,
                               determination by      and issuance by the
                               the individual        presiding officer
                               against whom the      of a decision on
                               adverse               the request for
                               determination has     review. The
                               been made. Within     standard for
                               10 days of receipt    reversal by the
                               of the request for    presiding officer
                               review and any        of the Office of
                               additional            Administration's
                               information, the      adverse
                               NRC staff will file   determination is a
                               a response            finding that the
                               indicating whether    determination
                               the request and       constitutes an
                               additional            abuse of
                               information has       discretion.
                               caused the NRC
                               Office of
                               Administration to
                               reverse its adverse
                               determination. The
                               presiding officer
                               may reverse the
                               Office of
                               Administration's
                               final adverse
                               determination only
                               if the officer
                               finds, based on all
                               the information
                               submitted, that the
                               adverse
                               determination
                               constitutes an
                               abuse of
                               discretion. The
                               presiding officer's
                               decision must be
                               rendered within 15
                               days after receipt
                               of the staff filing
                               indicating that the
                               request for review
                               and additional
                               information has not
                               changed the NRC
                               Office of
                               Administration's
                               adverse
                               determination.
2.336(f)(2).................  The following         This provision
                               paragraph is added:   authorizes the
                               ``The presiding       presiding officer
                               officer may include   to prescribe terms
                               in an order any       and conditions
                               protective terms      necessary and
                               and conditions        appropriate to
                               (including            ensure that
                               affidavits of non-    disclosure of
                               disclosure) as may    Safeguards
                               be necessary and      Information is
                               appropriate to        limited to
                               limit the             authorized
                               disclosure to         individuals.
                               parties in the
                               proceeding, to
                               interested States
                               and other
                               governmental
                               entities
                               participating under
                               Sec.   2.315(c),
                               and to their
                               qualified witnesses
                               and counsel.''

[[Page 64030]]


2.336(f)(3).................  The following         This paragraph
                               paragraph is added:   extends
                               ``When Safeguards     requirements for
                               Information           the protection of
                               protected from        Safeguards
                               unauthorized          information in Sec.
                               disclosure under       Sec.   73.21,
                               Section 147 of the    73.22, and 73.23,
                               Atomic Energy Act,    as applicable, to
                               as amended, is        anyone in
                               received and          possession or
                               possessed by a        receipt of
                               participant other     Safeguards
                               than the NRC staff,   Information.
                               it must also be
                               protected according
                               to the requirements
                               of Sec.   73.21 and
                               the requirements of
                               Sec.   73.22 or
                               Sec.   73.23 of
                               this chapter, as
                               applicable.''
2.336(f)(4).................  The following         This paragraph
                               paragraph is added:   authorizes the
                               ``The presiding       presiding officer
                               officer may also      of the proceeding
                               prescribe             to prescribe
                               additional            measures in
                               procedures to         addition to those
                               effectively           described in Sec.
                               safeguard and         Sec.   73.21,
                               prevent disclosure    73.22, and 73.23,
                               of Safeguards         as applicable, to
                               Information to        prevent the
                               unauthorized          disclosure of
                               persons with          Safeguards
                               minimum impairment    Information to
                               of the procedural     unauthorized
                               rights which would    individuals.
                               be available if
                               Safeguards
                               Information were
                               not involved.''
2.336(f)(5).................  The following         This paragraph
                               paragraph is added:   authorizes civil
                               ``In addition to      penalties for
                               any other sanction    disclosure of
                               that may be imposed   Safeguards
                               by the presiding      Information in
                               officer for           violation of a
                               violation of an       presiding officer's
                               order issued          protective order or
                               pursuant to this      orders.
                               paragraph,
                               violation of an
                               order pertaining to
                               the disclosure of
                               Safeguards
                               Information
                               protected from
                               disclosure under
                               Section 147 of the
                               Atomic Energy Act,
                               as amended, may be
                               subject to a civil
                               penalty imposed
                               under Sec.
                               2.205.''
2.336(f)(6).................  The following         This paragraph
                               paragraph is added:   authorizes criminal
                               ``For the purpose     penalties for
                               of imposing the       disclosure of
                               criminal penalties    Safeguard
                               contained in          Information in
                               Section 223 of the    violation of a
                               Atomic Energy Act,    presiding officer's
                               as amended, any       protective order or
                               order issued          orders.
                               pursuant to this
                               paragraph with
                               respect to
                               Safeguards
                               Information is
                               considered to be an
                               order issued under
                               Section 161b of the
                               Atomic Energy
                               Act.''
2.705(c)(2).................  The following         This paragraph is
                               paragraph is added    added to the
                               to Sec.   2.705,      revised proposed
                               ``Discovery--additi   rule in response to
                               onal methods.''       comments regarding
                              ``In the case of       discovery of SGI in
                               documents and         NRC adjudicatory
                               records including     proceedings. The
                               Safeguards            paragraph
                               Information           authorizes the
                               referred to in        presiding officer
                               Sections 147 and      to issue an order
                               181 of the Atomic     requiring
                               Energy Act, as        disclosure of
                               amended, the          certain documents
                               presiding officer     and records,
                               may issue an order    including
                               requiring             Safeguards
                               disclosure if--''.    Information,
                                                     provided that the
                                                     requirements noted
                                                     and discussed below
                                                     are met.
2.705(c)(2)(i)..............  The following         This provision makes
                               paragraph is added:   clear that a ``need
                               ``The presiding       to know,'' as
                               officer finds that    defined in Sec.
                               the individual        73.2, applies to an
                               seeking access to     individual seeking
                               Safeguards            access to SGI in
                               Information in        order to
                               order to              participate in an
                               participate in an     NRC proceeding. The
                               NRC proceeding has    presiding officer
                               the requisite ``      of the proceeding
                               need to know,'' as    makes the ``need to
                               defined in Sec.       know''
                               73.2'';               determination for
                                                     access to SGI in a
                                                     dispute over the
                                                     ``need to know''
                                                     determination. In
                                                     other words, access
                                                     to Safeguards
                                                     Information always
                                                     require a ``need to
                                                     know.'' In the
                                                     specific instance
                                                     of a dispute over
                                                     the ``need to
                                                     know'' in an NRC
                                                     adjudicatory
                                                     proceeding, the
                                                     presiding officer
                                                     makes the ``need to
                                                     know''
                                                     determination as
                                                     defined in Sec.
                                                     73.2.
2.705(c)(2)(ii).............  The following         This paragraph
                               paragraph is added:   requires that
                               ``The individual      individuals seeking
                               has undergone an      access to
                               FBI criminal          Safeguards
                               history check,        Information in
                               unless exempt under   order to
                               Sec.  Sec.            participate in an
                               73.22(b)(3) or        NRC adjudicatory
                               73.23(b)(3), as       proceeding must
                               applicable, by        under go an FBI
                               submitting            criminal history
                               fingerprints to the   check, including
                               NRC Office of         fingerprinting,
                               Administration,       unless they are
                               Security Processing   exempt from this
                               Unit, Mail Stop T-    requirement under
                               6E46, U.S. Nuclear    Sec.  Sec.
                               Regulatory            73.22(b)(3) or
                               Commission,           73.23(b)(3). Those
                               Washington, DC        provisions cross-
                               20555-0001, and       reference Sec.
                               otherwise follow      73.59, which lists
                               the procedures in     categories of
                               Sec.   73.57(d) for   individuals who are
                               submitting and        exempt from the FBI
                               processing            criminal history
                               fingerprints.         and background
                               However, before an    check requirements
                               adverse               for access to
                               determination by      Safeguards
                               the NRC Office of     Information by
                               Administration on     virtue of their
                               an individual         occupational
                               criminal history      status. This
                               check, the            paragraph also
                               individual shall be   extends the
                               afforded the          protections
                               protections of        provided by Sec.
                               73.57; and''          73.57 to
                                                     participants in NRC
                                                     adjudicatory
                                                     proceedings before
                                                     an adverse
                                                     determination is
                                                     made by the NRC
                                                     Office of
                                                     Administration on
                                                     their FBI criminal
                                                     history check.

[[Page 64031]]


2.705(c)(2)(iii)............  The following         This paragraph
                               paragraph is added:   provides that
                               ``NRC Office of       individuals seeking
                               Administration has    access to
                               found, based upon a   Safeguards
                               background check,     Information in
                               that the individual   order to
                               is trustworthy and    participate in an
                               reliable, unless      NRC adjudicatory
                               exempt Sec.  Sec.     proceeding must
                               73.22(b)(3) or        under go a
                               73.23(b)(3)           background check
                               However, before an    for trustworthiness
                               adverse               and reliability
                               determination by      unless exempt from
                               the NRC Office of     this requirement
                               Administration on     under Sec.  Sec.
                               an individual's       73.22(b)(3) or
                               background check      73.23(b)(3). Those
                               for trustworthiness   provisions cross-
                               and reliability,      reference Sec.
                               the individual        73.59, which lists
                               shall be afforded     categories of
                               the protections       individuals who are
                               provided by Sec.      exempt from the FBI
                               73.57.''              criminal history
                                                     check and
                                                     background check
                                                     requirements for
                                                     access to SGI by
                                                     virtue of their
                                                     occupational
                                                     status. This
                                                     paragraph also
                                                     extends the
                                                     protections
                                                     provided by Sec.
                                                     73.57 before an
                                                     adverse
                                                     determination by
                                                     the NRC Office of
                                                     Administration on a
                                                     background check
                                                     for trustworthiness
                                                     and reliability.
2.705(c)(2)(iv).............  The following         This paragraph
                               paragraph is added:   establishes
                               ``An individual       detailed procedures
                               seeking to            for an individual
                               participate in an     seeking access to
                               NRC adjudicatory      SGI in order to
                               proceeding for whom   participate in an
                               the NRC Office of     NRC adjudicatory
                               Administration has    proceeding to
                               made a final          appeal a final
                               adverse               adverse
                               determination on      determination by
                               trustworthiness and   the NRC Office of
                               reliability may       Administration on
                               request the           trustworthiness and
                               presiding officer     reliability for
                               to review the         access to SGI. The
                               adverse               paragraph contains
                               determination. For    the following
                               purposes of review,   requirements:
                               the adverse           Documentation by
                               determination must    the Office of
                               be in writing and     Administration of
                               set forth the         an adverse
                               grounds for the       determination and
                               determination. The    the time periods
                               request for review    for filing and
                               shall be served on    service of the
                               the NRC staff and     request for review,
                               may include           responding to the
                               additional            request, and for
                               information for       issuance of a
                               review by the         decision by the
                               presiding officer.    presiding officer
                               The request must be   on a request for
                               filed within 15       review. The
                               days after receipt    presiding officer
                               of the adverse        may reverse the
                               determination by      Office of
                               the individual        Administration's
                               against whom the      final adverse
                               adverse               determination only
                               determination has     if the officer
                               been made. Within     finds, based on all
                               10 days of receipt    the information
                               the request for       submitted, that the
                               review and any        adverse
                               additional            determination
                               information, the      constitutes an
                               NRC staff will file   abuse of
                               a response            discretion.
                               indicating whether
                               the request and
                               additional
                               information has
                               caused the NRC
                               Office of
                               Administration to
                               reverse its adverse
                               determination. The
                               presiding officer
                               may reverse the
                               Office of
                               Administration's
                               final adverse
                               determination only
                               if the officer
                               finds, based on all
                               the information
                               submitted, that the
                               adverse
                               determination
                               constitutes an
                               abuse of
                               discretion. The
                               presiding officer's
                               decision must be
                               rendered within 15
                               days after receipt
                               of the staff filing
                               indicating that the
                               request for review
                               and additional
                               information has not
                               changed the NRC
                               Office of
                               Administration's
                               adverse
                               determination.''
2.705(c)(3).................  The following         This provision
                               paragraph is added:   authorizes the
                               ``The presiding       presiding officer
                               officer may include   to prescribe terms
                               in an order any       and conditions
                               protective terms      necessary and
                               and conditions        appropriate to
                               (including            ensure that
                               affidavits of non-    disclosure of
                               disclosure) as may    Safeguards
                               be necessary and      Information is
                               appropriate to        limited to
                               limit the             authorized
                               disclosure to         individuals.
                               parties in the
                               proceeding, to
                               interested States
                               and other
                               governmental
                               entities
                               participating under
                               Sec.   2.315(c),
                               and to their
                               qualified witnesses
                               and counsel.''
2.705(c)(4).................  The following         This paragraph
                               paragraph is added:   extends
                               ``When Safeguards     requirements for
                               Information           protection of
                               protected from        Safeguards
                               unauthorized          Information in Sec.
                               disclosure under        Sec.  73.21,
                               Section 147 of the    73.22, and 73.23,
                               Atomic Energy Act,    as applicable, to
                               as amended, is        anyone in
                               received and          possession of
                               possessed by a        Safeguards
                               party other than      Information.
                               the NRC staff, it
                               must also be
                               protected according
                               to the requirements
                               of Sec.   73.21 and
                               the requirements of
                               Sec.   73.22 or
                               Sec.   73.23 of
                               this chapter, as
                               applicable.''
2.705(c)(5).................  The following         This paragraph
                               paragraph is added:   authorizes the
                               ``The presiding       presiding officer
                               officer may also      of the proceeding
                               prescribe             to prescribe
                               additional            measures in
                               procedures to         addition to those
                               effectively           described in Sec.
                               safeguard and         Sec.   73.21,
                               prevent disclosure    73.22, and 73.23,
                               of Safeguards         as applicable, to
                               Information to        prevent disclosure
                               unauthorized          of Safeguards
                               persons with          Information to
                               minimum impairment    unauthorized
                               of the procedural     individuals.
                               rights which would
                               be available if
                               Safeguards
                               Information were
                               not involved.''
2.705(c)(6).................  The following         This paragraph
                               paragraph is added:   authorizes civil
                               ``In addition to      penalties for
                               any other sanction    disclosure of
                               that may be imposed   Safeguards
                               by the presiding      Information in
                               officer for           violation of a
                               violation of an       presiding officer's
                               order issued          protective order or
                               pursuant to this      orders.
                               paragraph,
                               violation of an
                               order pertaining to
                               the disclosure of
                               Safeguards
                               Information
                               protected from
                               disclosure under
                               Section 147 of the
                               Atomic Energy Act,
                               as amended, may be
                               subject to a civil
                               penalty imposed
                               under Sec.
                               2.205.''

[[Page 64032]]


2.705(c)(7).................  The following         This paragraph
                               paragraph is added:   authorizes criminal
                               ``For the purpose     penalties for
                               of imposing the       disclosure of
                               criminal penalties    Safeguards
                               contained in          Information in
                               Section 223 of the    violation of a
                               Atomic Energy Act,    presiding officer's
                               as amended, any       protective order or
                               order issued          orders.
                               pursuant to this
                               paragraph with
                               respect to
                               Safeguards
                               Information is
                               considered to be an
                               order issue under
                               section 161b of the
                               Atomic Energy
                               Act.''
2.709(f)....................  This subsection of    This paragraph has
                               Sec.   2.709,         been revised in
                               ``Discovery against   response to
                               the NRC staff'' has   comments regarding
                               been revised and      discovery of SGI in
                               subdivided as noted   NRC adjudicator
                               below.                proceedings. It has
                                                     been subdivided in
                                                     the revised
                                                     proposed rule for
                                                     clarity. This
                                                     paragraph continues
                                                     to apply to
                                                     discovery documents
                                                     and records
                                                     including
                                                     Safeguards
                                                     Information,
                                                     against the NRC
                                                     staff.
2.709(f)(1).................  This paragraph        This paragraph sets
                               reads: ``In the       forth the
                               case of requested     circumstances in
                               documents and         which Sec.
                               records, (including   2.709(f) applies.
                               Safeguards            As in the original
                               Information           proposed rule, Sec.
                               referred to in          2.709(f)
                               Section 147 and 181   establishes
                               of the Atomic         procedures for the
                               Energy Act, as        discovery against
                               amended) exempt       the NRC staff of
                               from disclosure       documents and
                               under Sec.   2.390,   records, including
                               the presiding         Safeguards
                               officer may issue     Information, which
                               an order disclosure   are exempt from
                               to the Executive      disclosure under
                               Director of           Sec.   2.390,
                               Operations or         ``Public
                               delegate of the       inspections,
                               Executive Director    exemptions,
                               for Operations, to    requests for
                               produce the           withholding.''
                               documents or
                               records (or any
                               other order issued
                               ordering
                               productions of the
                               document or
                               records) if--''
2.709(f)(1)(i)..............  The following is      This paragraph makes
                               added: ``The          clear that: (1)
                               presiding officer     ``Need to know,''
                               finds that the        as defined in Sec.
                               individual seeking     73.2, applies in
                               access to             NRC adjudicatory
                               Safeguards            proceedings, and
                               Information to        (2) the presiding
                               participate in an     officer of the
                               NRC adjudication      proceeding makes
                               has the requisite     the ``need to
                               ``need to know'',     know''
                               as defined in Sec.    determination for
                                73.2;'' The phrase   access to SGI in a
                               ``but whose           dispute over the
                               disclosure is found   ``need to know''
                               by the presiding      determination. In
                               officer to be         other words access
                               necessary to a        to Safeguards
                               proper decision in    Information always
                               the proceeding''      requires a ``need
                               has been deleted      to know.'' In the
                               from Sec.             specific instance
                               2.709(f).             of a dispute over
                                                     ``need to know'' in
                                                     an NRC adjudicatory
                                                     proceeding, the
                                                     presiding officer
                                                     makes the ``need to
                                                     know''
                                                     determination as
                                                     defined in Sec.
                                                     73.2.
2.709(f)(1)(ii).............  The following         This paragraph makes
                               paragraph is added:   clear that
                               ``The individual      individuals seeking
                               has undergone an      access to
                               FBI criminal          Safeguards
                               history check,        Information in
                               unless exempt Sec.    order to
                               Sec.   73.22(b)(3)    participate in an
                               or Sec.               NRC adjudicatory
                               73.23(b)(3), by       proceeding must
                               submitting            undergo an FBI
                               fingerprints to the   criminal history
                               NRC Office of         check, including
                               Administration,       fingerprinting,
                               Security Processing   unless they are
                               Unit, Mail Stop T-    exempt from this
                               6E46, U.S. Nuclear    requirement under
                               Regulatory            Sec.  Sec.
                               Commission,           73.22(b)(3) or
                               Washington DC 20555-  73.23(b)(3), which
                               0001, and otherwise   cross-reference
                               following the         Sec.   73.59.
                               procedures in Sec.    Section 73.59 lists
                                73.57(d) for         categories of
                               submitting and        individuals who are
                               processing            exempt from the FBI
                               fingerprints.         criminal history
                               However, before an    and background
                               adverse               check requirements
                               determination by      for access to
                               the NRC Office of     Safeguards
                               Administration on     Information by
                               an individual's       virtue of their
                               criminal history      occupational
                               check the             status. This
                               individual shall be   paragraph extends
                               afforded the          the protections
                               protections           provided by Sec.
                               provided by Sec.      73.57 to
                               73.57; and''          participants in NRC
                                                     adjudications
                                                     before an adverse
                                                     determination by
                                                     the NRC Office of
                                                     Administration on
                                                     their FBI criminal
                                                     history check.
2.709(f)(1)(iii)............  The following         This paragraph makes
                               paragraph is added:   clear that
                               ``The NRC Office of   individuals seeking
                               Administration        access to
                               finds, based upon a   Safeguards
                               background check,     Information in
                               that the individual   order to
                               is trustworthy and    participate in an
                               reliable, unless      NRC adjudicatory
                               exempt under Sec.     proceeding must
                               Sec.   73.22(b)(3)    undergo a
                               or 73.23(b)(3), as    background check
                               applicable.           for trustworthiness
                               However, before an    and reliability
                               adverse               unless exempt from
                               determination by      this requirement
                               the NRC Office of     under Sec.  Sec.
                               Administration on     73.22(b)(3) or
                               an individual's       73.23(b)(3), as
                               background check      applicable. These
                               for trustworthiness   provisions cross-
                               and reliability,      reference Sec.
                               the individual        73.59, which lists
                               shall be afforded     categories of
                               the protections       individuals who are
                               provided by Sec.      exempt from the FBI
                               73.57.''              criminal history
                                                     check and
                                                     background check
                                                     requirements for
                                                     access to SGI by
                                                     virtue of their
                                                     occupational
                                                     status. This
                                                     paragraph extends
                                                     the protections
                                                     provided by Sec.
                                                     73.57 to
                                                     participants in NRC
                                                     adjudications
                                                     before an adverse
                                                     determination by
                                                     the NRC Office of
                                                     Administration on
                                                     their background
                                                     checks.

[[Page 64033]]


2.709(f)(1)(iv).............  The following         This paragraph
                               paragraph is added:   establishes
                               Participants,         detailed procedures
                               potential             for participants,
                               witnesses, and        potential
                               attorneys for whom    witnesses, and
                               the NRC Office of     attorneys to appeal
                               Administration has    a final adverse
                               made a final          determination by
                               adverse               the NRC Office of
                               determination on      Administration on
                               trustworthiness and   an individual's
                               reliability may       trustworthiness and
                               request the           reliability
                               presiding officer     determination for
                               to review the         access to SGI.
                               adverse              Participants,
                               determination. The    potential
                               request may also      witnesses, and
                               seek to have the      attorneys may
                               Chairman of the       request that the
                               Atomic Safety and     Chairman of the
                               Licensing Board       Atomic Safety and
                               Panel designate an    Licensing Board
                               officer other than    Panel designate an
                               the presiding         officer other than
                               officer of the        the proceeding
                               proceeding to         officer of the
                               review the adverse    proceeding to
                               determination. For    review the NRC
                               purposes of review,   Office of
                               the adverse           Administration's
                               determination must    adverse
                               be in writing and     determination.
                               set forth the        In addition, this
                               grounds for the       paragraph contains
                               determination. The    the following
                               request for review    requirements:
                               shall be served on    Documentation by
                               the NRC staff and     the Office of
                               may include           Administration of
                               additional            an adverse
                               information for       determination and
                               review by the         the time periods
                               presiding officer.    for filing and
                               The request must be   service of the
                               filed within 15       request for review,
                               days after receipt    and issuance by the
                               of the adverse        presiding officer
                               determination by      of a decision on
                               the individual        the request for
                               against whom the      review. The
                               adverse               standard for
                               determination has     reversal by the
                               been made. Within     presiding officer
                               10 days of receipt    of the NRC Office
                               of the request for    of Administration's
                               review and any        final adverse
                               additional            determination is a
                               information, the      finding that the
                               NRC staff will file   determination
                               a response            constitutes an
                               indicating whether    abuse of
                               the request and       discretion.
                               additional
                               information has
                               caused the NRC
                               Office of
                               Administration to
                               reverse its adverse
                               determination. The
                               presiding officer
                               may reverse the
                               Office of
                               Administration's
                               final adverse
                               determination only
                               if the officer
                               finds, based on all
                               the information
                               submitted, that the
                               adverse
                               determination
                               constitutes an
                               abuse of
                               discretion. The
                               presiding officer's
                               decision must be
                               rendered within 15
                               days after receipt
                               of the staff filing
                               indicating that the
                               request for review
                               and additional
                               information has not
                               changed the NRC
                               Office of
                               Administration's
                               adverse
                               determination.
2.709(f)(2).................  The following         This provision
                               paragraph is added:   authorizes the
                               ``The presiding       presiding officer
                               officer may include   to prescribe terms
                               in an order any       and conditions
                               protective terms      necessary and
                               and conditions        appropriate to
                               (including            ensure that
                               affidavits of non-    disclosure of
                               disclosure) as may    Safeguards
                               be necessary and      Information is
                               appropriate to        limited to
                               limit the             authorized
                               disclosure to         individuals.
                               parties in a
                               proceeding, to
                               interested States
                               and other
                               governmental
                               entities
                               participating under
                               Sec.   2.315(c),
                               and to their
                               qualified witnesses
                               and counsel.''
2.709(f)(3).................  The following         This paragraph
                               paragraph is added:   extends
                               ``When Safeguards     requirements for
                               Information           protection of
                               protection from       Safeguards
                               unauthorized          Information in Sec.
                               disclosure under       Sec.   73.21,
                               Section 147 of the    73.22, and 73.23,
                               Atomic Energy Act,    as applicable, to
                               as amended, is        anyone in
                               received and          possession of
                               possessed by a        Safeguards
                               participant other     Information.
                               than the NRC staff,
                               it must also be
                               protected according
                               to the requirements
                               of Sec.   73.21 and
                               the requirements of
                               Sec.   73.22 or
                               Sec.   73.23 of
                               this chapter, as
                               applicable.''
2.709(f)(4).................  The following         This paragraph
                               paragraph is added:   authorizes the
                               ``The presiding       presiding officer
                               officer may also      of the proceeding
                               prescribe             to prescribe
                               additional            measures in
                               procedures to         addition to those
                               effectively           described in Sec.
                               safeguard and         Sec.   73.21,
                               prevent disclosure    73.22, and 73.23,
                               of Safeguards         as applicable to
                               Information to        prevent disclosure
                               unauthorized          of Safeguards
                               persons with          Information to
                               minimum impairment    unauthorized
                               of the procedural     individuals.
                               rights which would
                               be available if
                               Safeguards
                               Information were
                               not involved.''
2.709(f)(5).................  The following         This paragraph
                               paragraph is added:   authorizes civil
                               ``In addition to      penalties for
                               any other sanction    disclosure of
                               that may be imposed   Safeguards
                               by the presiding      Information in
                               officer for           violation of a
                               violation of an       presiding officer's
                               order issued          protective order or
                               pursuant to this      orders.
                               paragraph,
                               violation of an
                               order pertaining to
                               the disclosure of
                               Safeguards
                               Information
                               protected from
                               disclosure under
                               Section 147 of the
                               Atomic Energy Act,
                               as amended, may be
                               subject to a civil
                               penalty imposed
                               under Sec.
                               2.205.''
2.709(f)(6).................  The following         This paragraph
                               paragraph is added:   authorizes criminal
                               ``For the purpose     penalties for
                               of imposing the       disclosure of
                               criminal penalties    Safeguards
                               contained in          Information in
                               Section 223 of the    violation of a
                               Atomic Energy Act,    presiding officer's
                               as amended, any       protective order or
                               order issued          orders.
                               pursuant to this
                               paragraph with
                               respect to
                               Safeguards
                               Information is
                               considered to be an
                               order under Section
                               161b of the Atomic
                               Energy Act.''
2.1010(b)(6)................  This paragraph of     This paragraph is
                               Sec.   2.1010,        revised in response
                               ``Pre-License         to comments
                               application           regarding discovery
                               presiding officer''   of SGI in NRC
                               has been              adjudicatory
                               reorganized and       proceedings. It has
                               subdivided. The       been subdivided for
                               paragraph begins as   clarity. As in Sec.
                               follows: ``Whether      2.1010(b)(6) of
                               the material should   the original
                               be disclosed under    proposed rule, this
                               a protective order    paragraph
                               containing such       authorizes the Pre-
                               protective terms      License Application
                               and conditions        Presiding Officer
                               (including            to resolve disputes
                               affidavits of         over disclosure of
                               nondisclosure) as     Safeguards
                               may be necessary      Information.
                               and appropriate to
                               limit the
                               disclosure to
                               potential parties,
                               interested
                               government
                               participants, and
                               parties in a
                               proceeding, or to
                               their qualified
                               witnesses and
                               counsel.''

[[Page 64034]]


2.1010(b)(6)(i).............  The following         This paragraph
                               paragraph is added:   authorizes the Pre-
                               ``The Pre-License     License Application
                               Application           Presiding Officer
                               Presiding Office      to issue an order
                               may issue an order    requiring
                               requiring             disclosure of
                               disclosure of         Safeguards
                               Safeguards            Information if the
                               Information if--''    requirements in the
                                                     subsequent
                                                     provisions are met.
2.1010(b)(6)(i)(A)..........  The following         This paragraph makes
                               paragraph is added:   clear that (1)
                               ``The Pre-License     ``need to know'',
                               Application           as defined in Sec.
                               Presiding Officer      73.2, applies in
                               finds that the        the context of NRC
                               individual seeking    adjudicatory
                               access to             proceedings, and
                               Safeguards            (2) the presiding
                               Information in        officer of the
                               order to              proceeding makes
                               participate in an     the ``need to
                               NRC adjudication      know''
                               has the requisite     determination for
                               ``need to know,''     access to SGI in a
                               as defined in Sec.    dispute over the
                                73.2'';              ``need to know''
                                                     determination. In
                                                     other words, access
                                                     to Safeguards
                                                     Information always
                                                     requires a ``need
                                                     to know.'' In a
                                                     dispute over ``need
                                                     to know'' in an NRC
                                                     adjudicatory
                                                     proceeding, the
                                                     presiding officer
                                                     makes the ``need to
                                                     know''
                                                     determination as
                                                     that term is
                                                     defined in Sec.
                                                     73.2.
2.1010(b)(6)(i)(B)..........  The following         This paragraph
                               paragraph is added:   requires that
                               ``The individual      individuals seeking
                               has undergone an      access to
                               FBI criminal          Safeguards
                               history check,        Information in
                               unless exempt under   order to
                               Sec.  Sec.            participate in an
                               73.22(b)(3) or        NRC adjudicatory
                               73.23(b)(3), as       proceeding must
                               applicable by         undergo an FBI
                               submitting            criminal history
                               fingerprints to the   check, including
                               NRC Office of         fingerprinting,
                               Administration,       unless they are
                               Security Processing   exempt from this
                               Unit, Mail Stop T-    requirement under
                               6E46, U.S. Nuclear    Sec.  Sec.
                               Regulatory            73.22(b) or
                               Commission,           73.23(b). Those
                               Washington D.C.       provisions cite
                               20555-0001, and       Sec.   73.59, which
                               otherwise following   lists categories of
                               the procedures in     individuals who are
                               Sec.   73.57(d) for   exempt from the FBI
                               submitting and        criminal history
                               processing            check and
                               fingerprints.         background
                               However, before an    requirements for
                               adverse               access to
                               determination by      Safeguards
                               the NRC Office of     Information by
                               Administration on     virtue of their
                               an individual's       occupational
                               criminal history      status. This
                               check, the            paragraph also
                               individual shall be   extends the
                               afforded the          protections
                               protections of Sec.   provided by Sec.
                                 73.57;''            73.57 to
                                                     participants in NRC
                                                     adjudications
                                                     before an adverse
                                                     determination by
                                                     the NRC Office of
                                                     Administration on
                                                     their FBI criminal
                                                     history checks.
2.1010(b)(6)(i)(C)..........  The following         This paragraph makes
                               paragraph is added:   clear that
                               ``A finding by the    individuals seeking
                               NRC Office of         access to
                               Administration,       Safeguards
                               based upon a          Information in
                               background check,     order to
                               that the individual   participate in an
                               is trustworthy and    NRC adjudicatory
                               reliable, unless      proceeding must
                               exempt under Sec.     undergo a
                               Sec.   73.22(b)(3)    background check
                               or 73.23(b)(3), as    for trustworthiness
                               applicable.           and reliability
                               However, before an    unless exempt from
                               adverse               this requirement
                               determination on an   under Sec.  Sec.
                               individual's          73.22(b)(3)(b)(3)
                               background check      or 73.23(b)(3).
                               for trustworthiness   Those provisions
                               and reliability,      contain a cross-
                               the individual        reference to Sec.
                               shall be afforded     73.59, which lists
                               the protections       categories of
                               provided by Sec.      individuals who are
                               73.57.''              exempt from the FBI
                                                     criminal history
                                                     check and
                                                     background check
                                                     requirements for
                                                     access to
                                                     Safeguards
                                                     Information by
                                                     virtue of their
                                                     occupational
                                                     status. This
                                                     paragraph extends
                                                     the protections
                                                     provided by Sec.
                                                     73.57 to
                                                     participants in NRC
                                                     adjudications
                                                     before an adverse
                                                     determination by
                                                     the NRC Office of
                                                     Administration on
                                                     their background
                                                     checks for
                                                     trustworthiness and
                                                     reliability.
2.1010(b)(6)(i)(D)..........  Participants,         This paragraph
                               potential             establishes
                               witnesses, and        detailed procedures
                               attorneys for whom    for participants,
                               the NRC Office of     potential
                               Administration has    witnesses, and
                               made a final          attorneys to appeal
                               adverse               a final adverse
                               determination on      determination by
                               trustworthiness and   the NRC Office of
                               reliability may       Administration on
                               request the           an individual's
                               presiding officer     trustworthiness and
                               to review the         reliability
                               adverse               determination for
                               determination. The    access to SGI.
                               request may also      Participants,
                               seek to have the      potential
                               Chairman of the       witnesses, and
                               Atomic Safety and     attorneys may
                               Licensing Board       request that the
                               Panel designate an    Chairman of the
                               officer other than    Atomic Safety and
                               the presiding         Licensing Board
                               officer of the        Panel designate an
                               proceeding to         officer other than
                               review the adverse    the proceeding
                               determination. For    officer of the
                               purposes of review,   proceeding to
                               the adverse           review the NRC
                               determination must    Office of
                               be in writing and     Administration's
                               set forth the         adverse
                               grounds for the       determination. In
                               determination. The    addition, this
                               request for review    paragraph contains
                               shall be served on    the following
                               the NRC staff and     requirements:
                               may include           documentation by
                               additional            the Office of
                               information for       Administration of
                               review by the         an adverse
                               presiding officer.    determination and
                               The request must be   the time periods
                               filed within 15       for filing and
                               days after receipt    service of the
                               of the adverse        request for review,
                               determination by      responding to the
                               the individual        request, and for
                               against whom the      issuance of a
                               adverse               decision by the
                               determination has     presiding officer.
                               been made. Within     The standard for
                               10 days of receipt    reversal by the
                               of the request for    presiding officer
                               review and any        of the NRC Office
                               additional            of Administration's
                               information, the      final adverse
                               NRC staff will file   determination made
                               a response            by the NRC Office
                               indicating whether    of Administration.
                               the request and
                               additional
                               information has
                               caused the NRC
                               Office of
                               Administration to
                               reverse its adverse
                               determination. The
                               presiding officer
                               may reverse the
                               Office of
                               Administration's
                               final adverse
                               determination only
                               if the officer
                               finds, based on all
                               the information
                               submitted, that the
                               adverse
                               determination
                               constitutes an
                               abuse of
                               discretion. The
                               presiding officer's
                               decision must be
                               rendered within 15
                               days after receipt
                               of the staff filing
                               indicating that the
                               request for review
                               and additional
                               information has not
                               changed the NRC
                               Office of
                               Administration's
                               adverse
                               determination.

[[Page 64035]]


2.1010(b)(6)(ii)............  The following         This provision
                               provision is added:   authorizes the Pre-
                               ``The Pre-License     License Application
                               Application           Presiding Officer
                               Presiding Officer     to prescribe terms
                               may include in an     and conditions
                               order any             necessary to insure
                               protective terms      that disclosure of
                               and conditions        Safeguards
                               (including            Information is
                               affidavits of non-    limited to
                               disclosure) as may    authorized
                               be necessary and      individuals.
                               appropriate to
                               limit the
                               disclosure to
                               parties in the
                               proceeding, to
                               interested States
                               and other
                               governmental
                               entities
                               participating under
                               Sec.   2.315(c) and
                               to their qualified
                               witnesses and
                               counsel.''
2.1010(b)(6)(iii)...........  The following         This paragraph
                               paragraph is added:   extends
                               ``When Safeguards     requirements for
                               Information           protection of
                               protected from        Safeguards
                               unauthorized          Information in Sec.
                               disclosure under       Sec.   73.21,
                               Section 147 of the    73.22, and 73.23,
                               Atomic Energy Act     as applicable, to
                               of 1954, as           anyone in
                               amended, is           possession of
                               received and          Safeguards
                               possessed by a        Information.
                               party other than
                               the NRC staff, it
                               must also be
                               protected according
                               to the requirement
                               of Sec.   73.21 and
                               the requirements of
                               Sec.   73.22 or
                               Sec.   73.23 of
                               this chapter, as
                               applicable.''
2.1010(b)(6)(iv)............  The following         This paragraph
                               paragraph is added:   authorizes the Pre-
                               ``The Pre-License     License Application
                               Application           Presiding Officer
                               Presiding Officer     to prescribe
                               may also prescribe    measures in
                               additional            addition to those
                               procedures as will    described in Sec.
                               effectively           Sec.   73.21,
                               safeguard and         73.22, and 73.23 as
                               prevent disclosure    applicable, to
                               of Safeguards         prevent disclosure
                               Information to        of Safeguards
                               unauthorized          Information to
                               persons with          unauthorized
                               minimum impairment    individuals.
                               of the procedural
                               rights which would
                               be available if
                               Safeguards
                               Information were
                               not involved.''
2.1010(b)(6)(v).............  The following         This paragraph
                               paragraph is added:   authorizes civil
                               ``In addition to      penalties for
                               any other sanction    disclosure of
                               that may be imposed   Safeguards
                               by the Pre-License    Information in
                               Application           violation of a
                               Presiding Officer     protective order or
                               for violation of an   orders.
                               order issued
                               pursuant to this
                               paragraph,
                               violation of an
                               order pertaining to
                               the disclosure of
                               Safeguards
                               Information
                               protected from
                               disclosure under
                               Section 147 of the
                               Atomic Energy Act
                               of 1954, as
                               amended, may be
                               subject to a civil
                               penalty imposed
                               under Sec.
                               2.205.''
2.1010(b)(6)(vi)............  The following         This paragraph
                               paragraph is added:   authorizes criminal
                               ``For the purpose     penalties for
                               of imposing the       disclosure of
                               criminal penalties    Safeguards
                               contained in          Information in
                               Section 223 of the    violation of a
                               Atomic Energy Act     protective order or
                               of 1954, as           orders.
                               amended, any order
                               issued pursuant to
                               this paragraph with
                               respect to
                               Safeguards
                               Information is
                               considered to be an
                               order under Section
                               161b of the Atomic
                               Energy Act of 1954,
                               as amended.''
30.32(j)....................  The following         The deletions are
                               phrases are           made to simplify
                               deleted: ``in         the original
                               quantities            proposed rule text
                               determined by the     and make clear that
                               Commission through    applicants must
                               order or regulation   protect all SGI and
                               to be significant     SGI-M, not just
                               to the public         that contained in
                               health and safety     physical security
                               or the common         plans, security
                               defense and           procedures for
                               security who          emergencies, or
                               prepares a physical   guard qualification
                               security plan,        and training
                               security procedures   procedures. The
                               for emergencies, or   addition to the
                               guard qualification   text makes clear
                               and training          that not all
                               procedures,'' and     applicants for a
                               ``the plans,          part 30 license
                               procedures, and       would be subject to
                               other related.''      physical security
                               The phrase            or information
                               ``subject to the      security
                               requirements of       requirements.
                               part 73 of this
                               chapter'' is added.
30.34(i)....................  The following phrase  This change conforms
                               is deleted:           this section with
                               ``physical security   the requirements of
                               plans, security       Sec.   30.32(j).
                               procedures for
                               emergencies, guard
                               qualification and
                               training
                               procedures, and
                               other related.''
                               The word ``are'' is
                               changed to ``is.''
40.31(m)....................  A new first sentence  This change
                               is added: ``Each      clarifies that
                               applicant for a       applicants for
                               license for the       licenses for the
                               possession of         production of
                               source material at    uranium
                               a facility for the    hexafluoride would
                               production of         be required to
                               uranium               protect security
                               hexafluoride shall    information as SGI
                               protect Safeguards    in accordance with
                               Information against   Sec.  Sec.   73.21
                               unauthorized          and 73.22. Other
                               disclosure in         source material
                               accordance with the   licensees must
                               requirements in       protect SGI and SGI-
                               Sec.  Sec.   73.21    M in accordance
                               and 73.22 of this     with Sec.  Sec.
                               chapter, as           73.21, 73.22, and
                               applicable.'' A new   73.23, as
                               second sentence is    applicable.
                               added: ``Each
                               applicant for a
                               license for source
                               material subject to
                               the requirements of
                               part 73 of this
                               chapter shall
                               protect
                               unauthorized
                               disclosure in
                               accordance with the
                               requirements in
                               Sec.   73.21 and
                               the requirements in
                               Sec.   73.22 or
                               Sec.   73.23 of
                               this chapter, as
                               applicable.''
40.41(h)....................  The phrase            The change corrects
                               ``physical security   a verb tense and
                               plans, security       also simplifies the
                               procedures for        text to make clear
                               emergencies, guard    that applicants
                               qualification and     would be required
                               training              to protect all SGI
                               procedures, and       and SGI-M not just
                               other related'' is    that contained in
                               removed. The word     physical security
                               ``are'' is changed    plans, security
                               to ``is.''            procedures for
                                                     emergencies, or
                                                     guard qualification
                                                     and training
                                                     procedures.
50.34(e)....................  The section is        This change is made
                               revised to read       to simplify the
                               ``Each applicant      revised proposed
                               for a license to      rule text and make
                               operate a             clear that
                               production or         applicants would be
                               utilization           required to protect
                               facility shall        all SGI and SGI-M,
                               protect Safeguards    not just that
                               Information against   contained in
                               unauthorized          physical security
                               disclosure in         plans, security
                               accordance with the   procedures for
                               requirements in       emergencies, or
                               Sec.   73.21 and      guard qualification
                               the requirements in   and training
                               Sec.   73.22 or       procedures.
                               Sec.   73.23 of
                               this chapter, as
                               applicable.''

[[Page 64036]]


50.54(v)....................  The following phrase  This change is to
                               is deleted:           conform with the
                               ``Physical            change in Sec.
                               security,             50.34(e).
                               safeguards
                               contingency and
                               guard qualification
                               and training plans
                               and other
                               related.'' The word
                               ``are'' is changed
                               to ``is.''
52.17(d)....................  The addition of this  This change is made
                               section requires      in concert with the
                               applicants for        change to Sec.
                               early site permits    Sec.   52.47 and
                               under this part to    52.79 to require
                               protect Safeguards    applicants for
                               Information against   standard design
                               unauthorized          certifications and
                               disclosure in         combined licenses
                               accordance with the   to protect SGI from
                               requirements in       unauthorized
                               Sec.  Sec.   73.21    disclosure.
                               and 73.22 of this
                               chapter, as
                               applicable.
60.21(d)....................  The word ``as'' is    This change is made
                               deleted. The phrase   to simplify the
                               ``the detailed        revised proposed
                               security measures     rule text and make
                               for physical          clear that
                               protection of high-   applicants would be
                               level radioactive     required to protect
                               waste, including      all SGI and SGI-M,
                               the design for        not just that
                               physical              contained in
                               protection, the       physical security,
                               safeguards            safeguards
                               contingency plan,     contingency, or
                               the security          guard qualification
                               organization          and training plans.
                               personnel training    The change also
                               and qualification     reflects that
                               plan, and other       applicants under
                               related security      Part 60 would be
                               information'' is      required to protect
                               replaced with ``and   classified
                               shall protect         information.
                               classified
                               information in
                               accordance with the
                               requirements of
                               parts 25 and 95 of
                               this chapter, as
                               applicable.''
60.42(d)....................  The phrase ``the      This change conforms
                               detailed security     this section to the
                               measures for          requirements of
                               physical protection   Sec.   60.21(d).
                               of high-level
                               radioactive waste,
                               including the
                               design for physical
                               protection, the
                               safeguards
                               contingency plan,
                               the security
                               organization
                               personnel training
                               and qualification
                               plan, and other
                               related security
                               information'' is
                               replaced with
                               ``Safeguards
                               Information.'' A
                               new sentence is
                               added: ``The
                               licensee shall
                               ensure that
                               classified
                               information is
                               protected in
                               accordance with the
                               requirements of
                               parts 25 and 95 of
                               this chapter, as
                               applicable.''
63.21(d)....................  A cross-reference to  This change is made
                               Sec.   73.23 is       in concert with the
                               added. The word       change to part 60
                               ``as'' is deleted.    to reflect
                               The phrase ``the      protection of the
                               detailed security     same type of
                               measures for          information for
                               physical protection   part 60 and part 63
                               of high-level         applicants.
                               radioactive waste,
                               including the
                               design for physical
                               protection, the
                               safeguards
                               contingency plan,
                               and the security
                               organization
                               personnel training
                               and qualification
                               plan, and other
                               related Safeguards
                               Information'' is
                               replaced with ``as
                               applicable, and
                               shall protect
                               classified
                               information in
                               accordance with the
                               requirements of
                               parts 25 and 95 of
                               this chapter, as
                               applicable.''
63.42(e)....................  A cross-reference to  This change conforms
                               Sec.   73.23 is       this section to the
                               added. The phrase     requirements of
                               ``the detailed        Sec.   63.21(d).
                               security measures
                               for physical
                               protection of high-
                               level radioactive
                               waste, including
                               the design for
                               physical
                               protection, the
                               safeguards
                               contingency plan,
                               and security
                               organization
                               personnel training
                               and qualification
                               plan, and other
                               related'' is
                               removed. The phrase
                               ``and shall protect
                               classified
                               information in
                               accordance with the
                               requirements of
                               parts 25 and 95 of
                               this chapter, as
                               applicable'' is
                               added.
70.22(l)....................  The section is        This change is made
                               revised to read       to simplify the
                               ``Each applicant      rule text and make
                               for a license shall   clear that all SGI
                               protect Safeguards    and SGI-M would
                               Information against   have to be
                               unauthorized          protected, not just
                               disclosure in         that contained in
                               accordance with the   physical security,
                               requirements in       safeguards
                               Sec.   73.21 and      contingency, or
                               the requirements of   guard qualification
                               Sec.   73.22 or       and training plans.
                               Sec.   73.23 of       The change also
                               this chapter, as      reflects that
                               applicable, and       applicants under
                               shall protect         part 70 would be
                               classified            required to protect
                               information in        classified
                               accordance with the   information.
                               requirements of
                               parts 25 and 95 of
                               this chapter, as
                               applicable.''
70.22(o)....................  This paragraph is     This paragraph is
                               deleted.              eliminated as it is
                                                     no longer necessary
                                                     in light of the
                                                     change to Sec.
                                                     70.22(l).
 Sec.   70.32(j)............  The phrases ``a       The deletions are
                               formula quantity of   made to simplify
                               strategic'' and       the revised
                               ``physical            proposed rule text
                               security,             and make clear that
                               safeguards            all SGI and SGI-M
                               contingency, and      would have to be
                               guard qualification   protected, not just
                               and training plans    SGI or SGI-M
                               and other related''   contained in
                               are deleted. The      physical security,
                               word ``are'' is       safeguards
                               changed to ``is.''    contingency, or
                               The phrase ``and      guard qualification
                               shall protect         and training plans.
                               classified            There is also a
                               information in        change to correct
                               accordance with the   verb tense. The
                               requirements of       deletions are made
                               parts 25 and 95 of    to simplify the
                               this chapter, as      revised proposed
                               applicable'' is       rule text and make
                               added.                clear that all SGI
                                                     and SGI-M would
                                                     have to be
                                                     protected, not just
                                                     SGI or SGI-M
                                                     contained in
                                                     physical security,
                                                     safeguards
                                                     contingency, or
                                                     guard qualification
                                                     and training plans.
70.32(l)....................  The paragraph is      This paragraph is
                               deleted.              eliminated as it is
                                                     no longer necessary
                                                     in light of the
                                                     change to Sec.
                                                     70.32(j).
71.11.......................  The phrase ``spent    This change corrects
                               fuel'' is changed     a grammatical error
                               to ``irradiated       and makes the
                               reactor fuel.'' The   terminology
                               word ``a'' is added   consistent with
                               before ``critical     that used in 10 CFR
                               mass.''               part 73.

[[Page 64037]]


72.212(b)(5)(v).............  The phrase            This change
                               ``receives,           recognizes that
                               transfers, and        generally licensed
                               possesses power       independent spent
                               reactor spent fuel,   fuel storage
                               power reactor-        installations are
                               related Greater       not authorized to
                               than Class C (GTCC)   transfer SNF
                               waste, and other''    pursuant to Sec.
                               is changed to         72.120, nor are
                               ``receives and        such facilities
                               possesses power       authorized to
                               reactor spent fuel    possess Greater
                               and other.''          than Class C waste.
73.2........................  Definitions of the    The term
                               new terms             ``background
                               ``background          check'' replaces
                               check'' and           the term
                               ``quantities of       ``comprehensive
                               concern'' are         background check''
                               added. The revised    to more clearly
                               proposed rule         distinguish the
                               states;               background check
                               ``Background check    requirements for
                               includes, at a        access to SGI from
                               minimum, a criminal   other regulations
                               history check,        requiring a
                               verification of       ``background
                               identify,             investigation'' for
                               employment history,   other purposes (10
                               education, and        CFR 73.56,
                               personal              ``Personnel access
                               references.           authorization
                               Individuals engaged   requirements for
                               in activities         nuclear power
                               subject to            plants). In
                               regulation by the     additional criminal
                               Commission,           history check,
                               applicants for        including
                               licenses to engage    fingerprinting, is
                               in Commission-        included as part of
                               regulated             the background
                               activities, and       check because the
                               individuals who       background check
                               have notified the     establishes the
                               Commission in         overall
                               writing of an         trustworthiness and
                               intent to file an     reliability of an
                               application for       individual for
                               licensing,            access to SGI. The
                               certification,        response to
                               permitting, or        comments on the
                               approval of a         definition of
                               product or activity   ``background
                               subject to            check'' contains
                               regulation by the     more details on
                               Commission are        this definition.
                               required under Sec.
                                 73.57 to conduct
                               criminal history
                               checks before
                               granting access to
                               Safeguards
                               Information. A
                               background check
                               must be sufficient
                               to support the
                               trustworthiness and
                               reliability
                               determination so
                               that the person
                               performing the
                               check and the
                               Commission have
                               assurance that
                               granting
                               individuals access
                               to Safeguards
                               Information does
                               not constitute an
                               unreasonable risk
                               to the public
                               health and safety
                               or the common
                               defense and
                               security.''
                              The definition of     The term
                               ``quantities of       ``quantities of
                               concern'' reads: ``   concern'' is being
                               `Quantities of        added to the
                               Concern' means the    revised proposed
                               quantities of the     rule because the
                               radionuclides         term now appears in
                               meeting or            new ``Appendix I to
                               exceeding the         part 73, Category 1
                               threshold limits      and Category 2
                               set forth in Table    Radioactive
                               I-1 of Appendix I     Materials, Table I-
                               of this part.''       1--Quantities of
                                                     Concern Threshold
                                                     Limits.'' As
                                                     defined, the term
                                                     would mean the
                                                     quantities of the
                                                     radionuclides
                                                     meeting or
                                                     exceeding the
                                                     threshold limits
                                                     set forth in the
                                                     table.
                              The revised proposed  The definition of
                               rule would amend      the term ``need to
                               definition of         know'' is amended
                               ``need to know'' to   to make clear that
                               read: `` `Need to     the term applies to
                               know' means a         licensees,
                               determination by a    applicants,
                               person having         certificate
                               responsibility for    holders, and
                               protecting            participants in
                               Safeguards            adjudications.
                               Information that a
                               proposed
                               recipient's access
                               to Safeguards
                               Information is
                               necessary in the
                               performance of
                               official,
                               contractual,
                               licensee,
                               applicant, or
                               certificate holder
                               employment.''
                              In an adjudication,   The definition of
                               ``need to know''      ``need to know''
                               means a               has two parts to
                               determination by      add specificity to
                               the originator of     the definition. The
                               the information       first part defines
                               that (a) the          ``need to know''
                               information is        determinations
                               necessary to enable   outside of
                               the proposed          adjudications. The
                               recipient to          second part defines
                               proffer and/or        ``need to know''
                               adjudicate a          determinations in
                               specific contention   the context of
                               in that proceeding,   adjudications.
                               and (b) the
                               proposed recipient
                               of the specific
                               Safeguards
                               Information
                               possesses
                               demonstrable
                               knowledge, skill,
                               training, or
                               education to
                               effectively utilize
                               the specific
                               Safeguards
                               Information in the
                               proceeding. Where
                               the information is
                               in the possession
                               of the originator
                               and the NRC staff
                               (dual possession),
                               whether in its
                               original form or
                               incorporated into
                               another document by
                               the recipient, the
                               NRC staff makes the
                               determination. In
                               the event of a
                               dispute regarding
                               ``need to know''
                               determination, the
                               presiding officer
                               of the proceeding
                               makes the
                               determination.
73.2 Cont...................  The definition of     The definition of
                               ``Safeguards          ``SGI'' is changed
                               Information'' is      in order to provide
                               amended to add the    clarification that
                               phrases               SGI is information
                               ``licensee's or       that identifies a
                               applicant's,''        ``licensee's or
                               ``the physical        applicant's''
                               protection of,''      detailed control
                               and ``within the      and accounting
                               scope of Section      procedures for the
                               147 of the Atomic     physical protection
                               Energy Act of 1954,   of special nuclear
                               as amended,'' to      material and
                               change the phrase     includes only
                               ``radiological        information
                               sabotage'' to         ``within the scope
                               ``sabotage,'' and     of Section 147 of
                               to remove the word    the Atomic Energy
                               ``otherwise.''        Act of 1954, as
                                                     amended.
                              The definition of     The definition of
                               ``trustworthiness     ``trustworthiness
                               and reliability''     and reliability''
                               has been revised by   is changed in
                               deleting the          response to
                               original proposed     comments that it
                               definition and        was not
                               substituting          sufficiently clear.
                               ``Trustworthiness
                               and reliability are
                               characteristics of
                               an individual
                               considered
                               dependable in
                               judgment,
                               character, and
                               performance, such
                               that disclosure of
                               Safeguards
                               Information to that
                               individual does not
                               constitute an
                               unreasonable risk
                               to the public
                               health and safety
                               or common defense
                               and security.''

[[Page 64038]]


73.8(b).....................  Section (b) is        This paragraph is
                               updated to read:      updated to include
                               ``The approved        all of the approved
                               information           information
                               collection            collection
                               requirements          requirements
                               contained in this     contained in part
                               part appear in Sec.   73.
                                Sec.   73.5,
                               73.20, 73.21,
                               73.22, 73.23,
                               73.24, 73.25,
                               73.26, 73.27,
                               73.37, 73.40,
                               73.45, 73.46,
                               73.50, 73.55,
                               73.56, 73,57,
                               73.60, 73.67,
                               73.70, 73.71,
                               73.72, 73.73,
                               73.74, and
                               appendices B, C,
                               and G.''
73.21(a)(1)(i)..............  This paragraph is     This paragraph is
                               reorganized and       changed in response
                               edited to read:       to comments to more
                               ``Establish,          clearly set out
                               implement, and        which facilities,
                               maintain an           materials, and
                               information           licensees are
                               protection system     subject to the
                               that includes the     requirements of
                               applicable measures   Sec.   73.22. The
                               for Safeguards        paragraph is
                               Information           reorganized for
                               specified in Sec.     clarity.
                               73.22 related to:
                               Power reactors; a
                               formula quantity of
                               strategic special
                               nuclear material;
                               transportation of
                               or delivery to a
                               carrier for
                               transportation of a
                               formula quantity of
                               strategic special
                               nuclear material or
                               more than 100 grams
                               of irradiated
                               reactor fuel;
                               uranium
                               hexafluoride
                               production
                               facilities; fuel
                               fabrication
                               facilities; uranium
                               enrichment
                               facilities;
                               independent spent
                               fuel storage
                               installations; and
                               geologic repository
                               operations areas.''
73.21(a)(1)(ii).............  This paragraph is     This subsection is
                               reorganized and       changed in response
                               edited to read:       to comments to more
                               ``Establish,          clearly set out
                               implement, and        which facilities,
                               maintain an           materials, and
                               information           licensees are
                               protection system     subject to the
                               that includes the     requirements of
                               applicable measures   Sec.   73.23. The
                               for Safeguards        paragraph is
                               Information           reorganized for
                               specified in Sec.     clarity. This
                               73.23 related to:     paragraph has been
                               Panoramic and         drafted to be
                               underwater            consistent with
                               irradiators that      orders previously
                               possess greater       issued by the
                               than 370 TBq          Commission, e.g.,
                               (10,000 Ci) of        Panoramic and
                               byproduct material    Underwater
                               in the form of        Irradiator Security
                               sealed sources;       Orders, RAMQC
                               manufacturers and     Transportation
                               distributors of       Orders,
                               items containing      Manufacturer and
                               source, byproduct,    Distributor
                               or special nuclear    Security Orders,
                               material in greater   Increased Controls
                               than or equal to      Orders.
                               Category 2
                               quantities of
                               concern; research
                               and test reactors
                               that possess
                               special nuclear
                               material of
                               moderate strategic
                               significance or
                               special nuclear
                               material of low
                               strategic
                               significance; and
                               transportation of
                               greater than or
                               equal to Category 2
                               quantities of
                               concern.''
73.21(a)(2).................  The word ``Federal''  In response to a
                               is added to the       comment, this
                               list of law           paragraph is
                               enforcement           amended to provide
                               officials and the     that information
                               cross reference is    protection
                               changed from ``Sec.   procedures used by
                                 73.21(a)(i)'' to    Federal police are
                               ``Sec.                presumed to meet
                               73.21(a)(1).'' The    the general
                               word ``deemed'' is    performance
                               changed to            requirement of Sec.
                               ``presumed.''           73.21(a)(1). The
                                                     word ``deemed'' is
                                                     changed to
                                                     ``presumed'' to be
                                                     consistent with
                                                     Sec.   73.21(b)(1),
                                                     which preserves the
                                                     Commission's
                                                     authority to impose
                                                     different SGI
                                                     handling
                                                     requirements on any
                                                     person who
                                                     produces, receives,
                                                     or acquires SGI.
                                                     The cross-reference
                                                     to Sec.
                                                     73.21(a)(i) is
                                                     changed to Sec.
                                                     73.21(a)(1) to
                                                     correct a
                                                     typographical
                                                     error.
73.21(b)(1).................  The phrase            This change
                               ``Safeguards          clarifies that the
                               Information           Commission may
                               handling              impose information
                               requirements'' is     protection
                               changed to            requirements
                               ``Safeguards          different from or
                               Information           in addition to
                               protection            those specified in
                               requirements.'' The   part 73 on any
                               phrase ``or in        person who
                               addition to'' is      produces, receives,
                               added. The cross-     or acquires SGI,
                               reference to Sec.     provided the
                               Sec.   73.21(a)(1)    Commission's action
                               and (2) are deleted   is within the scope
                               and reference to      of its authority
                               ``this part'' is      under Section 147
                               substituted.          of the Atomic
                                                     Energy Act of 1954,
                                                     as amended.
73.21(b)(2).................  A new section is      This paragraph is
                               added: ``The          added to indicate
                               Commission may        that the Commission
                               require, by           may impose the
                               regulation or         requirements of
                               order, that           part 73 on
                               information within    facilities or
                               the scope of          materials not
                               Section 147 of the    specifically
                               Atomic Energy Act     described in Sec.
                               of 1954, as amended   Sec.   73.21,
                               related to            73.22, or 73.23,
                               facilities or         provided the
                               materials not         Commission's action
                               specifically          is within the scope
                               described in Sec.     of Section 147 of
                               Sec.   73.21, 73.22   the Atomic Energy
                               or 73.23 be           Act of 1954, as
                               protected under       amended.
                               this part.''
73.22.......................  The phrase            The introductory
                               ``licensees           text to Sec.
                               authorized to         73.22 is changed to
                               possess'' is          conform with the
                               deleted. The phrase   changes in Sec.
                               ``and fuel cycle      73.21(a)(1)(i). The
                               facilities'' is       change specifically
                               deleted and           identifies which
                               replaced with         fuel cycle
                               ``uranium             facilities are
                               hexafluoride          subject to the
                               production            requirements of
                               facilities, fuel      Sec.   73.22.
                               fabrication
                               facilities, and
                               uranium enrichment
                               facilities;
                               independent spent
                               fuel storage
                               installations; and
                               geologic repository
                               operations areas.''
73.22(a)....................  The phrase ``non-     The first change
                               public'' is added.    clarifies that only
                               The phrase            non-public security-
                               ``protective          related
                               measures, interim     requirements are to
                               compensatory          be protected as
                               measures,             SGI. The second
                               additional security   change more closely
                               measures, and the     tracks the current
                               following as          rule language in
                               applicable'' is       Sec.   73.21(b)(1).
                               deleted.
73.22(a)(1).................  The section is        References to
                               revised to read       specific licensees
                               ``Information not     are eliminated. The
                               classified as         original proposed
                               Restricted Data or    rule language
                               National Security     inappropriately
                               Information related   limited the scope
                               to physical           of the section. The
                               protection,           revision clarifies
                               including: ''         the scope of the
                                                     revised proposed
                                                     rule and simplifies
                                                     the rule text.

[[Page 64039]]


73.22(a)(1)(i)..............  The phrase ``All      This paragraph,
                               portions of'' is      which, as
                               deleted.              originally
                                                     proposed, would
                                                     have protected
                                                     ``all portions'' of
                                                     a composite
                                                     physical security
                                                     plan for a site, is
                                                     amended in response
                                                     to comments that
                                                     such plans may
                                                     contain a mix of
                                                     safeguards and non-
                                                     SGI. The NRC
                                                     acknowledges that
                                                     there may be some
                                                     non-SGI in various
                                                     licensee security
                                                     plans and
                                                     accordingly has
                                                     deleted the phrase
                                                     ``all portions'' in
                                                     the revised
                                                     proposed rule text.
73.22(a)(1)(ii).............  The phrase ``not      The phrase ``not
                               easily discernible    easily discernible
                               by members of the     to members of the
                               public'' is added.    public'' is added
                                                     to reflect that
                                                     aspects of a
                                                     licensee's or
                                                     applicant's
                                                     physical security
                                                     system that can be
                                                     readily observed by
                                                     members of the
                                                     public are not
                                                     necessarily
                                                     considered SGI.
73.22(a)(1)(iii)............  The phrases ``for     The phrase ``for
                               security              security
                               equipment'' and       equipment'' is
                               ``not easily          added in response
                               discernible by        to comments
                               members of the        requesting
                               public'' are added.   clarification of
                                                     which emergency
                                                     power sources are
                                                     referred to in the
                                                     rule. The phrase
                                                     ``not easily
                                                     discernible to
                                                     members of the
                                                     public'' is added
                                                     to reflect that
                                                     aspects of a
                                                     licensee's or
                                                     applicant's alarm
                                                     system layouts that
                                                     can be readily
                                                     observed by members
                                                     of the public are
                                                     not necessarily
                                                     considered SGI.
73.22(a)(1)(iv).............  The phrase ``Written  This paragraph,
                               physical security     which, as
                               orders and            originally
                               procedures for        proposed, covered
                               members of the        only written
                               security              physical security
                               organization,         orders and
                               duress codes, and     procedures, is
                               patrol schedules''    amended so that it
                               is revised to read    would not be
                               ``Physical security   limited to written
                               orders and            security orders and
                               procedures issued     procedures. The
                               by the licensee for   paragraph is also
                               members of the        changed to clarify
                               security              that it would apply
                               organization          to physical
                               detailing duress      security orders and
                               codes, patrol         procedures written
                               routes and            by the licensee. In
                               schedules, or         addition, the
                               responses to          revised proposed
                               security              rule replaces
                               contingency           ``patrol routes''
                               events'';             with ``patrol
                                                     routes and
                                                     schedules.'' The
                                                     phrase ``safeguards
                                                     or security
                                                     emergencies'' is
                                                     changed to
                                                     ``security
                                                     contingency
                                                     events'' to
                                                     emphasize that the
                                                     requirement is
                                                     security-related,
                                                     and to maintain
                                                     consistency with
                                                     other regulatory
                                                     provisions.
73.22(a)(1)(v)..............  The phrase ``On-site  This paragraph,
                               and off-site          which, as
                               communications        originally
                               systems in regard     proposed, would
                               to their use for      have protected
                               security purposes''   ``[o]n-site and off-
                               is revised to read    site communications
                               ``Site-specific       systems in regard
                               design features of    to their use for
                               plant security        security
                               communications        purposes,'' is
                               systems.''            amended in the
                                                     revised proposed
                                                     rule to read
                                                     ``[s]ite-specific
                                                     design features of
                                                     plant security
                                                     communications
                                                     systems,'' in
                                                     response to a
                                                     comment that
                                                     licensees cannot
                                                     and should not
                                                     control information
                                                     describing off-site
                                                     communications
                                                     systems. The
                                                     revised proposed
                                                     rule would require
                                                     protection only of
                                                     information
                                                     regarding on-site
                                                     communications
                                                     systems.
73.22(a)(1)(vii)............  The phrase            This change uses
                               ``physical security   broader language so
                               plans, safeguards     that SGI protection
                               contingency plans''   is not limited to
                               is changed to         formal security
                               ``security plans,     plans or
                               contingency           contingency plans.
                               measures.''           Not all licensees
                                                     will have formally
                                                     designated plans.
                                                     The goal is to
                                                     protect information
                                                     about the physical
                                                     security system and
                                                     security
                                                     procedures, whether
                                                     or not they are
                                                     contained in a
                                                     single written
                                                     plan.
73.22(a)(1)(viii)...........  The phrase ``All      This paragraph,
                               portions of'' is      which, as proposed,
                               deleted. The phrase   would have
                               ``safeguards          protected ``all
                               contingency plan''    portions'' of a
                               is changed to         composite
                               ``safeguards          safeguards
                               contingency plan/     contingency plan,
                               measures.''           is amended in
                                                     response to
                                                     comments that such
                                                     plans may contain a
                                                     mix of safeguards
                                                     and non-SGI. The
                                                     NRC acknowledges
                                                     that there may be
                                                     some non-SGI in
                                                     various licensee
                                                     security plans and
                                                     accordingly deleted
                                                     the phrase ``all
                                                     potions.'' The
                                                     revision also
                                                     protects
                                                     information about
                                                     contingency
                                                     measures not
                                                     contained in a
                                                     formal contingency
                                                     plan.
73.22(a)(1)(ix).............  The phrase ``All      This paragraph,
                               portions of'' is      which, as
                               deleted. The phrase   originally
                               ``guard               proposed, would
                               qualification and     have protected
                               training plan'' is    ``all portions'' of
                               changed to ``guard    a composite guard
                               qualification and     qualification and
                               training plan/        training plan, is
                               measures.''           amended in response
                                                     to comments that
                                                     such plans may
                                                     contain a mix of
                                                     safeguards and non-
                                                     SGI. The NRC
                                                     acknowledges that
                                                     there may be some
                                                     non-SGI in various
                                                     licensee security
                                                     plans and
                                                     accordingly deleted
                                                     the phrase ``all
                                                     portions.'' The
                                                     revised proposed
                                                     rule would also
                                                     protect information
                                                     about guard
                                                     training not
                                                     contained in a
                                                     formal training and
                                                     qualification plan.

[[Page 64040]]


73.22(a)(1)(x)..............  The phrase            This paragraph is
                               ``Information         reworded slightly
                               concerning onsite     for clarification.
                               or offsite response   The phrase
                               forces, including     ``safeguards or
                               size, identity,       security
                               armament, and         emergencies'' is
                               arrival times of      changed to
                               such forces           ``security
                               committed to          contingency
                               respond to security   events'' to
                               emergencies'' is      emphasize that the
                               revised to read       requirement is
                               ``Information         security-related,
                               relating to onsite    and to maintain
                               or offsite response   consistency with
                               forces, including     other regulatory
                               size, armament of     provisions.
                               response forces,
                               and arrival times
                               of such forces
                               committed to
                               respond to security
                               contingency
                               events;''
73.22(a)(1)(xi).............  The phrase ``The      As originally
                               elements and          proposed, this
                               characteristics of    section referred
                               the Design Basis      generically to
                               Threat in a level     ``information that
                               of detail greater     would disclose the
                               than as specified     details of the
                               in Sec.   73.1 or     Design Basis
                               other information     Threat.'' The
                               that would disclose   section has been
                               the Design Basis      reworded to
                               Threat, including     explicitly identify
                               the tactics and       the information
                               capabilities          that would be
                               required to defend    protected under the
                               against that          revised proposed
                               threat'' is revised   rule. The Design
                               to read: ``The        Basis Threat is set
                               Adversary             out in its entirety
                               Characteristics       in Sec.   73.1. The
                               Document or other     information
                               implementing          protected is the
                               guidance associated   Adversary
                               with the Design       Characteristics
                               Basis Threat in       Document and other
                               Sec.   73.1;''        Design Basis Threat
                                                     implementing
                                                     guidance, which
                                                     contain detailed
                                                     descriptions of the
                                                     operational and
                                                     tactical
                                                     capabilities of the
                                                     hypothetical
                                                     adversary force
                                                     more generally
                                                     described in the
                                                     Design Basis Threat
                                                     rule.
73.22(a)(1)(xii)............  The phrase ``related  This paragraph is
                               to the physical       revised in response
                               protection'' at the   to comments that
                               beginning of the      the section was too
                               original proposed     broadly-worded as
                               rule text is          proposed. The
                               changed to            revision clarifies
                               ``revealing site-     that the analyses,
                               specific details.''   procedures,
                               The phrase            scenarios, and
                               ``unauthorized        other information
                               disclosure of such    described in this
                               information'' is      section are
                               changed to            considered SGI only
                               ``unauthorized        if they reveal
                               disclosure of such    ``site-specific
                               analyses,             details'' about the
                               procedures,           physical protection
                               scenarios, or other   of the facility or
                               information.'' In     source, byproduct,
                               addition, the         or special nuclear
                               phrase ``emergency    material. The
                               planning'' is         substitution of
                               deleted and is        ``security-
                               replaced with         related'' for
                               ``security-           ``emergency
                               related.'' The        planning'' is made
                               phrase ``material     to clarify that
                               or a facility'' at    emergency
                               the end of the        preparedness plans
                               original proposed     should remain
                               rule text is          publicly available,
                               changed to            unless a specific
                               ``source,             emergency
                               byproduct, or         preparedness
                               special nuclear       procedure contains
                               material.''           information which
                                                     could potentially
                                                     need to be
                                                     protected as SGI.
73.22(a)(1)(xiii)...........  This paragraph is     This paragraph is
                               deleted.              deleted as
                                                     unnecessary. The
                                                     information this
                                                     section would have
                                                     protected is
                                                     protected under
                                                     Sec.
                                                     73.22(a)(1)(xi).
73.22(a)(2).................  The word              The words
                               ``otherwise'' and     ``protection of''
                               the phrase            are deleted to
                               ``protection of''     correct a
                               are deleted.          grammatical error
                                                     in the original
                                                     proposed rule. The
                                                     word ``otherwise''
                                                     is deleted to
                                                     simplify the
                                                     revised proposed
                                                     rule text.
73.22(a)(2)(i)..............  The phrase ``All      This paragraph,
                               portions of the       which, as proposed,
                               composite             would have
                               transportation        protected ``all
                               physical security     portions'' of a
                               plan'' is changed     composite physical
                               to ``The composite    security plan for
                               physical security     transportation, is
                               plan for              amended in response
                               transportation;''     to comments that
                                                     such plans may
                                                     contain a mix of
                                                     SGI and non-SGI.
                                                     The NRC
                                                     acknowledges that
                                                     there may be some
                                                     non-SGI in various
                                                     licensee security
                                                     plans and
                                                     accordingly deleted
                                                     the phrase ``all
                                                     portions.''
73.22(a)(2)(ii).............  The section is        This section has
                               revised to read       been changed to
                               ``Schedules and       more closely track
                               itineraries for       the relevant
                               specific shipments    statutory language
                               of source material,   in Section 147 of
                               byproduct material,   the AEA, and to
                               high-level nuclear    reflect the NRC's
                               waste, or             practice of
                               irradiated reactor    decontrolling
                               fuel. Schedules for   shipment schedules
                               shipments of source   and itineraries
                               material, byproduct   after completion of
                               material, high-       the shipment.
                               level nuclear
                               waste, or
                               irradiated reactor
                               fuel are no longer
                               controlled as
                               Safeguards
                               Information 10 days
                               after the last
                               shipment of a
                               current series'';
73.22(a)(2)(vi).............  The phrase            This paragraph is
                               ``safeguards or       reworded slightly
                               security              for clarification.
                               emergencies'' is      The phrase
                               changed to            ``safeguards or
                               ``security            security
                               contingency           emergencies'' is
                               events.''             changed to
                                                     ``security
                                                     contingency
                                                     events'' to
                                                     emphasize that the
                                                     requirement is
                                                     security-related,
                                                     and to maintain
                                                     consistency with
                                                     other regulatory
                                                     provisions.
73.22(a)(2)(vii)............  The phrase            The word
                               ``radiological        ``radiological'' is
                               sabotage'' is         deleted because the
                               changed to            definition of SGI
                               ``sabotage.'' The     relates broadly to
                               phrase ``irradiated   sabotage, not only
                               reactor fuel'' is     ``radiological
                               added.                sabotage.'' The
                                                     addition of
                                                     ``irradiated
                                                     reactor fuel''
                                                     makes the
                                                     terminology of this
                                                     paragraph
                                                     consistent with
                                                     that used elsewhere
                                                     in 10 CFR part 73.
73.22(a)(2)(viii)...........  The phrase ``and      This paragraph is
                               other information''   revised in response
                               is added. The         to comments that
                               phrase                the section was too
                               ``unauthorized        broadly worded as
                               disclosure of such    proposed. The
                               information'' is      revision clarifies
                               changed to            that the analyses,
                               ``unauthorized        procedures,
                               disclosure of such    scenarios, and
                               analyses,             other information
                               procedures,           described in this
                               scenarios, or other   section are
                               information.'' The    considered SGI only
                               phrase ``such         if they reveal site-
                               material'' at the     specific details
                               end of the original   about the physical
                               proposed rule text    protection of the
                               is changed to         facility or source,
                               ``source,             byproduct, or
                               byproduct, or         special nuclear
                               special nuclear       material.
                               material.''

[[Page 64041]]


73.22(a)(3).................  The section is        References to
                               revised to read       specific licensees
                               ``Information not     are eliminated. The
                               classified as         original proposed
                               National Security     rule language
                               Information or        inappropriately
                               Restricted Data       limited the scope
                               pertaining to         of the section. The
                               safeguards and        revisions clarify
                               security              the scope of the
                               inspections and       revised proposed
                               reports,              rule and simplify
                               including:''          the rule text.
73.22(a)(3)(ii).............  The phrase ``after    This paragraph is
                               the investigation     changed to reflect
                               has been              that NRC will
                               completed'' is        release general
                               changed to ``after    investigation
                               corrective actions    reports after
                               have been             corrective action
                               completed.''          has been taken,
                                                     unless the
                                                     information is
                                                     properly withheld
                                                     under the Freedom
                                                     of Information Act.
                                                     Reports of
                                                     investigation will
                                                     not be released
                                                     before corrective
                                                     action is taken
                                                     because the reports
                                                     could be used to
                                                     exploit security
                                                     deficiencies.
73.22(a)(4).................  The word              This paragraph is
                               ``paragraph'' is      changed to correct
                               changed to            a grammatical
                               ``section.'' The      error.
                               words ``as
                               defined'' are
                               changed to ``as set
                               forth.''
73.22(a)(5).................  The phrase ``Other    This paragraph is
                               information'' is      changed in response
                               changed to ``Other    to comments that it
                               information within    was too broadly-
                               the scope of          worded as proposed.
                               Section 147 of the    The change makes
                               Atomic Energy Act     clear that the
                               of 1954, as           Commission retains
                               amended.'' The        the authority to
                               phrase ``material     issue further
                               or a facility'' at    orders or
                               the end of the        regulations
                               original proposed     requiring the
                               rule text is          protection of
                               changed to            categories of
                               ``source,             information not
                               byproduct, or         described in the
                               special nuclear       regulations,
                               material or a         provided the
                               facility.''           information still
                                                     falls within the
                                                     cope of Section 147
                                                     of the Atomic
                                                     Energy Act of 1954,
                                                     as amended.
73.22(b)....................  This paragraph has    The structure of
                               been revised and      this paragraph has
                               reorganized in the    been revised for
                               revised proposed      clarification.
                               rule for clarity.     These revisions are
                               However, the          intended to make
                               conditions of         clear that no one
                               access to SGI--       would have access
                               established need to   to SGI without
                               know, FBI criminal    first establishing
                               history check, and    a ``need to know''.
                               background check to   They are intended
                               determine             to make clear that
                               trustworthiness and   unless an
                               reliability--have     individual is
                               not changed. The      exempt by virtue of
                               background check to   his or her
                               determine             occupational status
                               trustworthiness and   all individuals
                               reliability           would be required
                               contained in Sec.     to undergo an FBI
                               73.22(b)(1)(i)(A)     criminal history
                               of the original       check and a
                               proposed rule is in   background check to
                               Sec.   73.22(b)(2)    determine
                               of the revised        trustworthiness and
                               proposed rule. The    reliability before
                               exemptions from       obtaining access to
                               criminal history      SGI.
                               and background
                               checks contained in
                               Sec.
                               73.22(b)(1)(i)-(vi)
                               are cross-
                               referenced in Sec.
                                73.22(b)(3) of
                               revised proposed
                               rule. The specific
                               exemptions are
                               listed in Sec.
                               73.59.
73.22(b)(1).................  This section has      This paragraph has
                               been revised and      been revised to
                               simplified. It now    require an
                               reads in its          established ``need
                               entirety: ``Except    to know'' and an
                               as the Commission     FBI criminal
                               may otherwise         history check
                               authorize, no         before access to
                               person may have       SGI. There would be
                               access to             no exception to the
                               Safeguards            `need to know'
                               Information unless    requirement. All
                               the person has an     exemptions to the
                               established ``need    FBI criminal
                               to know'' for the     history and
                               information and has   background check
                               undergone a Federal   requirements are
                               Bureau of             now contained in
                               Investigation         Sec.
                               criminal history      73.22(b)(3)(i)-(vii
                               check using the       ).
                               procedures set
                               forth in Sec.
                               73.57.''
73.22(b)(2).................  This section now      The paragraph has
                               reads: ``In           been revised to
                               addition, a person    clarify that
                               to be granted         individuals are
                               access to SGI must    subject to a
                               be trustworthy and    background check
                               reliable, based on    before they must be
                               a background check    granted access to
                               or other means        SGI. The
                               approved by the       determination that
                               Commission.''         an individual is
                                                     trustworthy and
                                                     reliable would be
                                                     based upon a
                                                     background check.
                                                     The background
                                                     check for
                                                     trustworthiness and
                                                     reliability would
                                                     be in addition the
                                                     FBI criminal
                                                     history check. The
                                                     term ``background
                                                     check'' is defined
                                                     in Sec.  73.2.
73.22(b)(3).................  This section          This paragraph
                               provides that Sec.    provides that Sec.
                               73.59 lists the        73.59 lists the
                               categories of         categories of
                               individuals who are   individuals who
                               exempt from the       would be exempt
                               requirements of       from a FBI criminal
                               Sec.   73.22(b)(1)    history check
                               & (2) by virtue of    requirement in Sec.
                               their occupational      73.22(b)(1) and
                               status.               the background
                                                     check to determine
                                                     trustworthiness and
                                                     reliability
                                                     requirements in
                                                     Sec.   73.22(b)(2)
                                                     by virtue of their
                                                     occupation status.
                                                     These individuals
                                                     are not exempt from
                                                     the ``need to
                                                     know'' requirement.
73.22(b)(4).................  This section has      This paragraph was
                               been added. It        added to clarify
                               reads: ``For          when the need to
                               persons               know determination
                               participating in an   would be made and
                               NRC adjudicatory      who would determine
                               proceeding other      whether a
                               than those            participant in an
                               identified in Sec.    NRC adjudicatory
                                73.9, the ``need     proceeding has a
                               to know''             ``need to know.''
                               determination shall
                               be made by the
                               originator of the
                               Safeguards
                               Information upon
                               receipt of a
                               request for access
                               to the Safeguards
                               Information. Where
                               the information is
                               in the possession
                               of the originator
                               and the NRC staff
                               (dual possession),
                               whether in its
                               original form or
                               incorporated into
                               another document by
                               the recipient, the
                               NRC staff makes the
                               determination. In
                               the event of a
                               dispute regarding
                               the ``need to
                               know''
                               determination, the
                               presiding officer
                               of the proceeding
                               shall determine
                               whether the ``need
                               to know'' findings
                               in Sec.   73.2 can
                               be made.''

[[Page 64042]]


73.22(b)(5).................  This paragraph was    The change of the
                               Sec.   73.22(b)(3)    phrase ``as set
                               in the original       forth in paragraph
                               proposed rule. The    (b)(1)'' to ``as
                               phrase ``except as    set in this
                               set forth in          section'' results
                               paragraph (b)(1)''    from the
                               has been deleted      restructuring of
                               and replaced with     Sec.   73.22(b).
                               ``except as set
                               forth in this
                               section.''
                  73.22(c)(1  The phrase            This paragraph is
                   ).          ``Safeguards          revised to make
                               Information within    clear that SGI
                               alarm stations,       could be left
                               continuously manned   outside of a locked
                               guard posts or        security storage
                               ready rooms need      container if
                               not be locked in a    attended by
                               locked security       individuals
                               storage container''   authorized access
                               is changed to         to SGI. The
                               ``Safeguards          original proposed
                               Information within    rule could have
                               alarm stations, or    been interpreted to
                               rooms continuously    allow unauthorized
                               occupied by           persons access to
                               authorized            SGI.
                               individuals need
                               not be stored in a
                               locked security
                               storage
                               container.''
73.22(c)(2).................  The phrase ``so as    The word
                               to prevent            ``unauthorized'' is
                               disclosure to an      removed because it
                               unauthorized          was redundant. The
                               individual not        word ``shall'' is
                               authorized access     replacing ``may''
                               to Safeguards         because it is a
                               Information'' is      requirement that
                               changed to ``so as    locked security
                               to prevent            storage containers
                               disclosure to an      do not identify
                               individual not        contents as SGI.
                               authorized access
                               to Safeguards
                               Information.'' The
                               word ``may'' is
                               changed to
                               ``shall.''
73.22(d)(1).................  The phrase ``must be  This paragraph is
                               marked `Safeguards    revised in response
                               Information' '' is    to comments that
                               changed to ``must     the proposed
                               be marked to          document-marking
                               indicate the          language was too
                               presence of such      prescriptive. The
                               information.'' The    changes are
                               phrase ``to           intended to allow
                               indicate the          more flexibility in
                               presence of           document marking.
                               protected             The change from
                               information'' is      ``each'' to ``the''
                               deleted from the      is to conform this
                               end of the first      paragraph with Sec.
                               sentence. The word      73.23(d)(1).
                               ``each'' in the
                               last sentence is
                               changed to ``the.''
73.22(d)(1)(iii)............  The word ``would''    The word ``would''
                               is changed to         is changed to
                               ``will''.             ``will.''
73.22(d)(2).................  The phrase ``In       This paragraph is
                               addition to the       revised in response
                               `Safeguards           to comments that
                               Information'          the proposed
                               markings'' is         language was too
                               changed to ``In       prescriptive. The
                               addition to the       changes are
                               markings.'' The       intended to allow
                               phrase                more flexibility in
                               ``transmittal         document marking.
                               letters or
                               memoranda'' is
                               changed to ``any
                               transmittal letters
                               or memoranda to or
                               from the NRC,'' and
                               ``e.g.'' is changed
                               to ``i.e.''
73.22(d)(3).................  The phrase ``Portion  This paragraph is
                               marking of            revised in response
                               documents or other    to comments seeking
                               information is        clarification of
                               required for          which documents
                               correspondence to     require portion
                               and from the NRC''    marking. The intent
                               is changed to         of the revised
                               ``Portion marking     section is to
                               is required only      require portion
                               for correspondence    marking only for
                               to and from the NRC   cover letters and
                               (i.e., cover          similar documents
                               letters, but not      that transmit
                               attachments) that     correspondence to
                               contains Safeguards   or from the NRC.
                               Information.'' The    Attachments to the
                               word                  transmittal
                               ``transmittal'' is    document do not
                               added before          need to be portion
                               ``document.''         marked. This
                                                     requirement would
                                                     enable the NRC to
                                                     better identify
                                                     some of its
                                                     security-related
                                                     regulatory
                                                     activities to the
                                                     public because it
                                                     will be
                                                     administratively
                                                     easier to redact
                                                     and disclose
                                                     portion-marked
                                                     transmittal
                                                     documents.
73.22(d)(4).................  This paragraph as     This paragraph is
                               proposed is deleted   deleted from the
                               and substituted       revised proposed
                               with a revision of    rule in response to
                               the proposed Sec.     comments opposing
                               73.22(d)(5). The      the requirement to
                               revised proposed      re-mark SGI that
                               rule Sec.             existed before the
                               73.22(d)(4) reads     effective date of a
                               ``Marking of          final rule.
                               documents
                               containing or
                               transmitting
                               Safeguards
                               Information shall,
                               at a minimum
                               include the words
                               `Safeguards
                               Information' to
                               ensure
                               identification of
                               protected
                               information for the
                               protection of
                               facilities and
                               material covered by
                               10 CFR 73.22.''
73.22(d)(5).................  The proposed          The paragraph is
                               paragraph was         reworded and
                               revised and moved     renumbered as Sec.
                               to Sec.                73.22(d)(4) in the
                               73.22(d)(4).          revised proposed
                                                     rule. The revision
                                                     requires that
                                                     future document
                                                     markings include
                                                     the words
                                                     ``Safeguards
                                                     Information''
                                                     ensure easy
                                                     identification and
                                                     a level of
                                                     consistency among
                                                     those required to
                                                     mark such
                                                     information.
73.22(e)....................  The phrase ``If       This paragraph is
                               Safeguards            revised to provide
                               Information is        more general
                               reproduced on a       instructions on
                               digital copier that   reproduction of
                               would retain          SGI. The original
                               Safeguards            proposed rule
                               Information in its    limited the
                               memory, then the      instructions to
                               copier may not be     digital copiers.
                               connected to a        The revision
                               network'' is          applies a
                               changed to            performance-based
                               ``Equipment used to   standard to any
                               reproduce             equipment used to
                               Safeguards            reproduce SGI.
                               Information must be
                               evaluated to ensure
                               that unauthorized
                               individuals cannot
                               access Safeguards
                               Information (e.g.,
                               unauthorized
                               individuals cannot
                               access SGI by
                               gaining access to
                               retained memory or
                               network
                               connectivity).''
73.22(f)(2).................  The phrase            This paragraph is
                               ``nationwide          revised so that
                               overnight'' is        commercial delivery
                               deleted.              companies
                                                     transporting SGI do
                                                     not have to provide
                                                     nationwide
                                                     overnight service.
                                                     SGI may be
                                                     transported by
                                                     trusted, local
                                                     carriers, so long
                                                     as the carrier has
                                                     computer tracking
                                                     capabilities.

[[Page 64043]]


73.22(f)(3).................  This paragraph has    The paragraph has
                               been revised to       been revised and
                               read: ``Except        updated to more
                               under emergency or    accurately reflect
                               extraordinary         information
                               conditions,           security
                               Safeguards            requirements.
                               Information shall
                               be transmitted
                               outside an
                               authorized place of
                               use or storage only
                               by (a) NRC approved
                               secure electronic
                               devices, such as
                               facsimiles or
                               telephone devices,
                               provided that
                               transmitters and
                               receivers implement
                               processes that will
                               provide high
                               assurance that
                               Safeguards
                               Information is
                               protected before
                               and after the
                               transmission or (b)
                               electronic mail
                               through the
                               internet, provided
                               that (i) the
                               information is
                               encrypted by the
                               NRC-approved
                               encryption modules
                               and algorithms;
                               (ii) the
                               information is
                               produced by a self
                               contained secure
                               automatic data
                               process system; and
                               (iii) transmitters
                               and receivers
                               implement the
                               information
                               handling processes
                               that will provide
                               high assurance that
                               Safeguards
                               Information is
                               protected before
                               and after
                               transmission.
                               Physical security
                               events required to
                               be reported
                               pursuant to Sec.
                               73.71 are
                               considered to be
                               extraordinary
                               conditions.''
73.22(g)(1).................  The word ``may'' is   The phrase ``shall
                               changed to            be'' is replacing
                               ``shall'' in the      ``may be'' to
                               third sentence.       clarify that stand-
                                                     alone computers or
                                                     computer systems
                                                     are required not to
                                                     be physically or in
                                                     any other way
                                                     connected to a
                                                     network accessible
                                                     by users who are
                                                     not authorized
                                                     access to SGI.
73.22(g)(3).................  The word              The word
                               ``automated'' is      ``automated''
                               deleted.              unnecessarily
                                                     appeared in the
                                                     original proposed
                                                     rule and has been
                                                     deleted.
73.22(i)....................  The phrase ``tearing  This paragraph is
                               into small pieces''   revised to
                               is deleted from the   eliminate redundant
                               second sentence.      language and to
                               The third sentence    clarify that
                               is change from        document
                               ``Piece sizes one     destruction results
                               half inch or          in piece sizes no
                               smaller composed of   wider than one-
                               several pages or      quarter inch,
                               documents and         thoroughly mixed.
                               thoroughly mixed      Changing the word
                               would be considered   ``must'' to
                               completely            ``shall'' conforms
                               destroyed'' to        this paragraph with
                               ``Piece sizes no      Sec.   73.23(i).
                               wider than one
                               quarter inch
                               composed of several
                               pages or documents
                               and thoroughly
                               mixed are
                               considered
                               completely
                               destroyed.'' The
                               word ``must'' is
                               changed to
                               ``shall.''
73.23.......................  The first sentence    This section is
                               is deleted and        changed in response
                               replaced with         to comments
                               ``This section        requesting that the
                               contains specific     rule more clearly
                               requirements for      set out which
                               the protection of     facilities,
                               Safeguards            materials, and
                               Information related   licensees and
                               to panoramic and      subject to the
                               underwater            requirements of
                               irradiators that      Sec.   73.23. It
                               possess greater       has been drafted to
                               than 370 TBq          be consistent with
                               (10,000 Ci) of        orders previously
                               byproduct material    issued by the
                               in the form of        Commission, e.g.,
                               sealed sources;       Panoramic and
                               manufactures and      Underwear
                               distributors of       Irradiator Security
                               items containing      Orders, RAMQC
                               source, byproduct,    Transportation
                               or special nuclear    Orders,
                               material in greater   Manufacturer and
                               than or equal to      Distributor Orders,
                               Category 2            Increased Control
                               quantities of         Orders. The word
                               concern;              ``handling'' is
                               transportation of     used to conform the
                               more than 1000 TBq    sentence with the
                               (27,000 Ci) but       paragraph.
                               less than or equal
                               to 100 grams of
                               spent nuclear fuel;
                               research and test
                               reactors that
                               possess special
                               nuclear material of
                               moderate strategic
                               significance or
                               special nuclear
                               material of low
                               strategic
                               significance; and
                               transportation of
                               greater than or
                               equal to Category 2
                               quantities of
                               concern.'' In the
                               second sentence,
                               the word
                               ``protection'' is
                               replaced by
                               ``handling.''
73.23(a)....................  The phrase ``non-     The words ``non-
                               public'' is added.    public'' are added
                               The phrase            for clarification.
                               ``Safeguards          The phrase
                               Information'' is      ``Safeguards
                               changed to            Information'' is
                               ``Safeguards          changed to
                               Information           ``Safeguards
                               designated as         Information
                               Safeguards            designated as
                               Information-          Safeguards
                               Modified              Information-
                               Handling.''           Modified Handling''
                                                     to better
                                                     distinguish SGI-M,
                                                     needing modified
                                                     protection, from
                                                     SGI for reactors
                                                     and fuel cycle
                                                     facilities that
                                                     require a higher
                                                     level of
                                                     protection.
73.23(a)(1).................  This section is       References to
                               revised to read       specific licensees
                               ``Information not     are eliminated. The
                               classified as         original proposed
                               Restricted Data or    rule language
                               National Security     improperly limited
                               Information related   the scope of the
                               to physical           section. The
                               protection,           revision clarify
                               including:''          the scope of the
                                                     revised proposed
                                                     rule and simplify
                                                     the rule text.
73.23(a)(1)(i)..............  The phrase ``All      This paragraph,
                               portions of'' is      which, as
                               deleted.              originally
                                                     proposed, would
                                                     have protected
                                                     ``all portions'' of
                                                     a composite
                                                     physical security
                                                     plan, is amended in
                                                     response to
                                                     comments that such
                                                     plans may contain a
                                                     mix of SGI and non-
                                                     SGI. The NRC
                                                     acknowledges that
                                                     there may be some
                                                     non-SGI in various
                                                     licensee security
                                                     plans and
                                                     accordingly deleted
                                                     the phrase ``all
                                                     portions'' in the
                                                     revised proposed
                                                     rule.
73.23(a)(1)(ii).............  The phrase ``not      The phrase ``not
                               easily discernible    easily discernible
                               by members of the     to members of the
                               public'' is added.    public'' is added
                                                     to reflect that
                                                     aspects of a
                                                     licensee's or
                                                     applicant's alarm
                                                     system layouts that
                                                     can be readily
                                                     observed by members
                                                     of the public are
                                                     not necessarily
                                                     considered SGI.

[[Page 64044]]


73.23(a)(1)(iii)............  The phrases ``for     The phrase ``for
                               security              security
                               equipment'' and       equipment'' is
                               ``not easily          added in response
                               discernible by        to comments
                               members of the        requesting
                               public'' are added.   clarification of
                                                     which emergency
                                                     power sources are
                                                     referred to in the
                                                     rule. The phrase
                                                     ``not easily
                                                     discernible to
                                                     members of the
                                                     public'' is added
                                                     to reflect that
                                                     aspects of a
                                                     licensee's or
                                                     applicant's alarm
                                                     system layouts that
                                                     can be readily
                                                     observed by members
                                                     of the public would
                                                     not necessarily be
                                                     considered SGI.
73.23(a)(1)(iv).............  The phrase ``Written  This paragraph is
                               physical security     revised to clarify
                               orders and            that it applies to
                               procedures for        orders and
                               members of the        procedures issued
                               security              by the licensee
                               organization,         regarding certain
                               duress codes, and     security
                               patrol schedules''    activities.
                               is revised to read
                               ``Physical security
                               orders and
                               procedures issued
                               by the licensee for
                               members of the
                               security
                               organization
                               detailing duress
                               codes, patrol
                               routes and
                               schedules, or
                               responses to
                               security
                               contingency
                               events'';
73.23(a)(1)(v)..............  The phrase ``On-site  This paragraph is
                               and off-site          revised in response
                               communications        to comments that
                               systems in regard     the original
                               to their use for      proposed rule was
                               security purposes''   overly broad. This
                               is revised to read    paragraph now
                               ``Site-specific       requires protection
                               design features of    of site-specific
                               plant security        design features of
                               communications        facility
                               systems'';            communications
                                                     systems.
73.23(a)(1)(vii)............  The words ``The       This paragraph is
                               composite'' are       revised to more
                               added at the          closely track the
                               beginning of the      language in Sec.
                               section. The phrase   73.22(a)(1)(ix).
                               ``guard               Also, the revision
                               qualification and     protects
                               training              information about
                               procedures'' is       guard training not
                               changed to ``guard    contained in a
                               qualification and     formal training and
                               training plan/        qualification plan.
                               measures.''
73.23(a)(1)(ix).............  The phrase            The paragraph is
                               ``Information         reworded slightly
                               concerning offsite    for clarification.
                               response forces,      The phrase
                               including size,       ``safeguards or
                               identity, armament,   security
                               and arrival times     emergencies'' is
                               of such forces        changed to
                               committed to          ``security
                               respond to            contingency
                               safeguards or         events'' to
                               security              emphasize that the
                               emergencies'' is      requirement is
                               revised to read       security-related,
                               ``Information         and to maintain
                               relating to onsite    consistency with
                               or offsite response   other regulatory
                               forces, including     provisions.
                               size, armament of
                               response forces,
                               and arrival times
                               of such forces
                               committed to
                               respond to security
                               contingency events;
                               and''
73.23(a)(1)(x)..............  The phrase ``related  This paragraph is
                               to the physical       revised in response
                               protection of'' at    to comments that
                               the beginning of      the section was too
                               the original          broadly worded as
                               proposed rule text    proposed. The
                               is changed to         revision clarifies
                               ``revealing site-     that the analyses,
                               specific details      procedures,
                               of.'' The phrase      scenarios, and
                               ``unauthorized        other information
                               disclosure of such    described in this
                               information'' is      section are
                               changed to            considered SGI only
                               ``unauthorized        if they reveal
                               disclosure of such    ``site-specific
                               analyses,             details'' about the
                               procedures,           physical protection
                               scenarios, and        of the facility or
                               information.'' In     source, byproduct,
                               addition, the         or special nuclear
                               phrase ``emergency    material''. The
                               planning'' is         substitution of
                               deleted and is        ``security-
                               replaced with         related'' for
                               ``security-           ``emergency
                               related.'' The        planning'' is made
                               phrase ``material     to clarify that
                               or a facility'' at    emergency
                               the end of the        preparedness plans
                               original proposed     should remain
                               rule text is          publicly available,
                               changed to            unless a specific
                               ``source,             emergency
                               byproduct, or         preparedness
                               special nuclear       procedure contains
                               material''.           information which
                                                     could potentially
                                                     need to be
                                                     protected as SGI.
73.23(a)(2).................  This section is       The language is
                               revised to read       revised to more
                               ``Information not     precisely define
                               classified as         which types of
                               Restricted Data or    information would
                               National              be protected under
                               Information related   the revised
                               to the physical       proposed rule. The
                               protection of         word ``otherwise''
                               shipments of more     is removed to
                               than 1000 Tbq         simplify the
                               (27,000 Ci) but       revised proposed
                               less than or equal    rule text.
                               to 100 grams of
                               spent nuclear fuel,
                               source material and
                               byproduct material
                               in Category 2
                               quantities of
                               concern, and
                               special nuclear
                               material in less
                               than a formula
                               quantity (except
                               for those materials
                               covered under Sec.
                                73.22),
                               including:''
73.23(a)(2)(i)..............  The phrase            This paragraph is
                               ``security features   revised so that it
                               of a transportation   more accurately
                               physical security     describes the type
                               plan'' is changed     of information that
                               to ``transportation   would be protected.
                               security measures,    The original
                               including physical    proposed rule would
                               security plans and    have required
                               procedures,           protection of a
                               immobilization        ``transportation
                               devices, and escort   physical security
                               requirements, more    plan,'' but not all
                               detailed than NRC     licensees subject
                               regulations.'' The    to this section
                               phrase ``Scheduling   will have such a
                               and itinerary         plan. The revised
                               information may be    language is broader
                               shared with others    and would cover
                               on a ``need to        ``information
                               know'' basis and is   regarding
                               not designated as     transportation
                               Safeguards            security measures,
                               Information-          including physical
                               Modified Handling''   security plans and
                               has been deleted      procedures * * *''
                               from this paragraph
                               of the revised
                               proposed rule.

[[Page 64045]]


73.23(a)(2)(ii).............  The text that         This paragraph has
                               appeared in this      been added to
                               paragraph of the      include protection
                               original proposed     of information
                               rule is renumbered    associated with
                               to Sec.               transportation of
                               73.23(a)(2)(iii).     radioactive
                               In its place, the     materials in
                               following paragraph   greater than or
                               has been added:       equal to Category 1
                               ``Scheduling and      quantities of
                               itinerary             concern.
                               information for
                               shipments
                               (scheduling and
                               itinerary
                               information for
                               shipments that are
                               inherently self-
                               disclosing may be
                               decontrolled after
                               shipment departure.
                               Scheduling and
                               itinerary
                               information for
                               shipments that are
                               not inherently self-
                               disclosing may be
                               decontrolled 2 days
                               after the shipment
                               is completed.
                               Scheduling and
                               itinerary
                               information used
                               for the purpose of
                               preplanning,
                               coordination, and
                               advance
                               notification may be
                               shared with others
                               on a ``need to
                               know'' basis and
                               need not be
                               designated
                               Safeguards
                               Information-
                               Modified
                               Handling);''
73.23(a)(2)(iii)............  Due to renumbering,   This paragraph was
                               this paragraph now    renumbered from
                               reads:                (ii) to (iii).
                               ``Arrangements with
                               and capabilities of
                               local police
                               response forces,
                               and locations of
                               safe havens;'' The
                               paragraph reading:
                               ``Limitations of
                               communications
                               during transport,''
                               which appeared in
                               this paragraph of
                               the original
                               proposed rule has
                               been deleted.
73.23(a)(2)(iv).............  In the revised        This paragraph has
                               proposed rule this    been added to
                               paragraph reads:      include protection
                               ``Details of alarm    of information
                               and communication     associated with the
                               systems,              transportation of
                               communication         radioactive
                               procedures, and       material in greater
                               duress codes;''       than or equal to
                                                     Category 1
                                                     quantities of
                                                     concern.
73.23(a)(2)(v)..............  The phrase            This paragraph,
                               ``safeguards or       which as (iv) in
                               security              the original
                               emergencies'' is      proposed rule, is
                               changed to            reworded slightly
                               ``security            for clarification
                               contingency events;   in the revised
                               and''                 proposed rule. The
                                                     phrase ``safeguards
                                                     or security
                                                     emergencies'' is
                                                     changed to
                                                     ``security
                                                     contingency
                                                     events'' to
                                                     emphasize that the
                                                     requirement is
                                                     security-related,
                                                     and to maintain
                                                     consistency with
                                                     other regulatory
                                                     provisions.
73.23(a)(2)(vi).............  The phrase            This paragraph is
                               ``emergency           revised in response
                               planning'' is         to comments that
                               deleted and is        the section was too
                               replaced with         broadly worded as
                               ``security-           proposed. The
                               related.'' The        revision clarifies
                               phrase ``and other    that the analyses,
                               information'' is      procedures,
                               added after           scenarios, and
                               ``security-related    other information
                               procedures or         described in this
                               scenarios.'' The      section are
                               phrase                considered SGI only
                               ``unauthorized        if they reveal
                               disclosure of such    ``site-specific
                               information'' is      details'' about the
                               changed to            physical protection
                               ``unauthorized        of the facility or
                               disclosure of such    source, byproduct,
                               analyses,             or special nuclear
                               procedures,           material. The
                               scenarios, or other   substitution of
                               information.'' The    ``security-
                               phrase ``sabotage     related'' for
                               of such material''    ``emergency
                               at the end of the     planning'' is made
                               original proposed     to clarify that
                               rule text is          emergency
                               changed to            preparedness plans
                               ``sabotage of         should remain
                               source, byproduct,    publicly available,
                               or special nuclear    unless a specific
                               material.''           emergency
                                                     preparedness
                                                     procedure contains
                                                     information which
                                                     could potentially
                                                     need to be
                                                     protected as SGI.
73.23(a)(3).................  The phrase            This paragraph is
                               ``relating to         revised to more
                               inspections and       precisely define
                               reports'' is          its scope, simplify
                               changed to            the revised
                               ``pertaining to       proposed rule text,
                               safeguards and        and to be
                               security              consistent with
                               inspections and       Sec.   73.22(a)(2).
                               reports.'' The
                               words ``such as''
                               are changed to
                               ``including,'' and
                               the word
                               ``otherwise'' is
                               deleted.
73.23(a)(3)(ii).............  The phrase ``after    This paragraph is
                               the investigation     changed to reflect
                               has been              that NRC would
                               completed'' is        release general
                               changed to ``after    investigation
                               corrective actions    reports after
                               have been             corrective action
                               completed.''          has been taken,
                                                     unless the
                                                     information is
                                                     properly withheld
                                                     under the Freedom
                                                     of Information Act.
                                                     Reports of
                                                     investigation would
                                                     not be released
                                                     before corrective
                                                     action is taken
                                                     because the reports
                                                     could be used to
                                                     exploit security
                                                     deficiencies.
73.23(a)(4).................  The phrase            The phrase
                               ``Safeguards          ``Safeguards
                               Information'' is      Information'' is
                               changed to            changed to
                               ``Safeguards          ``Safeguards
                               Information--Modifi   Information--Modifi
                               ed Handling.'' The    ed Handling'' to
                               word ``defined'' is   better distinguish
                               changed to ``set      between these
                               forth.''              levels of
                                                     safeguards
                                                     information, which
                                                     require different
                                                     marking, storage,
                                                     and handling
                                                     requirements.
73.23(a)(5).................  The phrase ``Other    This paragraph is
                               information'' is      changed in response
                               changed to ``Other    to comments that it
                               information within    was too broadly-
                               the scope of          worded as proposed.
                               Section 147 of the    The change makes
                               Atomic Energy Act     clear that the
                               of 1954, as           Commission retains
                               amended.'' The        the authority to
                               phrase ``material     issue further
                               or a facility'' at    orders or
                               the end of the        regulations
                               original proposed     requiring the
                               rule text is          protection of
                               changed to            categories of
                               ``source,             information not
                               byproduct, or         described in the
                               special nuclear       regulations,
                               material or a         provided the
                               facility.''           information still
                                                     falls within the
                                                     scope of Section
                                                     147 of the Atomic
                                                     Energy Act of 1954,
                                                     as amended.

[[Page 64046]]


73.23(b)....................  This paragraph has    This paragraph has
                               been revised and      been revised in the
                               reorganized in the    revised proposed
                               revised proposed      rule to implement
                               rule. The revised     Section 652 of the
                               proposed rule adds    Energy Policy Act
                               the requirement       of 2005, to clarify
                               that before an        the requirements
                               individual may be     for access to SGI-
                               granted access to     M, and to make the
                               SGI-M the             structure and
                               individual must       language this
                               undergo an FBI        section identical
                               criminal history      the structure and
                               check. The FBI        language of Sec.
                               criminal history      73.22(b). Note that
                               check is in           pursuant to the
                               addition to an        Energy Policy Act
                               established ``need    of 2005,
                               to know'' and a       individuals to be
                               background check      granted access to
                               for trustworthiness   SGI-M would be
                               and reliability.      fingerprinted for
                                                     purposes of an FBI
                                                     criminal history
                                                     check.
73.23(b)(1).................  The phrase            The phrase
                               ``Safeguards          ``Safeguards
                               Information'' is      Information'' is
                               changed to            changed to
                               ``Safeguards          ``Safeguards
                               Information--Modifi   Information
                               ed Handling.'' The    designated as
                               phrase ``a            Safeguards
                               determination of      Information--Modifi
                               trustworthiness and   ed Handling'' to
                               reliability'' is      better distinguish
                               changed to ``has      between these
                               undergone a Federal   levels of
                               Bureau of             safeguards
                               Investigation         information, which
                               criminal history      require different
                               check using the       marking, storage,
                               procedures set        and handling
                               forth in Sec.         requirements.
                               73.57.'' Section     The phrase ``and
                               73.23(b)(1) now       undergo a Federal
                               reads in its          Bureau of
                               entirety: ``Except    Investigation
                               as the Commission     criminal history
                               may otherwise         check to the extent
                               authorize, no         required by 10 CFR
                               person may have       73.57 before such
                               access to             access'' has been
                               Safeguards            added to this
                               Information           paragraph to
                               designated as         implement Section
                               Safeguards            652 of the Energy
                               Information--Modifi   Policy Act 2005,
                               ed Handling unless    which amended
                               the person has an     Section 149 of the
                               established ``need    AEA. Under the
                               to know'' for the     revised proposed
                               information and has   rule, an FBI
                               undergone a Federal   criminal history
                               Bureau of             check, an
                               Investigation         established ``need
                               criminal history      to know'', and a
                               check using the       background check
                               procedures set        for trustworthiness
                               forth in Sec.         and reliability
                               73.57.''              would be required
                                                     to access to SGI.
73.23(b)(2).................  This section now      This paragraph has
                               reads: ``In           been revised to
                               addition, a person    clarify that
                               to be granted         individuals would
                               access to SGI must    subject to a
                               be trustworthy and    background check
                               reliable, based on    before they may be
                               a background check    granted access to
                               or other means        SGI. The
                               approved by the       determination that
                               Commission.''         an individual is
                                                     trustworthy and
                                                     reliable is based
                                                     upon a background
                                                     check, or other
                                                     means approved by
                                                     the Commission. The
                                                     requirement of a
                                                     background check
                                                     for trustworthiness
                                                     and reliability is
                                                     in addition to the
                                                     FBI criminal
                                                     history check
                                                     requirement. The
                                                     term ``background
                                                     check'' is defined
                                                     in Sec.   73.2. The
                                                     requirement that
                                                     individuals undergo
                                                     a background check
                                                     to determine their
                                                     trustworthiness and
                                                     reliability prior
                                                     to access to SGI-M
                                                     was in Sec.
                                                     73.23(b)(1)(i) of
                                                     the original
                                                     proposed rule.
73.23(b)(3).................  This section          This paragraph is
                               provides that Sec.    revised to provide
                                73.59 lists the      that Sec.   73.59
                               categories of         lists the
                               individuals exempt    individuals who
                               from the criminal     would be exempt
                               history and           from the FBI
                               background check      criminal history
                               requirements of       check requirement
                               Sec.                  in Sec.
                               73.23(b)(1)&(2) by    73.23(b)(1) and the
                               virtue of their       background check
                               occupational          for trustworthiness
                               status.               and reliability
                                                     requirement in Sec.
                                                       73.23(b)(2) by
                                                     virtue of their
                                                     occupational
                                                     status.
73.23(b)(4).................  The following         This paragraph was
                               paragraph has been    added to clarify
                               added: ``For          when the ``need to
                               persons               know''
                               participating in an   determination would
                               NRC adjudicatory      be made and who
                               proceeding other      would determine
                               than those            whether a
                               specified in Sec.     participant in an
                               73.59, the `need to   NRC adjudicatory
                               know' determination   proceeding has a
                               shall be made by      ``need to know''.
                               the originator of
                               the Safeguards
                               Information upon
                               receipt of a
                               request for access
                               to the Safeguards
                               Information. Where
                               the information is
                               in the possession
                               of the originator
                               and the NRC staff,
                               whether in its
                               original form or
                               incorporated into
                               another document by
                               the recipient, the
                               NRC staff shall
                               make the
                               determination. In
                               the event of a
                               dispute regarding
                               the `need to know'
                               determination, the
                               presiding officer
                               of the proceeding
                               shall determine
                               whether the `need
                               to know' findings
                               in Sec.   73.2 can
                               be made.''
73.23(b)(5).................  This paragraph was    The change to this
                               Sec.   73.23(b)(3)    paragraph is the
                               in the original       results from the
                               proposed rule. The    restructuring of
                               phrase ``except as    Sec.   73.23(b).
                               set forth in
                               paragraph (b)(1)''
                               has been deleted
                               and replaced with
                               ``except as set
                               forth in this
                               section.''
73.23(c)(1).................  The phrase            This paragraph is
                               ``Safeguards          revised to make
                               Information'' is      clear that SGI can
                               changed to            be left outside of
                               ``Safeguards          a locked security
                               Information           storage container
                               designated as         if attended by
                               Safeguards            individuals
                               Information-Modifed   authorized access
                               Handling.'' The       to SGI. The
                               phrase ``Safeguards   original proposed
                               Information within    rule could have
                               alarm stations,       been interpreted to
                               continuously manned   allow unauthorized
                               guard posts or        persons access to
                               ready rooms need      SGI. The phrase
                               not be locked in a    ``Safeguards
                               file drawer or        Information'' is
                               cabinet'' is          changed to
                               changed to            ``Safeguards
                               ``Safeguards          Information--Modifi
                               Information           ed Handling'' to
                               designated as         better distinguish
                               Safeguards            between these
                               Information-Modifed   levels of
                               Handling within       safeguards
                               alarm stations or     information, which
                               rooms continuously    require different
                               occupied by           marking, storage,
                               authorized            and handling
                               individuals need      requirements.
                               not be locked in a
                               file drawer or
                               cabinet.''

[[Page 64047]]


73.23(c)(2).................  The phrase            The phrase
                               ``Safeguards          ``Safeguards
                               Information'' is      Information'' is
                               changed to            changed to
                               ``Safeguards          ``Safeguards
                               Information--Modifi   Information--Modifi
                               ed Handling.'' The    ed Handling'' to
                               word ``may'' is       better distinguish
                               changed to            between these
                               ``shall.''            levels of
                                                     safeguards
                                                     information, which
                                                     require different
                                                     marking, storage,
                                                     and handling
                                                     requirements. The
                                                     word ``shall'' is
                                                     replacing ``may''
                                                     because it is a
                                                     requirement that
                                                     locked file drawers
                                                     or cabinets do not
                                                     identify contents
                                                     as SGI-M.
73.23(d)(1).................  The phrase ``must be  This paragraph is
                               marked `SGI-          revised in response
                               Modified Handling'    to comments that
                               '' is changed to      the proposed
                               ``must be marked to   document-marking
                               indicate the          language was too
                               presence of           prescriptive. The
                               Safeguards            changes are
                               Information with      intended to allow
                               modified handling     more flexibility in
                               requirements.'' The   document marking.
                               phrase ``to           The phrase
                               indicate the          ``Safeguards
                               presence of           Information'' is
                               protected             changed to
                               information'' is      ``Safeguards
                               deleted from the      Information--Modifi
                               end of the first      ed Handling'' to
                               sentence. The         better distinguish
                               phrase ``Safeguards   between these
                               Information'' is      levels of
                               changed to            safeguards
                               ``Safeguards          information, which
                               Information           require different
                               designated as         marking, storage,
                               Safeguards            and handling
                               Information--Modifi   requirements.
                               ed Handling.''
73.23(d)(1)(i)..............  The second            The phrase
                               appearance of the     ``Safeguards
                               phrase ``safeguards   Information'' is
                               information'' is      changed to
                               deleted. The phrase   ``Safeguards
                               ``Safeguards          Information--Modifi
                               Information'' is      ed Handling'' to
                               changed to            better distinguish
                               ``Safeguards          between these
                               Information           levels of
                               designated as         safeguards
                               Safeguards            information, which
                               Information--Modifi   require different
                               ed Handling.'' The    marking, storage,
                               word                  and handling
                               ``designation'' is    requirements. The
                               changed to            word
                               ``determination.''    ``designation'' was
                                                     changed to
                                                     ``determination''
                                                     to conform Sec.
                                                     73.23(d)(1)(i) to
                                                     Sec.  73.22(d)(1)(i
                                                     ). The second
                                                     reference to
                                                     safeguards
                                                     information is
                                                     removed because it
                                                     was redundant.
73.23(d)(1)(iii)............  The word ``would''    The word ``would''
                               is changed to         is changed to
                               ``will''.             ``will.''
73.23(d)(2).................  The phrase ``In       This paragraph is
                               addition to the       revised in response
                               `SGI-Modified         to comments that
                               Handling'             the proposed
                               markings'' is         language was too
                               changed to ``In       prescriptive. The
                               addition to the       changes are
                               markings.'' The       intended to allow
                               phrase                more flexibility in
                               ``transmittal         document marking.
                               letter or             The phrase
                               memoranda'' is        ``Safeguards
                               changed to ``any      Information'' is
                               transmittal letters   changed to
                               or memoranda to or    ``Safeguards
                               from the NRC,''       Information--Modifi
                               ``e.g.'' is changed   ed Handling'' to
                               to ``i.e.,'' and      better distinguish
                               ``must'' is changed   between these
                               to ``shall.'' The     levels of
                               phrase ``Safeguards   safeguards
                               Information'' is      information, which
                               changed to            require different
                               ``Safeguard           marking, storage,
                               Information           and handling
                               designated as         requirements. The
                               Safeguards            word ``document''
                               Information--Modifi   was added to
                               ed Handling.'' The    conform this
                               word ``document''     paragraph to Sec.
                               is added after        73.22(d)(2).
                               ``transmittal.''
73.23(d)(3).................  The phrase ``Portion  This paragraph is
                               marking of document   revised in response
                               or other              to comments seeking
                               information is        clarification of
                               required for          which documents
                               correspondence to     require portion
                               and from the NRC''    marking. The intent
                               is changed to         of the revised
                               ``Portion marking     section is to
                               is required only      require portion
                               for correspondence    marking only for
                               to and from the NRC   cover letters and
                               (i.e., cover          similar documents
                               letters, but not      that transmit
                               attachments) that     correspondence to
                               contains Safeguards   or from the NRC.
                               Information--Modifi   Attachments to the
                               ed Handling.'' The    transmittal
                               last sentence of      document do not
                               the original          need to be portion
                               proposed rule text    marked. This
                               is deleted. The       requirement would
                               phrase ``Safeguards   enable the NRC to
                               Information'' is      better identify
                               changed to            some of its
                               ``Safeguards          security-related
                               Information           regulatory
                               designated as         activities to the
                               Safeguards            public because it
                               Information--Modifi   will be
                               ed Handling.'' The    administratively
                               word                  easier to redact
                               ``transmittal'' is    and disclose
                               added before          portion-marked
                               ``document.''         transmittal
                                                     documents. The
                                                     phrase ``Safeguards
                                                     Information'' is
                                                     changed to
                                                     ``Safeguards
                                                     Information--Modifi
                                                     ed Handling'' to
                                                     better distinguish
                                                     between these
                                                     levels of
                                                     Safeguards
                                                     Information, which
                                                     require different
                                                     marking, storage,
                                                     and handling
                                                     requirements.
73.23(d)(4).................  This paragraph did    This paragraph is
                               not appear in the     added to parallel
                               original proposed     the requirement in
                               rule and is added     Sec.   73.22(d)(4)
                               to parallel the       that documents be
                               requirement in Sec.   marked with some
                                 73.22(d)(4). This   minimum level of
                               paragraph did not     consistency.
                               appear in the         Consistency in
                               original proposed     document marking is
                               rule and is added     important to ensure
                               to parallel the       ready and proper
                               requirement in Sec.   identification of
                                 73.22(d)(4).        SGI, as well as
                                                     consistent
                                                     handling.
73.23(e)....................  The phrase ``If       This paragraph is
                               Safeguards            revised to provide
                               Information is        more general
                               reproduced on a       instructions on
                               digital copier that   reproduction of
                               would retain          SGI. The original
                               Safeguards            proposed paragraph
                               Information in its    limited the
                               memory, then the      instructions to
                               copier may not be     digital copiers.
                               connected to a        The revision
                               network'' is          applies a
                               changed to            performance-based
                               ``Equipment used to   standard to any
                               reproduce             equipment used to
                               Safeguards            reproduce SGI. The
                               Information           phrase ``Safeguards
                               designated as         Information'' is
                               Safeguards            changed to
                               Information-          ``Safeguards
                               Modified Handling     Information-
                               must be evaluated     Modified Handling''
                               to ensure that        to better
                               unauthorized          distinguish between
                               individuals cannot    these levels of
                               access the            safeguards
                               information (e.g.,    information, which
                               unauthorized          require different
                               individuals cannot    marking, storage,
                               access SGI by         and handling
                               gaining access to     requirements.
                               retained memory or
                               network
                               connectivity).''
                               The phrase
                               ``Safeguards
                               Information'' is
                               changed to
                               ``Safeguards
                               Information
                               designated as
                               Safeguards
                               Information-
                               Modified
                               Handling.''
73.23(f)(1).................  The phrase            The phrase
                               ``Safeguards          ``Safeguards
                               Information'' and     Information'' is
                               ``SGI--Modified       changed to
                               Handling'' are        ``Safeguards
                               changed to            Information-
                               ``Safeguards          Modified Handling''
                               Information           to better
                               designated as         distinguish between
                               Safeguards            these levels of
                               Information-          safeguards
                               Modified              information, which
                               Handling.''           would require
                                                     different marking,
                                                     storage, and
                                                     handling
                                                     requirements.

[[Page 64048]]


73.23(f)(2).................  The phrase            The phrase
                               ``Safeguards          ``Safeguards
                               Information'' is      Information'' is
                               changed to            changed to
                               ``Safeguards          ``Safeguards
                               Information           Information-
                               designated as         Modified Handling''
                               Safeguards            to better
                               Information-          distinguish between
                               Modified              these levels of
                               Handling.'' The       safeguards
                               words ``nationwide    information, which
                               overnight'' are       require different
                               deleted.              marking, storage,
                                                     and handling
                                                     requirements. The
                                                     removal of the
                                                     words ``nationwide
                                                     overnight''
                                                     indicates that
                                                     commercial delivery
                                                     companies
                                                     transporting SGI-M
                                                     would not have to
                                                     provide nationwide
                                                     overnight service.
                                                     SGI-M may be
                                                     transported by
                                                     trusted, local
                                                     carriers, so long
                                                     as the carrier has
                                                     computer tracking
                                                     capabilities.
73.23(f)(3).................  The words ``or        The paragraph is
                               later'' are added     reworded slightly
                               after ``Federal       for clarification.
                               Information           The phrase
                               Processing Standard   ``safeguards or
                               [FIPS] 140-2.'' The   security event'' is
                               phrase ``respond to   changed to
                               a security event''    ``security
                               is changed to         contingency event''
                               ``respond to a        to emphasize that
                               security              the requirement is
                               contingency           security-related,
                               event.'' The phrase   and to maintain
                               ``Safeguards          consistency with
                               Information'' is      other regulatory
                               changed to            provisions. The
                               ``Safeguards          phrase ``or later''
                               Information           is added to clarify
                               designated as         that encryption
                               Safeguards            technology that
                               Information-          meets future
                               Modified              Federal Information
                               Handling.''           Processing
                                                     Standards will be
                                                     acceptable. The
                                                     phrase ``Safeguards
                                                     Information'' is
                                                     changed to
                                                     ``Safeguards
                                                     Information-
                                                     Modified Handling''
                                                     to better
                                                     distinguish between
                                                     these levels of
                                                     safeguards
                                                     information, which
                                                     require different
                                                     marking, storage,
                                                     and handling
                                                     requirement.
73.23(g)(1).................  The phrase ``Each     The second sentence
                               file containing       is edited to be
                               Safeguards            more concise. The
                               Information'' is      phrase ``Safeguards
                               changed to            Information'' is
                               ``Safeguards          changed to
                               Information           ``Safeguards
                               files.'' The phrase   Information-
                               ``Safeguards          Modified Handling''
                               Information'' is      to better
                               changed to            distinguish between
                               ``Safeguards          these levels of
                               Information           safeguards
                               designated as         information, which
                               Safeguards            require different
                               Information-          marking, storage,
                               Modified              and handling
                               Handling.''           requirements.
73.23(g)(2).................  The phrase ``files    This paragraph is
                               shall be properly     revised in response
                               labeled as `SGI-      to comments that
                               Modified Handling'    the proposed
                               '' is changed to      language was too
                               ``files shall be      prescriptive. The
                               properly labeled to   changes are
                               indicate the          intended to allow
                               presence of           more flexibility in
                               Safeguards            document marking.
                               Information with      The phrase
                               modified handling     ``Safeguards
                               requirements.'' The   Information'' is
                               phrase ``Safeguards   changed to
                               Information'' is      ``Safeguards
                               changed to            Information-
                               ``Safeguards          Modified Handling''
                               Information           to better
                               designated as         distinguish between
                               Safeguards            these levels of
                               Information-          safeguards
                               Modified              information, which
                               Handling.''           require different
                                                     marking, storage,
                                                     and handling
                                                     requirements.
73.23(g)(3).................  The word              The word
                               ``automated'' is      ``automated''
                               deleted. The phrase   unnecessarily
                               ``Safeguards          appeared in the
                               Information'' is      original proposed
                               changed to            rule and is
                               ``Safeguards          deleted. The phrase
                               Information           ``Safeguards
                               designated as         Information'' is
                               Safeguards            changed to
                               Information-          ``Safeguards
                               Modified              Inforation-Modified
                               Handling.''           Handling'' to
                                                     better distinguish
                                                     between these
                                                     levels of
                                                     safeguards
                                                     information, which
                                                     would require
                                                     different marking,
                                                     storage, and
                                                     handling
                                                     requirements.
73.23(h)....................  The word ``must'' in  The word ``must'' is
                               the last sentence     changed to
                               is changed to         ``shall'' to be
                               ``shall.'' The        consistent with
                               phrase ``Safeguards   Sec.   73.22(h).
                               Information'' is      The phrase
                               changed to            ``Safeguards
                               ``Safeguards          Information'' is
                               Information           changed to
                               designated as         ``Safeguards
                               Safeguards            Information-
                               Information-          Modified Handling''
                               Modified              to better
                               Handling.''           distinguish between
                                                     these levels of
                                                     safeguards
                                                     information, which
                                                     require different
                                                     marking, storage,
                                                     and handling
                                                     requirements.
73.23(i)....................  The phrase ``tearing  This paragraph is
                               into small pieces''   revised to
                               is deleted from the   eliminate redundant
                               second sentence.      language and to
                               The third sentence    clarify that
                               is changed from       document
                               ``Piece sizes one     destruction results
                               half inch or          in piece sizes no
                               smaller composed of   wider than one-
                               several pages or      quarter inch,
                               documents and         thoroughly mixed.
                               thoroughly mixed      The phrase
                               would be considered   ``Safeguards
                               completely            Information'' is
                               destroyed'' to        changed to
                               ``Piece sizes no      ``Safeguards
                               wider than one        Information-
                               quarter inch          Modified Handling''
                               composed of several   to better
                               pages or documents    distinguish between
                               and thoroughly        these levels of
                               mixed are             Safeguards
                               considered            Information, which
                               completely            require different
                               destroyed.'' The      marking, storage,
                               phrase ``Safeguards   and handling
                               Information'' is      requirements.
                               changed to
                               ``Safeguards
                               Information
                               designated as
                               Safeguards
                               Information-Modifed
                               Handling.''
73.37(f)(2)(iv).............  This section is       This change conforms
                               revised to read ``A   cross-references in
                               statement that the    part 73 with the
                               information           revised proposed
                               described below in    rule.
                               Sec.   73.37(f)(3)
                               is required by NRC
                               regulations to be
                               protected in
                               accordance with the
                               requirements of
                               Sec.  Sec.   73.21
                               and 73.22.''
73.37(f)(3)(iii)............  This section is       This change conforms
                               revised to read       cross-references in
                               ``For the case of a   part 73 with the
                               single shipment       revised proposed
                               whose schedule is     rule.
                               not related to the
                               schedule of any
                               subsequent
                               shipment, a
                               statement that
                               schedule
                               information must be
                               protected in
                               accordance with the
                               provisions of Sec.
                               Sec.   73.21 and
                               73.22 until at
                               least 10 days after
                               the shipment has
                               entered or
                               originated within
                               the State.''

[[Page 64049]]


73.37(f)(3)(iv).............  This section is       This change conforms
                               revised to read       cross-references in
                               ``For the case of a   part 73 with the
                               shipment in a         revised proposed
                               series of shipments   rule.
                               whose schedules are
                               related, a
                               statement that
                               schedule
                               information must be
                               protected in
                               accordance with the
                               provisions of Sec.
                               Sec.   73.21 and
                               73.22 until 10 days
                               after the last
                               shipment in the
                               series has entered
                               or originated
                               within the State
                               and an estimate of
                               the date on which
                               the last shipment
                               in the series will
                               enter or originate
                               within the State.''
73.37(g)....................  This section is       This change conforms
                               revised to read       cross-references in
                               ``State officials,    part 73 with the
                               State employees,      revised proposed
                               and other             rule.
                               individuals,
                               whether or not
                               licensees of the
                               Commission, who
                               receive schedule
                               information of the
                               kind specified in
                               Sec.   73.37(f)(3)
                               shall protect that
                               information against
                               unauthorized
                               disclosure as
                               specified in Sec.
                               Sec.   73.21 and
                               73.22.''
73.57.......................  The revised proposed  The title of this
                               rule would revise     section would be
                               the title of this     changed to reflect
                               section to read       application of the
                               ``Requirements for    criminal history
                               criminal history      check requirement,
                               checks of             including
                               individuals granted   fingerprinting, to
                               unescorted access     employees of
                               to a nuclear power    entities engaged in
                               facility or access    an activity subject
                               to Safeguards         to regulation by
                               Information.''        the Commission and
                                                     entities who have
                                                     provided written
                                                     notice to the
                                                     Commission of
                                                     intent to file an
                                                     application for
                                                     licensing,
                                                     certification,
                                                     permitting, or
                                                     approval of a
                                                     product subject to
                                                     regulation by the
                                                     Commission. This
                                                     change implements
                                                     the Energy Policy
                                                     Act of 2005.
73.57(a)(1).................  The revised proposed  The original
                               rule adds the         proposed rule has
                               phrase ``or to        been revised to
                               engage in an          implement the
                               activity subject to   Energy Policy Act
                               regulation by the     of 2005's
                               Commission'' to       requirement that
                               existing Sec.         all individuals
                               73.57(a)(1).          with access to
                                                     Safeguards
                                                     Information undergo
                                                     an FBI criminal
                                                     history check,
                                                     including
                                                     fingerprinting.
73.57(a)(2).................  The revised proposed  The original
                               rule adds the         proposed rule has
                               phrase ``to engage    been revised to
                               in an activity        implement the
                               subject to            Energy Policy Act
                               regulation by the     of 2005's
                               Commission, as well   requirement that
                               as each entity who    all individuals
                               has provided          with access to
                               written notice to     Safeguards
                               the Commission of     Information undergo
                               intent to file an     an FBI criminal
                               application for       history check,
                               licensing,            including
                               certification,        fingerprinting.
                               permitting, or
                               approval of a
                               product subject to
                               regulation by the
                               Commission'' to
                               existing Sec.
                               73.57(a)(2).
73.57(b)(2)(i)..............  The revised proposed  The phrase ``or
                               rule deletes the      access to
                               phrase ``or for       Safeguards
                               access to             Information'' was
                               Safeguards            deleted so that
                               Information.'' It     this paragraph
                               adds a reference to   would only address
                               Sec.   73.23.         individuals exempt
                                                     from Sec.
                                                     73.57(b) for
                                                     purposes of
                                                     unescorted access
                                                     to nuclear power
                                                     facilities.
73.57(b)(2)(ii).............  The revised proposed  The list of
                               rule revises the      individuals exempt
                               list of individuals   from the
                               exempt from Sec.      requirements of
                               73.57(b)(1). The      Sec.   73.57(b) for
                               phrase ``Employees    purposes of access
                               of other agencies     to SGI has been
                               of the United         revised to be
                               States Government''   consistent with the
                               is changed to ``An    list of individuals
                               employee of the       exempt from the
                               Commission or the     criminal history
                               Executive Branch of   and background
                               the United States     check requirements
                               Government.'' The     for access to SGI
                               phrase ``the          in Sec.  Sec.
                               Governor of a State   73.22(b)(3) and
                               or his or her         73.23(b)(3).
                               designated employee   Consistent with the
                               representatives''     statement of
                               is changed to ``The   considerations
                               Governor of a State   accompanying Sec.
                               or his or her         73.57 when it was
                               designated State      first promulgated
                               employee              (52 FR 6310; (March
                               representative.''     2, 1987)), the list
                               The revised           of exempt
                               proposed rule adds    individuals
                               ``Representatives     continues to be
                               of the                limited to
                               International         individuals who
                               Atomic Energy         have undergone the
                               Agency (IAEA)         same or similar
                               engaged in            criminal history
                               activities            and background
                               associated with the   checks as a
                               U.S./IAEA             condition of
                               Safeguards            employment or who
                               Agreement who have    have been certified
                               been certified by     by the NRC.
                               the NRC,''
                               ``Federal, State or
                               local law
                               enforcement
                               personnel,''
                               ``State Radiation
                               Control Program
                               Directors and State
                               Homeland Security
                               Advisors or their
                               designated State
                               employee
                               representatives,''
                               and ``Any agent,
                               contractor, or
                               consultant of
                               aforementioned
                               persons who has
                               undergone
                               equivalent criminal
                               history and
                               background checks''
                               to the list of
                               individuals exempt
                               from Sec.
                               73.57(b)(1). The
                               revised proposed
                               rule deletes
                               ``individuals to
                               whom disclosure is
                               ordered pursuant to
                               Sec.   2.709(f)''
                               from the list.

[[Page 64050]]


73.57(e)(3).................  The following         This paragraph makes
                               paragraph has been    clear that an
                               added: ``In           individual
                               addition to the       participating in an
                               right to obtain       NRC adjudication
                               records from the      and seeking access
                               FBI in paragraph      to SGI for use in
                               (e)(1) of this        the adjudication,
                               section and the       may appeal to the
                               right to initiate     presiding officer a
                               challenge             final adverse
                               procedures            determination by
                               inparagraph (e)(2)    the NRC Office of
                               of this section, an   Administration on
                               individual            the individual's
                               participating in an   trustworthiness and
                               NRC adjudication      reliability.
                               and seeking to
                               obtain SGI for use
                               in that
                               adjudication may
                               appeal a final
                               adverse
                               determination by
                               the NRC Office of
                               Administration to
                               the Presiding
                               Officer of the
                               proceeding.
                               Potential
                               witnesses,
                               participants
                               without attorneys,
                               and attorneys for
                               whom the NRC Office
                               of Administration
                               has made a final
                               adverse
                               determination on
                               trustworthiness and
                               reliability may
                               request that the
                               Chairman of the
                               Atomic Safety and
                               Licensing Board
                               Panel designate an
                               officer other than
                               the Presiding
                               Officer of the
                               proceeding to
                               review the adverse
                               determination.''
73.59.......................  The title of this     The changes in the
                               section is changed    title of this
                               to: ``Relief from     section is needed
                               fingerprinting,       because of changes
                               identification and    in the text to
                               criminal history      broaden its scope
                               records checks and    to include relief
                               background checks     from the
                               for designated        requirements for
                               categories of         background checks.
                               individuals.''        The recently
                                                     promulgated Sec.
                                                     73.59 did not
                                                     relieve the
                                                     specified
                                                     categories of
                                                     individuals from
                                                     background checks
                                                     because no
                                                     requirement to
                                                     perform background
                                                     checks prior to
                                                     granting access to
                                                     SGI currently
                                                     existed. Thus, no
                                                     relief was needed.
                                                     Relieving these
                                                     categories of
                                                     individuals from
                                                     the fingerprinting
                                                     requirements while
                                                     at the same time
                                                     subjecting them to
                                                     background checks
                                                     would not be
                                                     consistent with the
                                                     underlying premise
                                                     that these
                                                     categories of
                                                     individuals are
                                                     trustworthy and
                                                     reliable by virtue
                                                     of their
                                                     occupational
                                                     status.
                              In addition, Sec.     Section 73.59(a) is
                               73.59(a) would be     being deleted in
                               deleted in its        its entirety
                               entirety, including   because that
                               the definition of     definition of SGI
                               SGI. The remainder    is captured in 10
                               of the section is     CFR Sec.   73.2.
                               redesignated to       Instead, a cross-
                               comply with Office    reference to the
                               of the Federal        definition of SGI
                               Register              (and SGI-M) in Sec.
                               requirements.           73.2 is made.
                                                     including SGI-M
                                                     within the scope of
                                                     Sec.   73.59 is
                                                     necessary is
                                                     necessary to be
                                                     consistent with the
                                                     structure of the
                                                     rest of the
                                                     proposed SGI rule,
                                                     which refers to
                                                     both SGI and SGI-M.
                              Section 73.59(d) is   Section 73.59(d) is
                               new and adds as a     added because the
                               category of           Commission has
                               individuals: ``The    determined to grant
                               Comptroller General   relief under Sec.
                               or an employee of     73.59 for the
                               the Government        Comptroller General
                               Accountability        or an employee of
                               Office who has        the Government
                               undergone             Accountability
                               fingerprinting for    Office who has
                               a prior U.S.          undergone
                               Government criminal   fingerprinting for
                               history check.''      a prior U.S.
                                                     Government criminal
                                                     history check.
                              Section 73.59(f)      This revision is
                               would be revised to   necessary to
                               refer to both         reflect the change
                               Safeguards            in terminology in
                               Information and       the FRN clarifying
                               Safeguards            that SGI-M is
                               Information           Safeguards
                               designated as         Information.
                               Safeguards
                               Information-
                               Modified Handling
                               (SGI-M).
                              Section 73.59(k) is   New Sec.   73.59(k)
                               also new and would    carries over into
                               exempt ``Any agent,   the new proposed
                               contractor, or        rule the category
                               consultant of the *   of individuals
                               * * persons who       described in former
                               have undergone the    proposed Sec.  Sec.
                               equivalent criminal     73.22(b)(3)(vii)
                               history and           and
                               background checks     73.23(b)(3)(vii).
                               to those required
                               by 10 CFR Sec.
                               Sec.   73.22(b) or
                               73.23(b).''
10 CFR part 73 Appendix I...  A new Appendix I is   In response to
                               added that defines    comments, the
                               the quantities of     Commission has
                               concern described     included a table of
                               in the revised        radionuclides and
                               proposed rule.        quantities that
                                                     establishes the
                                                     ``quantities of
                                                     concern''
                                                     referenced in this
                                                     revised proposed
                                                     rule. The table is
                                                     based on
                                                     International
                                                     Atomic Energy
                                                     Agency
                                                     recommendation in
                                                     its Code of Conduct
                                                     on the Safety and
                                                     Security of
                                                     Radioactive
                                                     Sources, and has
                                                     been used to
                                                     determine the types
                                                     and quantities of
                                                     materials that
                                                     warrant additional
                                                     security
                                                     requirements, some
                                                     of which have
                                                     already been issued
                                                     by order. Other
                                                     protective measures
                                                     are under
                                                     development based
                                                     in part on the
                                                     threshold
                                                     quantities
                                                     established in this
                                                     table.
                              Radium-226 is being   Section 651(e) of
                               added to the          the Energy Policy
                               listing of            Act of 2005 amended
                               radionuclides.        Section 11e. of the
                                                     Atomic Energy Act
                                                     of 1954 to include
                                                     in the definition
                                                     of byproduct
                                                     material ``any
                                                     discrete source of
                                                     radium-226 that is
                                                     produced,
                                                     extracted, or
                                                     converted after
                                                     extraction, before,
                                                     on, or after the
                                                     date of enactment
                                                     of this paragraph
                                                     for use for a
                                                     commercial,
                                                     medical, or
                                                     research
                                                     activity.''

[[Page 64051]]


76.113(c)...................  The phrase ``and      In response to
                               parts 25 and 95 of    public comment,
                               this chapter'' is     this paragraph has
                               added to the end of   been revised. As
                               the first sentence.   revised,
                               The second sentence   Unclassified
                               reads:                Controlled Nuclear
                               ``Information         Information would
                               designated by the     be protected in
                               U.S. Department of    accordance with DOE
                               Energy (DOE) as       requirements.
                               Unclassified
                               Controlled Nuclear
                               Information must be
                               protected in
                               accordance with DOE
                               requirements.
150.15(a)(9)................  A cross-reference to  A cross-reference to
                               Sec.   73.22 and      Sec.   73.22 and
                               the phrase ``as       the words ``as
                               applicable'' are      applicable'' are
                               added.                added for
                                                     completeness.
------------------------------------------------------------------------

D. Request for Specific Comment

    A background check, which would contain as an element, a criminal 
history check (including fingerprinting), is necessary for access to 
SGI, in all circumstances, unless specifically exempt in accordance 
with the concepts in Sec.  73.22(b)(3) and Sec.  73.23(b)(3). Those 
provisions contain cross-reference to Sec.  73.59, which describes 
categories of individuals who are exempt from the criminal history 
check and background check requirements by virtue of their occupational 
status. These exemptions are authorized by section 149(a)(4)(B) of the 
AEA, under which the Commission may, by rule, exempt or relieve 
individuals from the fingerprinting, identification, and criminal 
history check requirements. The exercise of such authority pursuant to 
section 149(a)(4)(B) requires a finding by the Commission that such 
action is consistent with its obligations to promote the common defense 
and security and to protect the health and safety of the public.'' In 
the final rule promulgating Sec.  73.59, the Commission made the 
required finding. The Commission is specifically seeking comment on the 
appropriateness of these revised provisions, as they apply to various 
categories of individuals.

V. Criminal Penalties

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

VI. Agreement State Issues

    The rule proposes changes to parts 2, 30, 40, 50, 52, 60, 63, 70, 
71, 72, 73, 76, and 150 would be considered to be Category NRC 
compatibility and therefore are areas of exclusive NRC authority. 
Nonetheless, the original proposed rule was provided to the Agreement 
States for their review and comment prior to its publication of draft 
rule text on the NRC Web site and the publication of the rule in the 
Federal Register. Agreement States had an opportunity to review the 
revised proposed rule prior to publication.
    The Agreement States of Illinois and Washington commented on the 
original proposed rule prior to publication in the Federal Register. 
Both states expressed concern about the breadth of rule text reflecting 
the Commission's authority to prohibit the unauthorized disclosure of 
SGI relating to such quantities of special nuclear material, source, 
and byproduct material as the Commission determines to be significant 
to the public health and safety or the common defense and security. In 
response to this concern, the Commission notes that it needs such broad 
authority to adequately protect SGI, and Section 147 of the AEA 
provides such authority to the Commission. The Commission has, however, 
modified certain aspects of the revised proposed rule, e.g. the 
definition of SGI, to more closely track the language in Section 147 of 
the AEA.
    An agency of the State of New York commented on the original 
proposed rule and asserted that the Commission lacks the statutory 
authority to impose regulations for the protection of SGI pertaining to 
Agreement State licensees. According to these comments, the term 
``licensee's or ``applicant's'' [detailed information] in Section 147 
cannot be construed as inclusive of State licensees or applicants. As 
explained previously in response to specific comments, the Commission 
does not agree with this commenter's interpretation of Section 147.

VII. Voluntary Consensus Standards

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

VIII. Finding of No Significant Impact: Environmental Assessment

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended, and the Commission's regulations in 
subpart A of 10 CFR part 51, that this revised proposed rule, if 
adopted, would not constitute a major Federal action significantly 
affecting the quality of the human environment and, therefore, an 
environmental impact statement is not required. The basis for this 
determination is that the revised proposed rule relates to the 
designation, handling and protection of SGI and the collection of 
information on which a determination to grant individuals access to 
this information is based. The determination of this environmental 
assessment is that there would be no significant environmental impacts 
from this action.
    The NRC has sent a copy of the environmental assessment and the 
revised proposed rule to every State Liaison Officer and requested 
comments on the environmental assessment. No State provided comments on 
the draft environmental assessment.

IX. Paperwork Reduction Act Statement

    This proposed rule amends information collection requirements that 
are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). This rule has been submitted to the

[[Page 64052]]

Office of Management and Budget for review and approval of the 
information collection requirements.
    Type of submission, new or revision: Revision.
    The title of the information collection: 10 CFR part 73, 
``Protection of Safeguards Information.''
    The form number if applicable: Not applicable.
    How often the collection is required: On occasion. Any person 
(including an individual) or entity who is permitted access to SGI or 
Safeguards Information designated for modified handling (SGI-M) must 
undergo a background check, including fingerprinting, to establish 
trustworthiness and reliability. That determination is valid for a 5-
year period. Licensees must mark and protect SGI or SGI-M information 
from unauthorized disclosure on a continuous basis.
    Who will be required or asked to report: Persons (including 
individuals) or entities who are licensed, certified, or permitted to 
engage in an activity subject to regulation by the Commission, 
including utilization facilities; vendors; individuals who have filed 
an application for a license or certificate to engage in Commission-
regulated activities; and individuals who have notified the Commission 
in writing of an intent to file an application for licensing, 
certification, permitting, or approval of a product or activity subject 
to regulation by the Commission.
    An estimate of the number of annual responses: 485.
    The estimated number of annual respondents: 485.
    An estimate of the total number of hours needed annually to 
complete the requirement or request: 4,741 (9.78 hours per 
recordkeeper).
    Abstract: The NRC is proposing to amend its regulations for the 
protection of Safeguards Information (SGI) and add requirements for 
Safeguards Information for modified handling (SGI-M) to protect SGI and 
SGI-M from inadvertent release and unauthorized disclosure which might 
compromise the security of nuclear facilities and materials. The 
proposed amendments would affect certain licensees, information, and 
materials not currently subject to SGI regulations, but which are 
within the scope of Commission authority under the Atomic Energy Act of 
1954, as amended (AEA). The NRC originally published the proposed rule 
in the Federal Register on February 11, 2005 (70 FR 7196). The NRC is 
again publishing the proposed rule on SGI in order to allow the public 
to comment on changes to the rule text. These changes are in response 
to public comments and amendments to the AEA in the Energy Policy Act 
of 2005 (EPAct) and Commission Orders issued to licensees authorized to 
possess and transfer items containing certain quantities of radioactive 
material.
    The U.S. Nuclear Regulatory Commission is seeking public comment on 
the potential impact of the information collections contained in this 
proposed rule and on the following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility?
    2. Is the estimate of burden accurate?
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the information collection be minimized, 
including the use of automated collection techniques?
    A copy of the OMB clearance package may be viewed free of charge at 
the NRC Public Document Room, One White Flint North, 11555 Rockville 
Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and 
rule are available at the NRC worldwide Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html
 for 60 days after the 

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

    Send comments on any aspect of these proposed information 
collections, including suggestions for reducing the burden and on the 
above issues, by November 30, 2006 to the Records and FOIA/Privacy 
Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, or by Internet electronic mail to 
[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.

X. Regulatory Analysis

    The Commission has prepared a revised regulatory analysis on this 
revised proposed rule. The revised analysis examines the costs and 
benefits of the alternatives considered by the Commission. The revised 
regulatory analysis is available for inspection in the NRC Public 
Document Room, 11555 Rockville Pike, Rockville, MD 20852. The revised 
regulatory analysis is also available electronically via the NRC 
rulemaking Web site at http://ruleforum.llnl.gov. Single copies of the 

revised analysis may be obtained from the Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, at 301-415-1633 or by e-
mail at [email protected]

XI. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the NRC has determined that this rule, if adopted, would not 
have a significant economic impact upon a substantial number of small 
entities. The NRC estimates that the proposed regulation will affect 
approximately 152 NRC licensees, 87 Agreement State licensees, 200 
State contacts, and 29 applicants for licenses. The NRC estimates that 
small businesses as defined by 10 CFR 2.810 comprise less than 1 
percent of the total number of NRC licensees and state contacts 
affected by this regulation. The NRC does not have information on the 
small business status of the Agreement State licensees or applicants 
for NRC and Agreement State licenses affected by this regulation, 
therefore, in its February 11, 2005 original proposed rule and the 
regulatory analysis developed in support of the original proposed rule, 
the NRC requested public comments on the impact of the original 
proposed rule on small businesses. No comments were received. In the 
absence of information on the small business status of the Agreement 
State licensees and applicants for NRC and Agreement State licenses 
affected by this regulation and based on the small proportion of NRC 
licensees that qualify as small entities, the NRC estimates that the 
number of small entities among these licensees is also less than 1 
percent. For a small entity, the implementation burden imposed by the 
regulation is estimated to be 41.8 hours, and the annual burden is 
estimated to be 3.5 hours.
    The potential benefits of preventing disclosure of SGI by 
unauthorized persons would significantly outweigh the economic impact 
on small licensees.

[[Page 64053]]

XII. Backfit Analysis

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

List of Subjects

10 CFR Part 2

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

10 CFR Part 30

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

10 CFR Part 40

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

10 CFR Part 50

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

10 CFR Part 52

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

10 CFR Part 60

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

10 CFR Part 63

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

10 CFR Part 70

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

10 CFR Part 71

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

10 CFR Part 72

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

10 CFR Part 73

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

10 CFR Part 76

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

10 CFR Part 150

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

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

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

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

    Authority: Secs.149, 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231, 2169); sec. 191, as amended, Pub. L. 87-615, 76 
Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 
U.S.C. 5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 
3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 
594 (2005). Section 2.101 also issued under secs. 53, 62, 63, 81, 
103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as 
amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 
114(f), Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 
10143(f)), sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 
U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 
2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 
104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended 
(42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.105 also 
issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). 
Sections 2.200-2.206 also issued under secs. 161 b, i, o, 182, 186, 
234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 
2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 
5846). Section 2.205(j) also issued under Pub. L. 101-410, 104 Stat. 
90, as amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-
373 (28 U.S.C. 2461 note). Sections 2.600-2.606 also issued under 
sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). 
Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 
2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 
2.764 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 
2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under 
sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133), and 5 U.S.C. 
552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. 
Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L. 
85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also 
issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. 
L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued 
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued 
under sec. 184 (42

[[Page 64054]]

U.S.C. 2234) and sec. 189, 68 stat. 955 (42 U.S.C. 2239). Appendix A 
also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 
2135).

    2. In Sec.  2.4, a new definition for Safeguards Information is 
added in alphabetical order to read as follows:


Sec.  2.4  Definitions.

* * * * *
    Safeguards Information means information not classified as National 
Security Information or Restricted Data which specifically identifies a 
licensee's or applicant's detailed control and accounting procedures 
for the physical protection of special nuclear material in quantities 
determined by the Commission through order or regulation to be 
significant to the public health and safety or the common defense and 
security; detailed security measures (including security plans, 
procedures, and equipment) for the physical protection of source, 
byproduct, or special nuclear material in quantities determined by the 
Commission through order or regulation to be significant to the public 
health and safety or the common defense and security; security measures 
for the physical protection and location of certain plant equipment 
vital to the safety of production or utilization facilities; and any 
other information within the scope of Section 147 of the Atomic Energy 
Act of 1954, as amended, the unauthorized disclosure of which, as 
determined by the Commission through order or regulation, could 
reasonably be expected to have a significant adverse effect on the 
health and safety of the public or the common defense and security by 
significantly increasing the likelihood of sabotage or theft or 
diversion of source, byproduct, or special nuclear material.
* * * * *
    3. In Sec.  2.336, paragraph (f) is redesignated as (g), and a new 
paragraph (f) is added to read as follows:


Sec.  2.336  General discovery.

* * * * *
    (f)(1) In the event of a dispute over disclosure of documents and 
records including Safeguards Information referred to in Sections 147 
and 181 of the Atomic Energy Act, as amended, the presiding officer may 
issue an order requiring disclosure if--
    (i) The presiding officer finds that the individual seeking access 
to Safeguards Information to participate in an NRC adjudication has the 
requisite ``need to know'', as defined in Sec.  73.2;
    (ii) The individual has undergone an FBI criminal history check, 
unless exempt under Sec. Sec.  73.22(b)(3) or 73.23(b)(3), as 
applicable, by submitting fingerprints to the NRC Office of 
Administration, Security Processing Unit, Mail Stop T-6E46, U.S. 
Nuclear Regulatory Commission, Washington D.C. 20555-0001, and 
otherwise following the procedures in Sec.  73.57(d) for submitting and 
processing of fingerprints. However, before an adverse determination by 
the NRC Office of Administration on an individual's criminal history 
check, the individual shall be afforded the protections provided by 
Sec.  73.57; and
    (iii) The NRC Office of Administration has found, based upon a 
background check, that the individual is trustworthy and reliable, 
unless exempt under Sec. Sec.  73.22(b)(3) or 73.23(b)(3), as 
applicable. However, before an adverse determination on an individual's 
background check for trustworthiness and reliability, the individual 
shall be afforded the protections provided by Sec.  73.57.
    (iv) Participants, potential witnesses, and attorneys for whom the 
NRC Office of Administration has made a final adverse determination on 
trustworthiness and reliability may request the presiding officer to 
review the adverse determination. The request may also seek to have the 
Chairman of the Atomic Safety and Licensing Board Panel designate an 
officer other than the presiding officer of the proceeding to review 
the adverse determination. For purposes of review, the adverse 
determination must be in writing and set forth the grounds for the 
determination. The request for review shall be served on the NRC staff 
and may include additional information for review by the presiding 
officer. The request must be filed within 15 days after receipt of the 
adverse determination by the person against whom the adverse 
determination has been made. Within 10 days of receipt of the request 
for review and any additional information, the NRC staff will file a 
response indicating whether the request and additional information has 
caused the NRC Office of Administration to reverse its adverse 
determination. The presiding officer may reverse the Office of 
Administration's final adverse determination only if the officer finds, 
based on all the information submitted, that the adverse determination 
constitutes an abuse of discretion. The presiding officer's decision 
must be rendered within 15 days after receipt of the staff filing 
indicating that the request for review and additional information has 
not changed the NRC Office of Administration's adverse determination.
    (2) The presiding officer may include in an order any protective 
terms and conditions (including affidavits of non-disclosure) as may be 
necessary and appropriate to limit the disclosure to parties in the 
proceeding, to interested States and other governmental entities 
participating under Sec.  2.315(c), and to their qualified witnesses 
and counsel.
    (3) When Safeguards Information protected from unauthorized 
disclosure under Section 147 of the Atomic Energy Act, as amended, is 
received and possessed by a participant other than the NRC staff, it 
must also be protected according to the requirements of Sec.  73.21 and 
the requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.
    (4) The presiding officer may also prescribe additional procedures 
to effectively safeguard and prevent disclosure of Safeguards 
Information to unauthorized persons with minimum impairment of the 
procedural rights which would be available if Safeguards Information 
were not involved.
    (5) In addition to any other sanction that may be imposed by the 
presiding officer for violation of an order issued pursuant to this 
paragraph, violation of an order pertaining to the disclosure of 
Safeguards Information protected from disclosure under Section 147 of 
the Atomic Energy Act, as amended, may be subject to a civil penalty 
imposed under Sec.  2.205.
    (6) For the purpose of imposing the criminal penalties contained in 
Section 223 of the Atomic Energy Act, as amended, any order issued 
pursuant to this paragraph with respect to Safeguards Information is 
considered to be an order issued under Section 161b. of the Atomic 
Energy Act.
* * * * *
    4. In Sec.  2.705, paragraph (c)(2) is revised and new paragraphs 
(c)(3) through (7) are added to read as follows:


Sec.  2.705  Discovery-additional methods.

* * * * *
    (c) * * *
    (2) In the case of documents and records including Safeguards 
Information referred to in Sections 147 and 181 of the Atomic Energy 
Act, as amended, the presiding officer may issue an order requiring 
disclosure if--
    (i) The presiding officer finds that the individual seeking access 
to Safeguards Information in order to participate in an NRC proceeding 
has the requisite ``need to know'', as defined in Sec.  73.2;
    (ii) The individual has undergone an FBI criminal history check, 
unless exempt under Sec. Sec.  73.22(b)(3) or 73.23(b)(3), as 
applicable by submitting fingerprints to the NRC Office of 
Administration, Security Processing

[[Page 64055]]

Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, Washington 
DC 20555-0001, and otherwise following the procedures in Sec.  73.57(d) 
for submitting and processing fingerprints. However, before an adverse 
determination on an individual's criminal history check by the NRC 
Office of Administration, the individual shall be afforded the 
protections of Sec.  73.57; and
    (iii) The NRC Office of Administration has found, based upon a 
background check, that the individual is trustworthy and reliable, 
unless exempt under Sec. Sec.  73.22(b)(3) or 73.23(b)(3). However, 
before an adverse determination on an individual's background check for 
trustworthiness and reliability, the individual shall be afforded the 
protections of Sec.  73.57.
    (iv) Participants, potential witnesses, and attorneys for whom the 
NRC Office of Administration has made a final adverse determination on 
trustworthiness and reliability may request the presiding officer to 
review the adverse determination. The request may also seek to have the 
Chairman of the Atomic Safety and Licensing Board Panel designate an 
officer other than the presiding officer of the proceeding to review 
the adverse determination. For purposes of review, the adverse 
determination must be in writing and set forth the grounds for the 
determination. The request for review shall be served on the NRC staff 
and may include additional information for review by the presiding 
officer. The request must be filed within 15 days after receipt of the 
adverse determination by the person against whom the adverse 
determination has been made. Within 10 days of receipt of the request 
for review and any additional information, the NRC staff will file a 
response indicating whether the request and additional information has 
caused the NRC Office of Administration to reverse its adverse 
determination. The presiding officer may reverse the Office of 
Administration's final adverse determination only if the officer finds, 
based on all the information submitted, that the adverse determination 
constitutes an abuse of discretion. The presiding officer's decision 
must be rendered within 15 days after receipt of the staff filing 
indicating that the request for review and additional information has 
not changed the NRC Office of Administration's adverse determination.
    (3) The presiding officer may include in an order any protective 
terms and conditions (including affidavits of non-disclosure) as may be 
necessary and appropriate to limit the disclosure to parties in the 
proceeding, to interested States and other governmental entities 
participating under Sec.  2.315(c), and to their qualified witnesses 
and counsel.
    (4) When Safeguards Information protected from unauthorized 
disclosure under Section 147 of the Atomic Energy Act, as amended, is 
received and possessed by a participant other than the NRC staff, it 
must also be protected according to the requirements of Sec.  73.21 and 
the requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.
    (5) The presiding officer may also prescribe additional procedures 
to effectively safeguard and prevent disclosure of Safeguards 
Information to unauthorized persons with minimum impairment of the 
procedural rights which would be available if Safeguards Information 
were not involved.
    (6) In addition to any other sanction that may be imposed by the 
presiding officer for violation of an order issued pursuant to this 
paragraph, violation of an order pertaining to the disclosure of 
Safeguards Information protected from disclosure under Section 147 of 
the Atomic Energy Act, as amended, may be subject to a civil penalty 
imposed under Sec.  2.205.
    (7) For the purpose of imposing the criminal penalties contained in 
Section 223 of the Atomic Energy Act, as amended, any order issued 
pursuant to this paragraph with respect to Safeguards Information is 
considered to be an order issued under Section 161b. of the Atomic 
Energy Act.
* * * * *
    5. In Sec.  2.709, paragraph (f) is revised to read as follows:


Sec.  2.709  Discovery against NRC staff.

* * * * *
    (f) (1) In the case of requested documents and records (including 
Safeguards Information referred to in Sections 147 and 181 of the 
Atomic Energy Act, as amended) exempt from disclosure under Sec.  
2.390, the presiding officer may issue an order requiring disclosure to 
the Executive Director for Operations or a delegate of the Executive 
Director for Operations, to produce the document or records (or any 
other order issued ordering production of the document or records) if--
    (i) The presiding officer finds that the individual seeking access 
to Safeguards Information to participate in an NRC adjudication has the 
requisite ``need to know'', as defined in Sec.  73.2;
    (ii) The individual has undergone an FBI criminal history check, 
unless exempt under Sec. Sec.  73.22(b)(3) or 73.23(b)(3), by 
submitting fingerprints to the NRC Office of Administration, Security 
Processing Unit, Mail Stop T-6E46, U.S. Nuclear Regulatory Commission, 
Washington DC 20555-0001, and otherwise following the procedures in 
Sec.  73.57(d) for submitting and processing fingerprints. However, 
before an adverse determination by the NRC Office of Administration on 
an individual's criminal history check, the individual shall be 
afforded the protections of Sec.  73.57; and
    (iii) The NRC Office of Administration finds, based on a background 
check, that the individual is trustworthy and reliable, unless exempt 
under Sec. Sec.  73.22(b)(3) or 73.23(b)(3), as applicable. However, 
before an adverse determination by the NRC Office of Administration on 
an individual's background check for trustworthiness and reliability, 
the individual shall be afforded the protections of Sec.  73.57.
    (iv) Participants, potential witnesses, and attorneys for whom the 
NRC Office of Administration has made a final adverse determination on 
trustworthiness and reliability may request the presiding officer to 
review the adverse determination. The request may also seek to have the 
Chairman of the Atomic Safety and Licensing Board Panel designate an 
officer other than the presiding officer of the proceeding to review 
the adverse determination. For purposes of review, the adverse 
determination must be in writing and set forth the grounds for the 
determination. The request for review shall be served on the NRC staff 
and may include additional information for review by the presiding 
officer. The request must be filed within 15 days after receipt of the 
adverse determination by the person against whom the adverse 
determination has been made. Within 10 days of receipt of the request 
for review and any additional information, the NRC staff will file a 
response indicating whether the request and additional information has 
caused the NRC Office of Administration to reverse its adverse 
determination. The presiding officer may reverse the Office of 
Administration's final adverse determination only if the officer finds, 
based on all the information submitted, that the adverse determination 
constitutes an abuse of discretion. The presiding officer's decision 
must be rendered within 15 days after receipt of the staff filing 
indicating that the request for review and additional information has 
not changed the NRC Office of Administration's adverse determination.
    (2) The presiding office may include in an order any protective 
terms and

[[Page 64056]]

conditions (including affidavits of non-disclosure) as may be necessary 
and appropriate to limit the disclosure to parties in the proceeding, 
to interested States and other governmental entities participating 
under Sec.  2.315(c), and to their qualified witnesses and counsel.
    (3) When Safeguards Information protected from disclosure under 
Section 147 of the Atomic Energy Act, as amended, is received and 
possessed by a participant other than the NRC staff, it must also be 
protected according to the requirements of Sec.  73.21 and the 
requirements of Sec.  73.22 or Sec.  73.23 of this chapter, as 
applicable.
    (4) The presiding officer may also prescribe additional procedures 
to effectively safeguard and prevent disclosure of Safeguards 
Information to unauthorized persons with minimum impairment of the 
procedural rights which would be available if Safeguards Information 
were not involved.
    (5) In addition to any other sanction that may be imposed by the 
presiding officer for violation of an order issued pursuant to this 
paragraph, violation of an order pertaining to the disclosure of 
Safeguards Information protected from disclosure under Section 147 of 
the Atomic Energy Act, as amended, may be subject to a civil penalty 
imposed under Sec.  2.205.
    (6) For the purpose of imposing the criminal penalties contained in 
Section 223 of the Atomic Energy Act, as amended, any order issued 
pursuant to this paragraph with respect to Safeguards Information is 
considered to be an order issued under Section 161b. of the Atomic 
Energy Act.
* * * * *
    6. In Sec.  2.1003, paragraph (a)(4)(iii) is revised to read as 
follows:


Sec.  2.1003  Availability of material.

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


Sec.  2.1010  Pre-License application presiding officer.

* * * * *
    (b) * * *
    (6) Whether the material should be disclosed under a protective 
order containing such protective terms and conditions (including 
affidavits of nondisclosure) as may be necessary and appropriate to 
limit the disclosure to potential parties, interested governmental 
participants, and parties in the proceeding, or to their qualified 
witnesses and counsel.
    (i) The Pre-License Application Presiding Officer may issue an 
order requiring disclosure of Safeguards Information if--
    (A) The Pre-License Application Presiding Officer finds that the 
individual seeking access to Safeguards Information in order to 
participate in an NRC adjudication has the requisite ``need to know'', 
as defined in Sec.  73.2;
    (B) The individual has undergone an FBI criminal history check, 
unless exempt under Sec. Sec.  73.22(b)(3) or 73.23(b)(3), as 
applicable by submitting fingerprints to the NRC Office of 
Administration, Security Processing Unit, Mail Stop T-6E46, U.S. 
Nuclear Regulatory Commission, Washington DC 20555-0001, and otherwise 
following the procedures in Sec.  73.57(d) for submitting and 
processing fingerprints. However, before an adverse determination by 
the NRC Office of Administration on an individual's criminal history, 
the individual shall be afforded the protections of Sec.  73.57; and
    (C) A finding by the NRC Office of Administration, based on a 
background check, that the individual is trustworthy and reliable, 
unless exempt under Sec. Sec.  73.22(b)(3) or 73.23(b)(3), as 
applicable. However, before an adverse determination by the NRC Office 
of Administration on an individual's background check for 
trustworthiness and reliability, the individual shall be afforded the 
protections on Sec.  73.57.
    (D) Participants, potential witnesses, and attorneys for whom the 
NRC Office of Administration has made a final adverse determination on 
trustworthiness and reliability may request the presiding officer to 
review the adverse determination. The request may also seek to have the 
Chairman of the Atomic Safety and Licensing Board Panel designate an 
officer other than the presiding officer of the proceeding to review 
the adverse determination. For purposes of review, the adverse 
determination must be in writing and set forth the grounds for the 
determination. The request for review shall be served on the NRC staff 
and may include additional information for review by the presiding 
officer. The request must be filed within 15 days after receipt of the 
adverse determination by the person against whom the adverse 
determination has been made. Within 10 days of receipt of the request 
for review and any additional information, the NRC staff will file a 
response indicating whether the request and additional information has 
caused the NRC Office of Administration to reverse its adverse 
determination. The presiding officer may reverse the Office of 
Administration's final adverse determination only if the officer finds, 
based on all the information submitted, that the adverse determination 
constitutes an abuse of discretion. The presiding officer's decision 
must be rendered within 15 days after receipt of the staff filing 
indicating that the request for review and additional information has 
not changed the NRC Office of Administration's adverse determination.
    (ii) The Pre-License Application Presiding Officer may include in 
an order any protective terms and conditions (including affidavits of 
non-disclosure) as may be necessary and appropriate to limit the 
disclosure to parties in the proceeding, to interested states and other 
governmental entities participating under Sec.  2.315(c), and to their 
qualified witnesses and counsel.
    (iii) When Safeguards Information, protected from disclosure under 
Section 147 of the Atomic Energy Act of 1954, as amended, is received 
and possessed by a potential party, interested government participant, 
or party, other than the NRC staff, it shall also be protected 
according to the requirements of Sec.  73.21 and the requirements of 
Sec. Sec.  73.22 or 73.23 of this chapter, as applicable.
    (iv) The Pre-License Application Presiding Officer may also 
prescribe such additional procedures as will effectively safeguard and 
prevent disclosure of Safeguards Information to unauthorized persons 
with minimum impairment of the procedural rights which would be 
available if Safeguards Information were not involved.
    (v) In addition to any other sanction that may be imposed by the 
Pre-License Application Presiding Officer for violation of an order 
pertaining to the disclosure of Safeguards Information protected from 
disclosure under Section 147 of the Atomic Energy Act of 1954, as 
amended, the entity in violation may be subject to a civil penalty 
imposed pursuant to Sec.  2.205.
    (vi) For the purpose of imposing the criminal penalties contained 
in Section 223 of the Atomic Energy Act of 1954, as amended, any order 
issued pursuant to this paragraph with respect to Safeguards 
Information shall be deemed to be an order issued under Section 161b. 
of the Atomic Energy Act of 1954, as amended.
* * * * *

[[Page 64057]]

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

    8. The authority citation for part 30 is revised to read as 
follows:

    Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 
953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 
U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); 
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 549 (2005). 
Section 30.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42 
U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat. 
954, as amended (42 U.S.C. 2234). Section 30.61 also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

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


Sec.  30.32  Application for specific licenses.

* * * * *
    (j) Each applicant for a license for byproduct material subject to 
the requirements of part 73 of this chapter shall protect Safeguards 
Information against unauthorized disclosure in accordance with the 
requirements in Sec. Sec.  73.21 and 73.23 of this chapter, as 
applicable.
    10. In Sec.  30.34, paragraph (j) is added to read as follows:


Sec.  30.34  Terms and conditions of licenses.

* * * * *
    (j) Each licensee subject to the requirements of part 73 of this 
chapter shall ensure that Safeguards Information is protected against 
unauthorized disclosure in accordance with the requirements in 
Sec. Sec.  73.21 and 73.23 of this chapter, as applicable.

PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL

    11. The authority citation for part 40 is revised to read as 
follows:

    Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, 
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as 
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 
2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy 
Policy Act of 2005, Pub. L. No. 109-59, 119 Stat. 594 (2005). 
Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 
68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 
184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also 
issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

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


Sec.  40.31  Application for specific licenses.

* * * * *
    (m) Each applicant for a license for the possession of source 
material at a facility for the production of uranium hexafluoride shall 
protect Safeguards Information against unauthorized disclosure in 
accordance with the requirements in Sec. Sec.  73.21 and 73.22 of this 
chapter, as applicable. Each applicant for a license for source 
material subject to the requirements of part 73 of this chapter shall 
protect Safeguards Information against unauthorized disclosure in 
accordance with the requirements in Sec.  73.21 and the requirements of 
Sec.  73.22 or Sec.  73.23 of this chapter, as applicable.
    13. In Sec.  40.41, paragraph (h) is added to read as follows:


Sec.  40.41  Terms and conditions of licenses.

* * * * *
    (h) Each licensee subject to the requirements of part 73 of this 
chapter shall ensure that Safeguards Information is protected against 
unauthorized disclosure in accordance with the requirements in Sec.  
73.21 and the requirements of Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable.

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION 
FACILITIES

    14. The authority citation for part 50 is revised to read as 
follows:

    Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); 
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act 
of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005). Section 50.7 also 
issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 
5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, 
as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83 
Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 
also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 
2138).
    Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 
185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and 
Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 
(42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 
204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 
50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 
2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 
U.S.C. 2152). Sections 50.80--50.81 also issued under sec. 184, 68 
Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under 
sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

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


Sec.  50.34  Contents of applications; technical information.

* * * * *
    (e) Each applicant for a license to operate a production or 
utilization facility shall protect Safeguards Information against 
unauthorized disclosure in accordance with the requirements in Sec.  
73.21 and the requirements in Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable.
* * * * *
    16. In Sec.  50.54, paragraph (v) is revised to read as follows:


Sec.  50.54  Conditions of licenses.

* * * * *
    (v) Each licensee subject to the requirements of part 73 of this 
chapter shall ensure that Safeguards Information is protected against 
unauthorized disclosure in accordance with the requirements in Sec.  
73.21 and the requirements in Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable.
* * * * *

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

    17. The authority citation for part 52 is revised to read as 
follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as 
amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 
(2005). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued 
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42 
U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub. 
L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 
150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 
Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 
2282).

    18. In Sec.  52.17, paragraph (d) is added to read as follows:

[[Page 64058]]

Sec.  52.17  Contents of applications.

* * * * *
    (d) Each applicant for an early site permit under this part shall 
protect Safeguards Information against unauthorized disclosure in 
accordance with the requirements in Sec. Sec.  73.21 and 73.22 of this 
chapter, as applicable.
    19. In Sec.  52.47, paragraph (c) is added to read as follows:


Sec.  52.47  Contents of applications.

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


Sec.  52.79  Contents of application; technical information.

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

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

    21. The authority citation for part 60 is revised to read as 
follows:

    Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2228, as amended (42 U.S.C. 10134, 10141), and 
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).

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


Sec.  60.21  Content of application.

* * * * *
    (d) The applicant for a license to receive and possess source, 
special nuclear, and byproduct material at a geologic repository 
operations area sited, constructed, or operated in accordance with the 
Nuclear Waste Policy Act of 1982 shall protect Safeguards Information 
in accordance with the requirements in Sec.  73.21 and the requirements 
in Sec.  73.22 or Sec.  73.23 of this chapter, as applicable, and shall 
protect classified information in accordance with the requirements of 
parts 25 and 95 of this chapter, as applicable.
    23. In Sec.  60.42, paragraph (d) is added to read as follows:


Sec.  60.42  Conditions of license.

* * * * *
    (d) The licensee shall ensure that Safeguards Information is 
protected against unauthorized disclosure in accordance with the 
requirements in Sec.  73.21 and the requirements in Sec.  73.22 or 
Sec.  73.23 of this chapter, as applicable. The licensee shall ensure 
that classified information is protected in accordance with the 
requirements of parts 25 and 95 of this chapter, as applicable.

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

    24. The authority citation for part 63 is revised to read as 
follows:

    Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2238, as amended (42 U.S.C. 10134, 10141), and 
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005).

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


Sec.  63.21  Content of application.

* * * * *
    (d) The applicant for a license to receive and possess source, 
special nuclear, and byproduct material at a geologic repository at 
Yucca Mountain, Nevada, shall protect Safeguards Information in 
accordance with the requirements in Sec.  73.21, and the requirements 
in Sec.  73.22, or Sec.  73.23 of this chapter, as applicable, and 
shall protect classified information in accordance with the 
requirements of parts 25 and 95 of this chapter, as applicable.
    26. In Sec.  63.42, paragraph (e) is added to read as follows:


Sec.  63.42  Conditions of license.

* * * * *
    (e) The licensee shall ensure that Safeguards Information is 
protected against unauthorized disclosure in accordance with the 
requirements in Sec.  73.21, and the requirements in Sec.  73.22, or 
Sec.  73.23 of this chapter, as applicable, and shall protect 
classified information in accordance with the requirements of parts 25 
and 95 of this chapter, as applicable.

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

    27. The authority citation for part 70 is revised to read as 
follows:

    Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, (42 U.S.C. 
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended, 
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended 
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec. 
1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 
2005, Pub. L. No. 109-58, 119 Stat. 594 (2005). Sections 70.1(c) and 
70.20a(b) also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 
2232, 2241 (42 U.S.C. 10155, 10161).
    Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122, 
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec. 
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42 
U.S.C. 2234). Section 70.81 also issued under secs. 186, 187, 68 
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.82 also issued under 
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

    28. In Sec.  70.22, paragraph (l) is revised to read as follows:


Sec.  70.22  Contents of applications.

* * * * *
    (l) Each applicant for a license shall protect Safeguards 
Information against unauthorized disclosure in accordance with the 
requirements in Sec.  73.21 and the requirements of Sec.  73.22, or 
73.23 of this chapter, as applicable, and shall protect classified 
information in accordance with the requirements of parts 25 and 95 of 
this chapter, as applicable.
* * * * *
    29. In Sec.  70.32, paragraph (j) is revised to read as follows:


Sec.  70.32  Conditions of licenses.

* * * * *
    (j) Each licensee who possesses special nuclear material, or who 
transports, or delivers to a carrier for transport, a formula quantity 
of strategic special nuclear material, special nuclear material of 
moderate strategic significance, or special nuclear material of low 
strategic significance, or more than 100 grams of irradiated reactor 
fuel shall ensure that Safeguards Information is protected against 
unauthorized disclosure in accordance with the requirements in Sec.  
73.21 and the requirements of Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable, and shall protect classified information in 
accordance

[[Page 64059]]

with the requirements of parts 25 and 95 of this chapter, as 
applicable.
* * * * *

PART 71--PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL

    30. The authority citation for part 71 is revised to read as 
follows:

    Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat. 
930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 
2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242, 
as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 
No. 109-58, 119 Stat. 594 (2005). Section 71.97 also issued under 
sec. 301, Pub. L. 96-295, 94 Stat. 789-790.

    31. Section 71.11 is added to read as follows:


Sec.  71.11  Protection of Safeguards Information.

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

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

    32. The authority citation for part 72 is revised to read as 
follows:

    Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 
184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 
954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 
2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 
688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); 
Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-
486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 
137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, 
Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 
10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 
3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 
549 (2005).
    Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), 
Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 
10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 
955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 
U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. 
L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also 
issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-
425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101, 
10137(a), 10161(h)). Subparts K and L are also issued under sec. 
133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 
(42 U.S.C. 10198).

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


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

* * * * *
    (f) Each applicant for a license under this part to receive, 
transfer, and possess power reactor spent fuel, power reactor-related 
Greater than Class C (GTCC) waste, and other radioactive materials 
associated with spent fuel storage in an independent spent fuel storage 
installation (ISFSI) shall protect Safeguards Information against 
unauthorized disclosure in accordance with the requirements in Sec.  
73.21 and the requirements of Sec.  73.22 or Sec.  73.23, as 
applicable.
    34. In Sec.  72.44, paragraph (h) is added to read as follows:


Sec.  72.44  License conditions.

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


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

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


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

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

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

    37. The authority citation for part 73 is revised to read as 
follows:

    Authority: Secs. 53, 161, 149, 68 Stat. 930, 948, as amended, 
sec. 147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2169, 2201); sec. 201, 
as amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 
Stat. 2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 
Stat. 2750 (44 U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. 
No. 109-58, 119 Stat. 594 (2005).
    Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also 
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100 
Stat. 876 (42 U.S.C. 2169).

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


Sec.  73.1  Purpose and scope.

* * * * *
    (b) * * *
    (7) This part prescribes requirements for the protection of 
Safeguards Information (including the designation or marking: 
Safeguards Information--Modified Handling) in the hands of any person, 
whether or not a licensee of the Commission, who produces, receives, or 
acquires that information.
* * * * *
    39. In Sec.  73.2, new definitions Background Check, Individual 
Authorized Access to Safeguards Information, Individual Authorized 
Access to Safeguards Information--Modified Handling, Quantities of 
Concern, Safeguards Information--Modified Handling, and Trustworthiness 
and Reliability, are added in alphabetical order and the definitions of 
Safeguards Information and ``Need to Know'' are revised to read as 
follows:


Sec.  73.2  Definitions.

* * * * *
    Background check includes, at a minimum, a criminal history check, 
verification of identity, employment history, education, and personal 
references. Individuals engaged in activities subject to regulation by 
the

[[Page 64060]]

Commission, applicants for licenses to engage in Commission-regulated 
activities, and individuals who have notified the Commission in writing 
of an intent to file an application for licensing, certification, 
permitting, or approval of a product or activity subject to regulation 
by the Commission are required under Sec.  73.57 to conduct criminal 
history checks before granting access to Safeguards Information. A 
background check must be sufficient to support the trustworthiness and 
reliability determination so that the person performing the check and 
the Commission have assurance that granting individuals access to 
Safeguards Information does not constitute an unreasonable risk to the 
public health and safety or the common defense and security.
* * * * *
    Individual Authorized Access to Safeguards Information is an 
individual authorized to have access to and handle such information 
pursuant to the requirements of Sec. Sec.  73.21 and 73.22.
    Individual Authorized Access to Safeguards Information--Modified 
Handling is an individual authorized to have access to and handle such 
information pursuant to the requirements of Sec. Sec.  73.21 and 73.23 
of this chapter.
* * * * *
    ``Need to Know'' means a determination by a person having 
responsibility for protecting Safeguards Information that a proposed 
recipient's access to Safeguards Information is necessary in the 
performance of official, contractual, licensee, applicant, or 
certificate holder employment. In an adjudication, ``need to know'' 
means a determination by the originator of the information that the 
information is necessary to enable the proposed recipient to proffer 
and/or adjudicate a specific contention in that proceeding, and the 
proposed recipient of the specific Safeguards Information possesses 
demonstrable knowledge, skill, training, or education to effectively 
utilize the specific Safeguards Information in the proceeding. Where 
the information is in the possession of the originator and the NRC 
staff (dual possession), whether in its original form or incorporated 
into another document by the recipient, the NRC staff makes the 
determination. In the event of a dispute regarding the ``need to know'' 
determination, the presiding officer of the proceeding shall make the 
``need to know'' determination.
* * * * *
    Quantities of Concern means the quantities of the radionuclides 
meeting or exceeding the threshold limits set forth in Table I-1 of 
Appendix I of this part.
* * * * *
    Safeguards Information means information not classified as National 
Security Information or Restricted Data which specifically identifies a 
licensee's or applicant's detailed control and accounting procedures 
for the physical protection of special nuclear material in quantities 
determined by the Commission through order or regulation to be 
significant to the public health and safety or the common defense and 
security; detailed security measures (including security plans, 
procedures, and equipment) for the physical protection of source, 
byproduct, or special nuclear material in quantities determined by the 
Commission through order or regulation to be significant to the public 
health and safety or the common defense and security; security measures 
for the physical protection of and location of certain plant equipment 
vital to the safety of production or utilization facilities; and any 
other information within the scope of Section 147 of the Atomic Energy 
Act of 1954, as amended, the unauthorized disclosure of which, as 
determined by the Commission through order or regulation, could 
reasonably be expected to have a significant adverse effect on the 
health and safety of the public or the common defense and security by 
significantly increasing the likelihood of sabotage or theft or 
diversion of source, byproduct, or special nuclear material.
    Safeguards Information--Modified Handling is the designation or 
marking applied to Safeguards Information which the Commission has 
determined requires handling requirements modified from the specific 
Safeguards Information handling requirements.
* * * * *
    Trustworthiness and reliability are characteristics of an 
individual considered dependable in judgment, character, and 
performance, such that disclosure of Safeguards Information to that 
individual does not constitute an unreasonable risk to the public 
health and safety or common defense and security. A determination of 
trustworthiness and reliability is based upon a background check.
* * * * *
    40. Section 73.8(b) is revised to read as follows:


Sec.  73.8  Information collection requirements: OMB approval.

* * * * *
    (b) The approved information collection requirements contained in 
this part appear in Sec. Sec.  73.5, 73.20, 73.21, 73.22, 73.23, 73.24, 
73.25, 73.26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 73.56, 
73.57, 73.60, 73.67, 73.70, 73.71, 73.72, 73.73, 73.74, and appendices 
B, C, and G.
    41. Section 73.21 is revised to read as follows:


Sec.  73.21  Protection of Safeguards Information: Performance 
Requirements.

    (a) General performance requirement. (1) Each licensee, applicant, 
or other person who produces, receives, or acquires Safeguards 
Information shall ensure that it is protected against unauthorized 
disclosure. To meet this general performance requirement, such 
licensees, applicants, or other persons subject to this section shall:
    (i) Establish, implement, and maintain an information protection 
system that includes the applicable measures for Safeguards Information 
specified in Sec.  73.22 related to: Power reactors; a formula quantity 
of strategic special nuclear material; transportation of or delivery to 
a carrier for transportation of a formula quantity of strategic special 
nuclear material or more than 100 grams of irradiated reactor fuel; 
uranium hexafluoride production facilities; fuel fabrication 
facilities; uranium enrichment facilities; independent spent fuel 
storage installations; and geologic repository operations areas.
    (ii) Establish, implement, and maintain an information protection 
system that includes the applicable measures for Safeguards Information 
specified in Sec.  73.23 related to: Panoramic and underwater 
irradiators that possess greater than 370 TBq (10,000 Ci) of byproduct 
material in the form of sealed sources; manufacturers and distributors 
of items containing source, byproduct, or special nuclear material in 
greater than or equal to Category 2 quantities of concern; research and 
test reactors that possess special nuclear material of moderate 
strategic significance or special nuclear material of low strategic 
significance; and transportation of greater than or equal to Category 2 
quantities of concern.
    (2) Information protection procedures employed by Federal, State, 
and local law enforcement agencies are presumed to meet the general 
performance requirement in Sec.  73.21(a)(1).
    (b) Commission Authority. (1) Pursuant to Section 147 of the Atomic 
Energy Act of 1954, as amended, the

[[Page 64061]]

Commission may impose, by order or regulation, Safeguards Information 
protection requirements different from or in addition to those 
specified in this part on any person who produces, receives, or 
acquires Safeguards Information.
    (2) The Commission may require, by regulation or order, that 
information within the scope of Section 147 of the Atomic Energy Act of 
1954, as amended, related to facilities or materials not specifically 
described in Sec. Sec.  73.21, 73.22 or 73.23 be protected under this 
part.
    42. Section 73.22 is added to read as follows:


Sec.  73.22  Protection of Safeguards Information: Specific 
Requirements.

    This section contains specific requirements for the protection of 
Safeguards Information related to power reactors; a formula quantity of 
strategic special nuclear material; transportation of or delivery to a 
carrier for transportation of a formula quantity of strategic special 
nuclear material or more than 100 grams of irradiated reactor fuel; 
uranium hexafluoride production facilities, fuel fabrication 
facilities, and uranium enrichment facilities; independent spent fuel 
storage installations; and geologic repository operations areas.
    (a) Information to be protected. The types of information and 
documents that must be protected as Safeguards Information include non-
public security-related requirements such as:
    (1) Physical Protection. Information not classified as Restricted 
Data or National Security Information related to physical protection, 
including:
    (i) The composite physical security plan for the facility or site;
    (ii) Site specific drawings, diagrams, sketches, or maps that 
substantially represent the final design features of the physical 
security system not easily discernible by members of the public;
    (iii) Alarm system layouts showing the location of intrusion 
detection devices, alarm assessment equipment, alarm system wiring, 
emergency power sources for security equipment, and duress alarms not 
easily discernible by members of the public;
    (iv) Physical security orders and procedures issued by the licensee 
for members of the security organization detailing duress codes, patrol 
routes and schedules, or responses to security contingency events;
    (v) Site-specific design features of plant security communications 
systems;
    (vi) Lock combinations, mechanical key design, or passwords 
integral to the physical security system;
    (vii) Documents and other matter that contain lists or locations of 
certain safety-related equipment explicitly identified in the documents 
as vital for purposes of physical protection, as contained in security 
plans, contingency measures, or plant specific safeguards analyses;
    (viii) The composite safeguards contingency plan/measures for the 
facility or site;
    (ix) The composite facility guard qualification and training plan/
measures disclosing features of the physical security system or 
response procedures;
    (x) Information relating to on-site or off-site response forces, 
including size, armament of response forces, and arrival times of such 
forces committed to respond to security contingency events;
    (xi) The Adversary Characteristics Document or other implementing 
guidance associated with the Design Basis Threat in Sec.  73.1; and
    (xii) Engineering and safety analyses, security-related procedures 
or scenarios, and other information revealing site-specific details of 
the facility or materials if the unauthorized disclosure of such 
analyses, procedures, scenarios, or other information could reasonably 
be expected to have a significant adverse effect on the health and 
safety of the public or the common defense and security by 
significantly increasing the likelihood of theft, diversion, or 
sabotage of source, byproduct, or special nuclear material.
    (2) Physical protection in transit. Information not classified as 
Restricted Data or National Security Information related to the 
transportation of, or delivery to a carrier for transportation of a 
formula quantity of strategic special nuclear material or more than 100 
grams of irradiated reactor fuel, including:
    (i) The composite physical security plan for transportation;
    (ii) Schedules and itineraries for specific shipments of source 
material, byproduct material, high-level nuclear waste, or irradiated 
reactor fuel. Schedules for shipments of source material, byproduct 
material, high-level nuclear waste, or irradiated reactor fuel are no 
longer controlled as Safeguards Information 10 days after the last 
shipment of a current series;
    (iii) Vehicle immobilization features, intrusion alarm devices, and 
communications systems;
    (iv) Arrangements with and capabilities of local police response 
forces, and locations of safe havens;
    (v) Limitations of communications during transport;
    (vi) Procedures for response to security contingency events;
    (vii) Information concerning the tactics and capabilities required 
to defend against attempted sabotage, or theft and diversion of formula 
quantities of special nuclear material, irradiated reactor fuel, or 
related information; and
    (viii) Engineering or safety analyses, security-related procedures 
or scenarios and other information related to the protection of the 
transported material if the unauthorized disclosure of such analyses, 
procedures, scenarios, or other information could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of theft, diversion, or sabotage of source, 
byproduct, or special nuclear material.
    (3) Inspections, audits and evaluations. Information not classified 
as National Security Information or Restricted Data pertaining to 
safeguards and security inspections and reports, including:
    (i) Portions of inspection reports, evaluations, audits, or 
investigations that contain details of a licensee's or applicant's 
physical security system or that disclose uncorrected defects, 
weaknesses, or vulnerabilities in the system. Disclosure of corrected 
defects, weaknesses, or vulnerabilities is subject to an assessment 
taking into account such factors as trending analyses and the impacts 
of disclosure on licensees having similar physical security systems; 
and
    (ii) Reports of investigations containing general information may 
be released after corrective actions have been completed, unless 
withheld pursuant to other authorities, e.g., the Freedom of 
Information Act (5 U.S.C. 552).
    (4) Correspondence. Portions of correspondence insofar as they 
contain Safeguards Information as set forth in paragraphs (a)(1) 
through (a)(3) of this section.
    (5) Other information within the scope of Section 147 of the Atomic 
Energy Act of 1954, as amended, that the Commission determines by order 
or regulation could reasonably be expected to have a significant 
adverse effect on the health and safety of the public or the common 
defense and security by significantly increasing the likelihood of 
theft, diversion, or sabotage of source, byproduct, or special nuclear 
material or a facility.
    (b) Conditions for access.
    (1) Except as the Commission may otherwise authorize, no person may 
have access to Safeguards Information unless the person has an 
established ``need to know'' for the information and has undergone a 
Federal Bureau of

[[Page 64062]]

Investigation criminal history check using the procedures set forth in 
Sec.  73.57.
    (2) In addition, a person to be granted access to SGI must be 
trustworthy and reliable, based on a background check or other means 
approved by the Commission.
    (3) The categories of individuals specified in 10 CFR 73.59 are 
exempt from the criminal history and background check requirements in 
paragraphs (b)(1) and (b)(2) of this section by virtue of their 
occupational status:
    (4) For persons participating in an NRC adjudicatory proceeding 
other than those specified in Sec.  73.59, the ``need to know'' 
determination shall be made by the originator of the Safeguards 
Information upon receipt of a request for access to the Safeguards 
Information. Where the information is in the possession of the 
originator and the NRC staff, whether in its original form or 
incorporated into another document by the recipient, the NRC staff 
shall make the determination. In the event of a dispute regarding the 
``need to know'' determination, the presiding officer of the proceeding 
shall determine whether the ``need to know'' findings in Sec.  73.2 can 
be made.
    (5) Except as the Commission may otherwise authorize, no person may 
disclose Safeguards Information to any other person except as set forth 
in this section.
    (c) Protection while in use or storage.
    (1) While in use, matter containing Safeguards Information must be 
under the control of an individual authorized access to Safeguards 
Information. This requirement is satisfied if the Safeguards 
Information is attended by such an individual even though the 
information is in fact not constantly being used. Safeguards 
Information within alarm stations, or rooms continuously occupied by 
authorized individuals need not be stored in a locked security storage 
container.
    (2) While unattended, Safeguards Information must be stored in a 
locked security storage container. The container shall not identify the 
contents of the matter contained and must preclude access by 
individuals not authorized access in accordance with the provisions of 
this section. Knowledge of lock combinations protecting Safeguards 
Information must be limited to a minimum number of personnel for 
operating purposes who have a ``need to know'' and are otherwise 
authorized access to Safeguards Information in accordance with the 
provisions of this part. Access to lock combinations must be strictly 
controlled so as to prevent disclosure to an individual not authorized 
access to Safeguards Information.
    (d) Preparation and marking of documents or other matter.
    (1) Each document or other matter that contains Safeguards 
Information as described in Sec.  73.21(a)(1)(i) and this section must 
be marked to indicate the presence of such information in a conspicuous 
manner on the top and bottom of each page. The first page of the 
document must also contain:
    (i) The name, title, and organization of the individual authorized 
to make a Safeguards Information determination, and who has determined 
that the document contains Safeguards Information;
    (ii) The date the determination was made; and
    (iii) An indication that unauthorized disclosure will be subject to 
civil and criminal sanctions.
    (2) In addition to the markings at the top and bottom of each page, 
any transmittal letters or memoranda to or from the NRC which do not in 
themselves contain Safeguards Information shall be marked to indicate 
that attachments or enclosures contain Safeguards Information but that 
the transmittal document does not (i.e., ``When separated from 
Safeguards Information enclosure(s), this document is decontrolled'').
    (3) Any transmittal document forwarding Safeguards Information must 
alert the recipient that protected information is enclosed. 
Certification that a document or other media contains Safeguards 
Information must include the name and title of the certifying official 
and date designated. Portion marking is required only for 
correspondence to and from the NRC (i.e., cover letters, but not 
attachments) that contains Safeguards Information. The portion marking 
must be sufficient to allow the recipient to identify and distinguish 
those sections of the transmittal document or other information 
containing the Safeguards Information from non-Safeguards Information.
    (4) Marking of documents containing or transmitting Safeguards 
Information shall, at a minimum include the words ``Safeguards 
Information'' to ensure identification of protected information for the 
protection of facilities and material covered by Sec.  73.22.
    (e) Reproduction of matter containing Safeguards Information. 
Safeguards Information may be reproduced to the minimum extent 
necessary consistent with need without permission of the originator. 
Equipment used to reproduce Safeguards Information must be evaluated to 
ensure that unauthorized individuals cannot access Safeguards 
Information (e.g., unauthorized individuals cannot access SGI by 
gaining access to retained memory or network connectivity).
    (f) External transmission of documents and material.
    (1) Documents or other matter containing Safeguards Information, 
when transmitted outside an authorized place of use or storage, must be 
packaged in two sealed envelopes or wrappers to preclude disclosure of 
the presence of protected information. The inner envelope or wrapper 
must contain the name and address of the intended recipient and be 
marked on both sides, top and bottom, with the words ``Safeguards 
Information.'' The outer envelope or wrapper must be opaque, addressed 
to the intended recipient, must contain the address of the sender, and 
may not bear any markings or indication that the document contains 
Safeguards Information.
    (2) Safeguards Information may be transported by any commercial 
delivery company that provides service with computer tracking features, 
U.S. first class, registered, express, or certified mail, or by any 
individual authorized access pursuant to these requirements.
    (3) Except under emergency or extraordinary conditions, Safeguards 
Information shall be transmitted outside an authorized place of use or 
storage only by (a) NRC approved secure electronic devices, such as 
facsimiles or telephone devices, provided that transmitters and 
receivers implement processes that will provide high assurance that 
Safeguards Information is protected before and after the transmission 
or (b) electronic mail through the internet, provided that (i) the 
information is encrypted by the NRC-approved encryption modules and 
algorithms; (ii) the information is produced by a self contained secure 
automatic data process system; and (iii) transmitters and receivers 
implement the information handling processes that will provide high 
assurance that Safeguards Information is protected before and after 
transmission. Physical security events required to be reported pursuant 
to Sec.  73.71 are considered to be extraordinary conditions.
    (g) Processing of Safeguards Information on electronic systems.
    (1) Safeguards Information may be stored, processed or produced on 
a stand-alone computer (or computer system) for processing of 
Safeguards Information. ``Stand-alone'' means a computer or computer 
system to which access is limited to individuals authorized access to 
Safeguards Information. A stand-alone computer or

[[Page 64063]]

computer system shall not be physically or in any other way connected 
to a network accessible by users who are not authorized access to 
Safeguards Information.
    (2) Each computer not located within an approved and lockable 
security storage container that is used to process Safeguards 
Information must have a removable storage medium with a bootable 
operating system. The bootable operating system must be used to load 
and initialize the computer. The removable storage medium must also 
contain the software application programs, and all data must be 
processed and saved on the same removable storage medium. The removable 
storage medium must be secured in a locked security storage container 
when not in use.
    (3) A mobile device (such as a laptop computer) may also be used 
for the processing of Safeguards Information provided the device is 
secured in a locked security storage container when not in use. Other 
systems may be used if approved for security by the appropriate NRC 
office.
    (h) Removal from Safeguards Information category. Documents 
originally containing Safeguards Information must be removed from the 
Safeguards Information category at such time as the information no 
longer meets the criteria contained in this part. A review of such 
documents to make that determination shall be conducted every 10 years. 
Documents that are 10 years or older and designated as SGI or SGI-M 
shall be reviewed for a decontrol determination if they are currently 
in use or removed from storage. Care must be exercised to ensure that 
any document decontrolled not disclose Safeguards Information in some 
other form or be combined with other unprotected information to 
disclose Safeguards Information. The authority to determine that a 
document may be decontrolled shall be exercised only by the NRC or with 
NRC approval, or if possible, in consultation with the individual or 
organization that made the original determination.
    (i) Destruction of matter containing Safeguards Information. 
Documents or other media containing Safeguards Information shall be 
destroyed when no longer needed. The information can be destroyed by 
burning, shredding or any other method that precludes reconstruction by 
means available to the public at large. Piece sizes no wider than one 
quarter inch composed of several pages or documents and thoroughly 
mixed are considered completely destroyed.
    43. Section 73.23 is added to read as follows:


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

    This section contains specific requirements for the protection of 
Safeguards Information related to panoramic and underwater irradiators 
that possess greater than 370 TBq (10,000 Ci) of byproduct material in 
the form of sealed sources; manufacturers and distributors of items 
containing source, byproduct, or special nuclear material in greater 
than or equal to Category 2 quantities of concern; transportation of 
more than 1,000 Tbq (27,000 Ci) but less than or equal to 100 grams of 
spent nuclear fuel; research and test reactors that possess special 
nuclear material of moderate strategic significance or special nuclear 
material of low strategic significance; and transportation of greater 
than or equal to Category 2 quantities of concern. The requirements of 
this section distinguish Safeguards Information requiring modified 
handling requirements (SGI-M) from Safeguards Information for 
facilities and materials needing a higher level of protection, as set 
forth in Sec.  73.22.
    (a) Information to be protected. The types of information and 
documents that must be protected as Safeguards Information-Modified 
Handling include non-public security-related requirements such as 
protective measures, interim compensatory measures, additional security 
measures, and the following, as applicable:
    (1) Physical Protection. Information not classified as Restricted 
Data or National Security Information related to physical protection, 
including:
    (i) The composite physical security plan for the facility or site;
    (ii) Site specific drawings, diagrams, sketches, or maps that 
substantially represent the final design features of the physical 
security system not easily discernible by members of the public;
    (iii) Alarm system layouts showing the location of intrusion 
detection devices, alarm assessment equipment, alarm system wiring, 
emergency power sources for security equipment, and duress alarms not 
easily discernible by members of the public;
    (iv) Physical security orders and procedures issued by the licensee 
for members of the security organization detailing duress codes, patrol 
routes and schedules, or responses to security contingency events;
    (v) Site specific design features of plant security communications 
systems;
    (vi) Lock combinations, mechanical key design, or passwords 
integral to the physical security system;
    (vii) The composite facility guard qualification and training plan/
measures disclosing features of the physical security system or 
response procedures;
    (viii) Descriptions of security activities which disclose features 
of the physical security system or response measures;
    (ix) Information relating to onsite or offsite response forces, 
including size, armament of the response forces, and arrival times of 
such forces committed to respond to security contingency events; and
    (x) Engineering and safety analyses, security-related procedures or 
scenarios, and other information revealing site-specific details of the 
facility or materials if the unauthorized disclosure of such analyses, 
procedures, scenarios, or other information could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of theft, diversion, or sabotage of source, 
byproduct, or special nuclear material.
    (2) Physical protection in transit. Information not classified as 
Restricted Data or National Security Information related to the 
physical protection of shipments of more than 1000 Tbq (27,000 Ci) but 
less than or equal to 100 grams of spent nuclear fuel, source material 
and byproduct material in Category 2 quantities of concern, and special 
nuclear material in less than a formula quantity (except for those 
materials covered under Sec.  73.22), including:
    (i) Information regarding transportation security measures, 
including physical security plans and procedures, immobilization 
devices, and escort requirements, more detailed than NRC regulations;
    (ii) Scheduling and itinerary information for shipments (scheduling 
and itinerary information for shipments that are inherently self-
disclosing, such as a shipment that created extensive news coverage or 
an announcement by a public official confirming receipt, may be 
decontrolled after shipment departure. Scheduling and itinerary 
information for shipments that are not inherently self-disclosing may 
be decontrolled 2 days after the shipment is completed. Scheduling and 
itinerary information used for the purpose of preplanning, 
coordination, and advance notification may be shared with others on a 
``need to know'' basis and need not

[[Page 64064]]

be designated as Safeguards Information-Modified Handling);
    (iii) Arrangements with and capabilities of local police response 
forces, and locations of safe havens;
    (iv) Details of alarm and communication systems, communication 
procedures, and duress codes;
    (v) Procedures for response to security contingency events; and
    (vi) Engineering or safety analyses, security-related procedures or 
scenarios and other information related to the protection of the 
transported material if the unauthorized disclosure of such analyses, 
procedures, scenarios, or other information could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of theft, diversion, or sabotage of source, 
byproduct, or special nuclear material.
    (3) Inspections, audits and evaluations. Information not classified 
as National Security Information or Restricted Data pertaining to 
safeguards and security inspections and reports, including:
    (i) Portions of inspection reports, evaluations, audits, or 
investigations that contain details of a licensee's or applicant's 
physical security system or that disclose uncorrected defects, 
weaknesses, or vulnerabilities in the system. Disclosure of corrected 
defects, weaknesses, or vulnerabilities is subject to an assessment 
taking into account such factors as trending analyses and the impacts 
of disclosure on licensees having similar physical security systems; 
and
    (ii) Reports of investigations containing general information may 
be released after the corrective actions have been completed, unless 
withheld pursuant to other authorities, e.g., the Freedom of 
Information Act (5 U.S.C. 552).
    (4) Correspondence. Portions of correspondence insofar as they 
contain Safeguards Information designated as Safeguards Information-
Modifed Handling, as set forth in paragraphs (a)(1) through (a)(3) of 
this section.
    (5) Other information within the scope of Section 147 of the Atomic 
Energy Act of 1954, as amended, that the Commission determines by order 
or regulation could reasonably be expected to have a significant 
adverse effect on the health and safety of the public or the common 
defense and security by significantly increasing the likelihood of 
theft, diversion, or sabotage of source, byproduct, or special nuclear 
material or a facility.
    (b) Conditions for access,
    (1) Except as the Commission may otherwise authorize, no person may 
have access to Safeguards Information designated as Safeguards 
Information-Modified Handling unless the person has an established 
``need to know'' for the information and has undergone a Federal Bureau 
of Investigation criminal history check using the procedures set forth 
in Sec.  73.57.
    (2) In addition, a person to be granted access to SGI must be 
trustworthy and reliable, based on a background check or other means 
approved by the Commission.
    (3) The categories of individuals specified in 10 CFR Sec.  73.59 
are exempt from the background check requirements in paragraphs (b)(1) 
and (b)(2) of this section by virtue of their occupational status:
    (4) For persons participating in an NRC adjudicatory proceeding 
other than those specified in Sec.  73.59, the ``need to know'' 
determination shall be made by the originator of the Safeguards 
Information upon receipt of a request for access to the Safeguards 
Information. Where the information is in the possession of the 
originator and the NRC staff, whether in its original form or 
incorporated into another document by the recipient, the NRC staff 
shall make the determination. In the event of a dispute regarding the 
``need to know'' determination, the presiding officer of the proceeding 
shall determine whether the ``'need to know''' findings in Sec.  73.2 
can be made.
    (5) Except as the Commission may otherwise authorize, no person may 
disclose Safeguards Information to any other person except as set forth 
in this section.
    (c) Protection while in use or storage.
    (1) While in use, matter containing Safeguards Information 
designated as Safeguards Information-Modified Handling must be under 
the control of an individual authorized access to such information. 
This requirement is satisfied if the Safeguards Information designated 
as Safeguards Information-Modified Handling is attended by such an 
individual even though the information is in fact not constantly being 
used. Safeguards Information designated as Safeguards Information-
Modified Handling within alarm stations, or rooms continuously occupied 
by authorized individuals, need not be locked in a file drawer or 
cabinet.
    (2) While unattended, Safeguards Information designated as 
Safeguards Information-Modified Handling must be stored in a locked 
file drawer or cabinet. The container shall not identify the contents 
of the matter contained and must preclude access by individuals not 
authorized access in accordance with the provisions of this section. 
Knowledge of lock combinations or access to keys protecting Safeguards 
Information designated as Safeguards Information-Modified Handling must 
be limited to a minimum number of personnel for operating purposes who 
have a ``need to know'' and are otherwise authorized access to 
Safeguards Information in accordance with the provisions of this part. 
Access to lock combinations must be strictly controlled so as to 
prevent disclosure to an individual not authorized access to Safeguards 
Information designated as Safeguards Information-Modified Handling.
    (d) Preparation and marking of documents or other matter.
    (1) Each document or other matter that contains Safeguards 
Information designated as Safeguards Information-Modified Handling as 
described in Sec.  73.23(a) and in this section must be marked to 
indicate the presence of Safeguards Information with modified handling 
requirements in a conspicuous manner on the top and bottom of each 
page. The first page of the document must also contain:
    (i) The name, title, and organization of the individual authorized 
to make a ``Safeguards Information designated as Safeguards 
Information-Modified Handling'' determination, and who has determined 
that the document contains Safeguards Information designated as 
Safeguards Information-Modified Handling;
    (ii) The date the determination was made; and
    (iii) An indication that unauthorized disclosure will be subject to 
civil and criminal sanctions.
    (2) In addition to the markings at the top and bottom of each page, 
any transmittal letters or memoranda to or from the NRC which do not in 
themselves contain Safeguards Information designated as Safeguards 
Information-Modified Handling shall be marked to indicate that 
attachments or enclosures contain Safeguards Information designated as 
Safeguards Information-Modified Handling but that the transmittal 
document does not (i.e., ``When separated from Safeguards Information 
designated as Safeguards Information-Modified Handling enclosure(s), 
this document is decontrolled'').
    (3) Any transmittal document forwarding Safeguards Information 
designated as Safeguards Information-Modified Handling must alert the 
recipient that protected information is

[[Page 64065]]

enclosed. Certification that a document or other media contains 
Safeguards Information designated as Safeguards Information-Modified 
Handling must include the name and title of the certifying official and 
date designated. Portion marking is required only for correspondence to 
and from the NRC (i.e., cover letters, but not attachments) that 
contains Safeguards Information designated as Safeguards Information-
Modified Handling. The portion marking must be sufficient to allow the 
recipient to identify and distinguish those sections of the transmittal 
document or other information containing the Safeguards Information 
from non-Safeguards Information.
    (4) Marking of documents containing or transmitting Safeguards 
Information with modified handling requirements shall, at a minimum 
include the words ``Safeguards Information-Modified Handling'' to 
ensure identification of protected information for the protection of 
facilities and material covered by Sec.  73.23.
    (e) Reproduction of matter containing Safeguards Information 
designated as Safeguards Information-Modified Handling. Safeguards 
Information designated as Safeguards Information-Modified Handling may 
be reproduced to the minimum extent necessary, consistent with need, 
without permission of the originator. Equipment used to reproduce 
Safeguards Information designated as Safeguards Information-Modified 
Handling must be evaluated to ensure that unauthorized individuals 
cannot access the information (e.g., unauthorized individuals cannot 
access SGI by gaining access to retained memory or network 
connectivity).
    (f) External transmission of documents and material.
    (1) Documents or other matter containing Safeguards Information 
designated as Safeguards Information-Modified Handling, when 
transmitted outside an authorized place of use or storage, must be 
packaged in two sealed envelopes or wrappers to preclude disclosure of 
the presence of protected information. The inner envelope or wrapper 
must contain the name and address of the intended recipient and be 
marked on both sides, top and bottom, with the words ``Safeguards 
Information-Modified Handling.'' The outer envelope or wrapper must be 
opaque, addressed to the intended recipient, must contain the address 
of the sender, and may not bear any markings or indication that the 
document contains Safeguards Information designated as Safeguards 
Information-Modified Handling.
    (2) Safeguards Information designated Safeguards Information-
Modified Handling may be transported by any commercial delivery company 
that provides service with computer tracking features, U.S. first 
class, registered, express, or certified mail, or by any individual 
authorized access pursuant to these requirements.
    (3) Except under emergency or extraordinary conditions, Safeguards 
Information designated as Safeguards Information-Modified Handling must 
be transmitted electronically only by protected telecommunications 
circuits (including facsimile) or encryption (Federal Information 
Processing Standard [FIPS] 140-2 or later) approved by the appropriate 
NRC office. For the purpose of this section, emergency or extraordinary 
conditions are defined as any circumstances that require immediate 
communications in order to report, summon assistance for, or respond to 
a security contingency event or an event that has potential security 
significance. Physical security events required to be reported pursuant 
to Sec.  73.71 are considered to be extraordinary conditions.
    (g) Processing of Safeguards Information-Modified Handling on 
electronic systems.
    (1) Safeguards Information designated for modified handling may be 
stored, processed or produced on a computer or computer system, 
provided that the system is assigned to the licensee's or contractor's 
facility. Safeguards Information designated as Safeguards Information-
Modified Handling files must be protected, either by a password or 
encryption, to prevent unauthorized individuals from gaining access. 
Word processors such as typewriters are not subject to these 
requirements as long as they do not transmit information off-site. 
(Note: if Safeguards Information designated as Safeguards Information-
Modified Handling is produced on a typewriter, the ribbon must be 
removed and stored in the same manner as other Safeguards Information 
designated as Safeguards Information-Modified Handling.)
    (2) Safeguards Information designated as Safeguards Information-
Modified Handling files may be transmitted over a network if the file 
is encrypted. In such cases, the licensee will select a commercially 
available encryption system that the National Institute of Standards 
and Technology (NIST) has validated as conforming to Federal 
Information Processing Standards (FIPS). Safeguards Information 
designated as Safeguards Information-Modified Handling files shall be 
properly labeled to indicate the presence of Safeguards Information 
with modified handling requirements and saved to removable media and 
stored in a locked file drawer or cabinet.
    (3) A mobile device (such as a laptop computer) may also be used 
for the processing of Safeguards Information designated as Safeguards 
Information-Modified Handling provided the device is secured in an 
appropriate locked storage container when not in use. Other systems may 
be used if approved for security by the appropriate NRC office.
    (h) Removal from Safeguards Information-Modified Handling category. 
Documents originally containing Safeguards Information designated as 
Safeguards Information-Modified Handling must be removed from the 
Safeguards Information category at such time as the information no 
longer meets the criteria contained in this Part. A review of such 
documents to make that determination shall be conducted every 10 years. 
Documents that are 10 years or older and designated as SGI or SGI-M 
shall be reviewed for a decontrol determination if they are currently 
in use or removed from storage. Care must be exercised to ensure that 
any document decontrolled shall not disclose Safeguards Information in 
some other form or be combined with other unprotected information to 
disclose Safeguards Information. The authority to determine that a 
document may be decontrolled shall be exercised only by the NRC or with 
NRC approval, or if possible, in consultation with the individual or 
organization that made the original determination.
    (i) Destruction of matter containing Safeguards Information 
designated as Safeguards Information-Modified Handling. Documents or 
other media containing Safeguards Information shall be destroyed when 
no longer needed. The information can be destroyed by burning, 
shredding, or any other method that precludes reconstruction by means 
available to the public at large. Piece sizes no wider than one quarter 
inch composed of several pages or documents and thoroughly mixed are 
considered completely destroyed.
    44. In Sec.  73.37, paragraphs (f)(2)(iv), (f)(3)(iii) and (iv), 
and (g) are revised as follows:


Sec.  73.37  Requirement for the physical protection of irradiated 
reactor fuel in transit.

    (f) * * *
    (2) * * *
    (iv) A statement that the information described below in Sec.  
73.37(f)(3) is required by NRC regulations to be

[[Page 64066]]

protected in accordance with the requirements of Sec. Sec.  73.21 and 
73.22.
    (3) * * *
    (iii) For the case of a single shipment whose schedule is not 
related to the schedule of any subsequent shipment, a statement that 
schedule information must be protected in accordance with the 
provisions of Sec. Sec.  73.21 and 73.22 until at least 10 days after 
the shipment has entered or originated within the state.
    (iv) For the case of a shipment in a series of shipments whose 
schedules are related, a statement that schedule information must be 
protected in accordance with the provisions of Sec. Sec.  73.21 and 
73.22 until 10 days after the last shipment in the series has entered 
or originated within the state and an estimate of the date on which the 
last shipment in the series will enter or originate within the state.
* * * * *
    (g) State officials, state employees, and other individuals, 
whether or not licensees of the Commission, who receive schedule 
information of the kind specified in Sec.  73.37(f)(3) shall protect 
that information against unauthorized disclosure as specified in 
Sec. Sec.  73.21 and 73.22.
    45. In Sec.  73.57 paragraphs (a)(1) and (2) and (b)(2)(i) and (ii) 
are revised and paragraph (e)(3) is added to read as follows:


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

    (a) General. (1) Each licensee who is authorized to operate a 
nuclear power reactor under part 50 or to engage in an activity subject 
to regulation by the Commission shall comply with the requirements of 
this section.
    (2) Each applicant for a license to operate a nuclear power reactor 
under part 50 of this chapter or to engage in an activity subject to 
regulation by the Commission, as well as each entity who has provided 
written notice to the Commission of intent to file an application for 
licensing, certification, permitting, or approval of a product subject 
to regulation by the Commission shall submit fingerprints for those 
individuals who will have access to Safeguards Information.
    (b) * * *
    (2) * * *
    (i) For unescorted access to the nuclear power facility or (but 
must adhere to provisions contained in Sec. Sec.  73.21 and 73.22): NRC 
employees and NRC contractors on official agency business; individuals 
responding to a site emergency in accordance with the provisions of 
Sec.  73.55(a); a representative of the International Atomic Energy 
Agency (IAEA) engaged in activities associated with the U.S./IAEA 
Safeguards Agreement at designated facilities who has been certified by 
the NRC; law enforcement personnel acting in an official capacity; 
State or local government employees who have had equivalent reviews of 
FBI criminal history data; and individuals employed at a facility who 
possess ``Q'' or ``L'' clearances or possess another active government 
granted security clearance, i.e, Top Secret, Secret, or Confidential;
    (ii) For access to Safeguards Information only but must adhere to 
provisions contained in Sec. Sec.  73.21, 73.22, and 73.23: The 
categories of individuals specified in 10 CFR Sec.  73.59.
* * * * *
    (e) * * *
    (3) In addition to the right to obtain records from the FBI in 
paragraph (e)(1) of this section and the right to initiate challenge 
procedures in paragraph (e)(2) of this section, an individual 
participating in an NRC adjudication and seeking to obtain SGI for use 
in that adjudication may appeal a final adverse determination by the 
NRC Office of Administration to the Presiding Officer of the 
proceeding. Potential witnesses, participants without attorneys, and 
attorneys for whom the NRC Office of Administration has made a final 
adverse determination on trustworthiness and reliability may request 
that the Chairman of the Atomic Safety and Licensing Board Panel 
designate an officer other than the presiding officer of the proceeding 
to review the adverse determination.
* * * * *
    46. In Sec.  73.59 is revised to read as follows:


Sec.  73.59.  Relief from fingerprinting, identification and criminal 
history records checks and background checks for designated categories 
of individuals.

    Fingerprinting, and the identification and criminal history records 
checks required by section 149 of the Atomic Energy Act of 1954, as 
amended, and background checks are not required for the following 
individuals prior to granting access to Safeguards Information or 
Safeguards Information designated as Safeguards Information--Modifed 
Handling as defined in 10 CFR 73.2:
    (a) An employee of the Commission or the Executive Branch of the 
United States government who has undergone fingerprinting for a prior 
U.S. government criminal history check;
    (b) A member of Congress;
    (c) An employee of a member of Congress or Congressional committee 
who has undergone fingerprinting for a prior U.S. government criminal 
history check;
    (d) The Comptroller General or an employee of the Government 
Accountability Office who has undergone fingerprinting for a prior U.S. 
Government criminal history check.
    (e) The Governor of a State or his or her designated State employee 
representative;
    (f) A representative of a foreign government organization that is 
involved in planning for, or responding to, nuclear or radiological 
emergencies or security incidents who the Commission approves for 
access to Safeguards Information or Safeguards Information designated 
as Safeguards Information--Modifed Handling;
    (g) Federal, State, or local law enforcement personnel;
    (h) State Radiation Control Program Directors and State Homeland 
Security Advisors or their designated State employee representatives;
    (i) Agreement State employees conducting security inspections on 
behalf of the NRC pursuant to an agreement executed under section 
274.i. of the Atomic Energy Act;
    (j) Representatives of the International Atomic Energy Agency 
(IAEA) engaged in activities associated with the U.S./IAEA Safeguards 
Agreement who have been certified by the NRC;
    (k) Any agent, contractor, or consultant of the aforementioned 
persons who has undergone equivalent criminal history and background 
checks to those required by 10 CFR Sec. Sec.  73.22(b) or 73.23(b).
    47. A new Appendix I to part 73 is added to read as follows:

Appendix I to Part 73--Category 1 and 2 Radioactive Materials

[[Page 64067]]



                                                   Table I-1.--Quantities of Concern Threshold Limits
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Category 1                                                Category 2
            Radionuclides            -------------------------------------------------------------------------------------------------------------------
                                         Terabecquerels  (TBq)            Curies  (Ci)1            Terabecquerels  (TBq)            Curies  (Ci)1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Americium-241.......................  6x10\1\                      1.6x10\3\                    6x10-\1\                     1.6x10\1\
Americium-241/Be....................  6x10\1\                      1.6x10\3\                    6x10-\1\                     1.6x10\1\
Californium-252.....................  2x101                        5.4x10\2\                    2x10-\1\                     5.4
Curium-244..........................  5x10\1\                      1.4x10\3\                    5x10-\1\                     1.4x10\1\
Cobalt-60...........................  3x10\1\                      8.1x10\2\                    3x10-\1\                     8.1
Cesium-137..........................  1x10\2\                      2.7x10\3\                    1                            2.7x10\1\
Gadolinium-153......................  1x10\3\                      2.7x10\4\                    1x10\1\                      2.7x10\2\
Iridium-192.........................  8x10\1\                      2.2x10\3\                    8x10-\1\                     2.2x10\1\
Promethium-147......................  4x10\4\                      1.1x10\6\                    4x10\2\                      1.1x10\4\
Plutonium-238.......................  6x10\1\                      1.6x10\3\                    6x10-\1\                     1.6x10\1\
Plutonium-239/Be....................  6x10\1\                      1.6x10\3\                    6x10-\1\                     1.6x10\1\
Radium-226..........................  4x10\1\                      1.1x10\3\                    4x10-\1\                     1.1x10\1\
Selenium-75.........................  2x10\2\                      5.4x10\3\                    2                            5.4x10\1\
Strontium-90 (Y-90).................  1x10\3\                      2.7x10\4\                    1x10\1\                      2.7x10\2\
Thulium-170.........................  2x10\4\                      5.4x10\5\                    2x10\2\                      5.4x10\3\
Ytterbium-169.......................  3x10\2\                      8.1x10\3\                    3                            8.1x10\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The regulatory standard values are given in TBq. Curie (Ci) values are provided for practical usefulness only and are rounded after conversion.

Calculations Concerning Multiple Sources or Multiple Radionuclides

    The ``sum of fractions'' methodology for evaluating combinations of 
multiple sources or multiple radionuclides, is to be used in 
determining whether a facility or activity meets or exceeds the 
threshold limits and is thus subject to the physical and/or information 
security requirements of this part.
    I. If multiple sources and/or multiple radionuclides are present in 
a facility or activity, the sum of the fractions of the activity of 
each of the radionuclides must be determined to verify the facility or 
activity is less than the Category 1 or 2 limits of Table 1, as 
appropriate. Otherwise, if the calculated sum of the fractions ratio, 
using the following equation, is greater than or equal to 1.0, then the 
facility or activity meets or exceeds the threshold limits of Table 1 
and the applicable physical and/or information security provisions of 
this part apply.
    II. Use the equation below to calculate the sum of the fractions 
ratio by inserting the actual activity of the applicable radionuclides 
from Table 1 or of the individual sources (of the same radionuclides 
from Table 1) in the numerator of the equation and the corresponding 
threshold activity limit from the Table 1 in the denominator of the 
equation. Sum of the fraction calculations must be performed in metric 
values (i.e., TBq) and the numerator and denominator values must be in 
the same units.

R1 = activity for radionuclides or source number 1
R2 = activity for radionuclides or source number 2
Rn = activity for radionuclides or source number n
AR1 = activity limit for radionuclides or source number 1
AR2 = activity limit for radionuclides or source number 2
ARn = activity limit for radionuclides or source number n
[GRAPHIC] [TIFF OMITTED] TP31OC06.032

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

    48. The authority citation for part 76 is revised to read as 
follows:

    Authority: Secs. 161, 68 Stat. 948, as amended, secs. 1312, 
1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-
349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204, 
206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846). 
Sec 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 
1321, 1321-349 (42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 (44 
U.S.C. 3504 note); Energy Policy Act of 2005, Pub. L. No. 109-58, 
119 Stat. 549 (2005). Sec. 76.7 also issued under Pub. L. 95-601. 
Sec. 10, 92 Stat 2951 (42 U.S.C. 5851). Sec. 76.22 is also issued 
under sec. 193(f), as amended, 104 Stat. 2835, as amended by Pub. L. 
104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(f)). Sec. 76.35(j) 
also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152).
    49. In Sec.  76.113, paragraph (c) is revised to read as follows:


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

* * * * *
    (c) The requirements for the protection of Safeguards Information 
pertaining to formula quantities of strategic special nuclear material 
(Category I) are contained in Sec. Sec.  73.21 and 73.22 and parts 25 
and 95 of this chapter. Information designated by the U.S. Department 
of Energy (DOE) as Unclassified Controlled Nuclear Information must be 
protected in accordance with DOE requirements.
* * * * *
    50. In Sec.  76.115, paragraph (d) is added to read as follows:


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

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


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

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

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

    52. The authority citation for part 150 is revised to read as 
follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as

[[Page 64068]]

amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note); Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 
(2005).

    Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued 
under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 
92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 
150.14 also issued under sec. 53, 68 Stat. 930, as amended (42 
U.S.C. 2073).
    Section 150.15 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 150.17a also 
issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 
also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).

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


Sec.  150.15  Persons not exempt.

    (a) * * *
    (9) The requirements for the protection Safeguards Information in 
Sec.  73.21 and the requirements in Sec.  73.22 or Sec.  73.23 of this 
chapter, as applicable.
* * * * *

    Dated at Rockville, Maryland this 19th day of October 2006.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 06-8900 Filed 10-30-06; 8:45 am]

BILLING CODE 7590-01-P