# Protection of Safeguards Information

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-24904

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** October 24, 2008
- **Citation:** 73 FR 63546

## Text

NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76, and 150
RIN 3150-AH57
[NRC-2005-0001]
Protection of Safeguards Information

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Nuclear Regulatory Commission (NRC) is amending its regulations for the protection of Safeguards Information (SGI) to protect SGI from inadvertent release and unauthorized disclosure which might compromise the security of nuclear facilities and materials. The amendments modify the requirements for the protection of SGI with respect to persons, information, and materials subject to the regulations, as well as those that are not. These amendments are within the scope of Commission authority under the Atomic Energy Act of 1954, as amended (AEA). The NRC published a proposed rule on SGI on February 11, 2005, and published a revised proposed rule on October 31, 2006, to allow for public comment on changes to the proposed rule text made for the following reasons: In response to public comments, to reflect amendments to the AEA in the Energy Policy Act of 2005 (EPAct), and to reflect Commission Orders issued to licensees authorized to possess and transfer items containing certain quantities of radioactive material. The NRC is now publishing this final rule, in which the NRC is responding to the comments that have been received and is making appropriate changes to the text of the revised proposed rule.

DATES:

This rule is effective on February 23, 2009. Licensees and other persons subject to this rule are required to implement this rule by February 23, 2009. Licensees required to submit to the NRC any changes to security plans under these regulations are required to submit such changes to the NRC by this effective date.

ADDRESSES:

You can access publicly available documents related to this document using the following methods:

Federal e-Rulemaking Portal:
Go to
http://www.regulations.gov
and search for documents filed under Docket ID NRC-2005-0001. Address questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail
Carol.Gallagher@nrc.gov.

NRC's Public Document Room (PDR):
The public may examine and have copied for a fee, publicly available documents at the NRC's PDR, Public File Area O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.

NRC's Agencywide Documents Access and Management System (ADAMS):

Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at
http://www.nrc.gov/reading-rm/adams.html.
From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to
pdr.resource@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Jason Zorn, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-8350, e-mail
jason.zorn@nrc.gov
; or Bernard Stapleton, Office of Nuclear Security and Incident Response, Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-2432, e-mail
bernard.stapleton@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

II. Need for Rule

III. Purpose of Rulemaking

IV. Discussion

A. Resolution of Public Comments on the Revised Proposed Rule

1. Overview of Comments on the Revised Proposed Rule

2. Comments and Issues, and Their Resolution in the Final Rule

B. Analysis of Changes Made in the Final Rule to the Text of the Revised Proposed Rule

V. Criminal Penalties

VI. Agreement State Issues

VII. Voluntary Consensus Standards

VIII. Finding of No Significant Impact: Environmental Assessment

IX. Paperwork Reduction Act Statement

X. Regulatory Analysis

XI. Regulatory Flexibility Certification

XII. Backfit Analysis

XIII. Congressional Review Act

I. Background

On February 11, 2005 (70 FR 7196), the NRC published a proposed rule to amend 10 CFR parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76, and 150 governing the handling of Safeguards Information (SGI) and to create a new category of protected material, Safeguards Information—Modified Handling (SGI-M). Subsequently, Congress passed the Energy Policy Act of 2005 (EPAct), Public Law No. 109-58, 119 Stat. 594. Section 652 of the EPAct amended section 149 of the Atomic Energy Act of 1954, as amended (AEA) to require fingerprinting, for criminal history records check purposes, of a broader class of persons. Before the EPAct, the NRC's fingerprinting authority was limited to requiring licensees and applicants for a license to operate a nuclear power reactor under 10 CFR part 50 to fingerprint individuals prior to granting access to SGI. The EPAct expanded the NRC's authority to require fingerprinting of individuals before granting them access to SGI. Under the EPAct, fingerprinting by the following individuals or entities is necessary before granting access to SGI: (1) Individuals licensed or certified to engage in an activity subject to regulation by the Commission, including utilization facilities; (2) Individuals who have filed an application for a license or certificate to engage in Commission-regulated activities; and (3) Individuals who have notified the Commission in writing of an intent to file an application for licensing, certification, permitting, or approval of a product or activity subject to regulation by the Commission.

The EPAct preserved the Commission's authority in Section 149 to relieve by rule certain persons from the fingerprinting, identification, and criminal history records checks required for access to SGI. The Commission exercised that authority to relieve by rule certain categories of persons from those requirements, including Federal, State, and local officials involved in security planning and incident response; Agreement State employees who evaluate licensee compliance with NRC-issued security-related orders; members of Congress who request SGI as part of their oversight function; and certain foreign representatives. These exemptions are based on the Commission's findings that interrupting those individuals' access to SGI to perform fingerprinting and criminal history records checks (1) would harm vital inspection, oversight, planning, and enforcement functions, (2) would impair communications among the NRC, its licensees, and first responders in the event of an imminent security threat or other emergency, and (3) could strain the Commission's cooperative relationships with its international counterparts, and might delay needed exchanges of information to the detriment of current security initiatives both at home and abroad. The final rule was published in the
Federal Register

on June 13, 2006 (71 FR 33989). That final rule was necessary to avoid disruption of the Commission's information sharing activities during the interim period while the Commission completed the overall revision of the SGI-related regulations in this rulemaking.

SGI is a special category of sensitive unclassified information to be protected from unauthorized disclosure under Section 147 of the Atomic Energy Act of 1954, as amended (AEA). Although SGI is considered to be sensitive unclassified information, it is handled and protected more like Classified National Security Information than like other sensitive unclassified information (e.g., privacy and proprietary information). Part 73, “Physical Protection of Plants and Materials,” of the NRC's regulations in Title 10 of the Code of Federal Regulations (CFR) contains requirements for the protection of SGI. Commission orders issued since September 11, 2001, have also imposed requirements for the designation and protection of SGI. These requirements apply to SGI in the hands of any person, whether or not a licensee of the Commission, who produces, receives, or acquires SGI. An individual's access to SGI requires both a valid “need to know” for the information and an authorization based on an appropriate background check. Power reactors, certain research and test reactors, and independent spent fuel storage installations are examples of the categories of licensees currently subject to the provisions of 10 CFR part 73 for the protection of SGI. Examples of the types of information designated as SGI include the physical security plan for a licensee's facility, the design features of a licensee's physical protection system, and operational procedures for the licensee's security organization.

The Commission has authority under Section 147 of the AEA to designate, by regulation or order, other types of information as SGI. For example, Section 147a.(2) allows the Commission to designate as SGI a licensee's or applicant's detailed security measures (including security plans, procedures and equipment) for the physical protection of source material or byproduct material in quantities determined by the Commission to be significant to the public health and safety or the common defense and security. The Commission has, by order, imposed SGI handling requirements on certain categories of these licensees. An example is the November 25, 2003, Order issued to certain materials licensees.
1

1
This Order was published in the
Federal Register
as “All Licensees Authorized to Manufacture or Initially Transfer Items Containing Radioactive Material for Sale or Distribution and Who Possess Certain Radioactive Material of Concern and All Persons Who Obtain Safeguards Information Described Herein; Order Issued on November 25, 2003, Imposing Requirements for the Protection of Certain Safeguards Information (Effective Immediately),” (69 FR 3397; January 23, 2004).

Violations of SGI handling and protection requirements, whether those specified in part 73 or those imposed by order, are subject to the applicable civil and criminal sanctions. Licensee employees, past or present, and all other persons who have had access to SGI have a continuing obligation to protect SGI in order to prevent inadvertent release and unauthorized disclosure. Information designated as SGI must be withheld from public disclosure and must be physically controlled and protected. Protection requirements include (1) secure storage; (2) document marking; (3) restriction of access; (4) limited reproduction; (5) protected transmission; and (6) controls for information processing on electronic systems.

Inadequate protection of SGI, including unauthorized disclosure, may result in civil and/or criminal penalties. The AEA explicitly provides in Section 147a. that “any person, whether or not a licensee of the Commission, who violates any regulations adopted under this section shall be subject to the civil monetary penalties of Section 234 of this Act.” Furthermore, willful violation of any regulation or order governing SGI is a felony subject to criminal penalties in the form of fines or imprisonment, or both, as prescribed in Section 223 of the AEA.

II. Need for Rule

Changes in the threat environment have revealed the need to protect as SGI additional types of security information held by a broader group of persons, including licensees, applicants, vendors, and certificate holders. The regulations in effect prior to this rule did not specify all of the types of information that could be designated as SGI and are now recognized to be significant to the public health and safety or the common defense and security. The unauthorized release of this information could result in harm to the public health and safety and the Nation's common defense and security, as well as damage to the Nation's critical infrastructure, including nuclear power plants and other facilities and materials licensed and regulated by the NRC or Agreement States.

Since September 11, 2001, the NRC has issued orders that have increased the number of licensees whose security measures will be protected as SGI and added types of security information considered to be SGI. Orders have been issued to power reactor licensees, fuel cycle facility licensees, certain source material licensees, and certain byproduct material licensees. Some of the orders expanded the types of information to be protected by licensees who already have an SGI protection program, such as nuclear power reactor licensees. Other orders were issued to licensees that have not previously been subject to SGI protection requirements in the regulations, such as certain licensees authorized to manufacture or initially transfer items containing radioactive material.
2

Some orders imposed a new designation: Safeguards Information-Modified Handling (SGI-M).

2

See
Order (69 FR 3397; January 23, 2004).

SGI-M refers to SGI with handling requirements that are modified somewhat due to the lower risk posed by unauthorized disclosure of the information. The SGI-M protection requirements apply to certain security-related information regarding quantities of source, byproduct, and special nuclear materials for which the harm caused by unauthorized disclosure of information would be less than that for other SGI.

Some of the requirements imposed by orders that have increased the types of information to be considered SGI are not covered by the current regulations. Although new SGI requirements could continue to be imposed through the issuance of orders, the regulations would not reflect current Commission SGI policy and/or requirements.

III. Purpose of Rulemaking

NRC staff review of the SGI regulatory program indicates that changes in the regulations are needed to address issues such as access to SGI, types of security information to be protected, and handling and storage requirements.

This rulemaking will:

(1) Revise the definition of “need to know” in 10 CFR 73.2;

(2) Implement expanded fingerprinting and criminal history records check procedures for broader categories of individuals who will have access to SGI unless exempt from those requirements;

(3) Implement a requirement for background checks to determine trustworthiness and reliability for

individuals who will have access to SGI unless exempt from those requirements;

(4) Implement generally applicable requirements for SGI that are similar to requirements imposed by the orders;

(5) Expand the scope of part 73 to include additional categories of licensees (e.g., source and byproduct material licensees, research and test reactors not previously covered, and fuel cycle facilities not previously covered). As expanded, vendors, applicants and certificate holders are also within the scope of the rule;

(6) Expand the types of security information covered by the definition of SGI in § 73.2 and the information categories described in §§ 73.22 and 73.23 to include detailed security measures for the physical protection of byproduct, source, and special nuclear material; emergency planning scenarios and implementing procedures; uncorrected vulnerabilities or weaknesses in a security system; and certain training and qualification information;

(7) Clarify requirements for obtaining access to SGI in the context of adjudications and clarify the appeal procedures available;

(8) Modify the original proposed rule to align it with the final rule in 10 CFR 73.59 granting relief from the fingerprinting, identification and criminal history records checks and background checks for designated categories of individuals; and

(9) Modify 10 CFR 73.59 to make it consistent with the language and structure of the proposed SGI rule.

In the development of the rule, a graded approach, based on the risks and consequences of information disclosure, was used to determine which category of licensee or type of information would be subject to certain protection requirements. This graded approach was applied to issues such as the type of information to be protected, the classes of licensees subject to the rule, and the level of handling requirements necessary for the various licensees. For example, the graded approach allows certain licensees to employ the modified-handling procedures introduced in recent orders and now set forth in the SGI-M provisions of this final rule.

The requirements set forth in this final rule are the minimum restrictions the Commission finds necessary to protect SGI against inadvertent release or unauthorized disclosure which might compromise the health and safety of the public or the common defense and security. The final rule covers those facilities and materials the Commission has already determined need to be protected against theft or sabotage. The categories of information constituting SGI relate to the types of facilities and the quantities of special nuclear material, source material and byproduct material determined by the Commission to be significant and therefore subject to protection against unauthorized disclosure pursuant to Section 147 of the AEA. Unauthorized release of SGI could reduce the deterrence value of systems and measures used to protect nuclear facilities and materials and allow for the possible compromise of those facilities and materials. Such disclosures could also facilitate advance planning by an adversary intent on committing acts of theft or sabotage against the facilities and materials within the scope of this rule. Further, the Commission has determined, pursuant to Section 147a.(3)(B) of the AEA, that the unauthorized disclosure of SGI could reasonably be expected to have a significant adverse effect on the health and safety of the public or the common defense and security by significantly increasing the likelihood of theft, diversion, or sabotage of nuclear material or a facility.

IV. Discussion

A. Resolution of Public Comments on the Revised Proposed Rule

1. Overview of Comments on the Revised Proposed Rule

On February 11, 2005 (70 FR 7196), the Commission published a proposed rule and requested public comments. On October 31, 2006 (71 FR 64004), the Commission published a revised version of the proposed rule that responded to comments on the original proposed rule. The revised proposed rule also solicited comments on changes and additions to the original proposed rule by January 2, 2007. In addition to this general solicitation for comments, the revised proposed rule (71 FR 64051) solicited specific public comment on the appropriateness of the exemptions in the revised provisions in 10 CFR 73.59, as they apply to various categories of individuals. The specified categories of individuals are exempt from the background check requirements (including fingerprinting for a criminal history records check) for access to SGI.

Ten comment letters were received. Copies of those letters are available for public inspection and copying for a fee at the NRC Public Document Room, 11555 Rockville Pike, Rockville, Maryland, or on the NRC's Agencywide Documents Access and Management System, available online at:
http://www.nrc.gov/reading-rm/adams/web-based.html.

Two comment letters were from agreement states, six comment letters were from industry, one comment letter was from a university with a research reactor, and one comment letter was from an individual. The comment letters provided various points of view and suggestions for clarifications, additions and deletions. Also, although commenters did not refer to the request for specific comment, the Commission received two comments on § 73.59. Responses to the comments are set forth below.

2. Comments and Issues, and Their Resolution in the Final Rule

General Issues.

Information in Licenses.

Comment:
A commenter states that although not referenced, information about the types and quantities of material listed on a license in some cases should be considered SGI when the license contains nuclides and quantities of concern. The commenter also states that licensees transferring material to another licensee must obtain a copy of the recipient's license so this information is easily available and in many cases publicly available. According to this commenter, this issue needs to be reviewed by NRC and state agencies to assure the appropriate level of security is given to standard licensing documents.

Response:
Under existing regulations and practice, licensing documents are reviewed to determine if they contain any information which constitutes SGI or other information which warrants protection from unauthorized disclosure. Generally speaking, information on possession limits for radionuclides does not meet the definition of SGI. This information, although not categorized as SGI, may be withheld from public disclosure if disclosure of the information could raise security concerns. For example, in some contexts, information on actual quantities possessed in relation to possession limits could raise security concerns. Prior to transferring material to another licensee, verification that the licensee is authorized to receive the material is required by one of the methods provided in § 30.41(d) or in Commission orders.

Interaction with other regulations.

Comment:
Another commenter asserts that the proposed rule conflicts with the requirements of 49 CFR part 15, the Department of Transportation (DOT) regulations regarding the protection of information associated with the transportation of certain types and quantities of radioactive materials. The commenter further believes that this

will result in licensees transporting nuclear materials having to contend with two separate information protection regulations for the same information. The commenter urges the NRC and the DOT to develop a coordinated rulemaking regarding this issue.

Response:
This comment was made on the previous proposed rule and a response was provided at 71 FR 64024. The commenter has not provided any new information, and the Commission continues to conclude that the NRC's regulations are not in conflict with the DOT regulations. Security plans required by the NRC can be developed so that they also comply with DOT requirements.

Implementation period for the rule.

Comment:
Some commenters believe that the implementation period of 90 days after publication of the rule is too short. One commenter asserts that gaseous diffusion plant licensees will need to review existing security plans that integrate protective measures for special nuclear material, classified material and other security interest areas against existing classification guidance and SGI designation guidance to ensure that information is properly designated and marked. A commenter believes that for information subject to multiple, overlapping protection programs, the 90-day implementation period is not sufficient. The commenters believe that at least one year should be provided for implementation for power reactors and other licensee sites.

Response:
Although many of the requirements in the rule for the designation and handling of SGI are similar to the requirements in orders issued by the Commission since September 11, 2001, some licensees are subject to new requirements in the rule. For example, some security orders have required licensees to conduct a criminal history records check prior to granting an individual access to SGI, but have not imposed the other elements of a background check (at a minimum, an individual's employment history, education, and personal references). Unless one of the exemptions from the background check requirement in § 73.59 applies, licensees will be obligated to perform a background check consisting of all of its elements for access to SGI. In order to allow sufficient time for licensees to implement this new requirement and any others to which a licensee may be subject, the Commission is extending the time period for the implementation of the final rule from 90 days to 120 days. The Commission does not, however, believe that an implementation period of at least one year is needed.

Section-Specific Comments:

Part 2: Rules of Practice for Domestic Licensing Proceedings and Issuance of Orders.

Comments concerning burdens on the parties to an NRC adjudication.

Comment:
An agreement state commenter predicts that intervenors in an adjudication will over-designate the material they create as SGI because of the potential threat of civil and criminal penalties for unauthorized disclosure of SGI documents. The commenter also believes that it is too burdensome for intervenors to determine whether the engineering and safety analyses they generate to support a contention are SGI. The commenter believes that in light of the above difficulties, parties should be allowed to file documents marked “may contain safeguards information,” which would be treated as SGI pending a determination by NRC staff members not involved in the adjudicatory proceeding. Although it is not entirely clear from the comment letter, the commenter might also be requesting that intervenors not be potentially subject to criminal and civil penalties for violating SGI requirements.

Response:
In response to a comment on the first proposed rule, the Commission acknowledged that there is a tendency to “err on the safe side” in making SGI designations, and stated that it might make appropriate changes if over-designating documents as SGI arises as a problem in practice. (71 FR 64020-64021). Eliminating criminal and civil sanctions for violating SGI requirements, however, would not be among these appropriate changes. The Commission believes that criminal and civil sanctions serve a worthwhile purpose in securing compliance with SGI provisions, and that these sanctions should apply equally to all parties. The AEA explicitly authorizes criminal sanctions for willful violations of SGI provisions.
See
42 U.S.C. 2167 and 2273.

The Commission does not accept the commenter's suggestion to allow parties to mark pleadings as possibly containing SGI awaiting a determination by the NRC staff; the Commission thinks it fair that parties be responsible for determining whether the analyses they generate contain SGI. The commenter's suggestion, if implemented, would allow parties to file documents labeled “may contain Safeguards Information” without doing a careful analysis. The potential for over-designating SGI would be much greater under the commenter's suggested regime than under the rule as proposed. Until the NRC staff review was complete, there would likely be a much larger number of documents subject to SGI handling than would be the case under the proposed rule. If a party needs assistance, however, in determining whether the materials it creates contain SGI, the staff will be available to provide advice if requested.

Comment:
An agreement state commenter asserts that proposed § 73.22(h) allows the decontrol of SGI-marked documents only by, or with the approval of, the NRC, and suggests that a mechanism be established allowing intervenors to request the NRC staff to decontrol documents, or portions thereof. The commenter believes that such a process would benefit intervenors by removing from them the burden of having to control and store a large mass of documents as SGI. The commenter states that destruction might not be a viable option for an intervenor to reduce its burdens because of that intervenor's internal document retention procedures.

Response:
Contrary to the commenter's understanding, § 73.22(h) allows an SGI document to be decontrolled in consultation with the person or organization making the original SGI determination, as well as by the NRC or with the NRC's approval. The language of 73.22(h) and 73.23(h) has been modified to make this intent clear. If an intervenor no longer believes a document to contain SGI, §§ 73.22(h) and 73.23(h) allow the intervenor to contact either the NRC, or the individual or organization making the original SGI determination, for an authoritative decontrol determination.

The Commission is not adopting the commenter's suggestion to have the NRC decontrol portions of SGI documents possessed by intervenors. Such a task would require the expenditure of substantial resources without concomitant gain. For instance, the commenter's stated goal of reducing the number of documents requiring SGI handling would not be furthered because a partially decontrolled document is still an SGI document subject to SGI handling requirements.

Comment:
An agreement state commenter asserts that the proposed rule chills a party's right to judicial appeal of an NRC decision that may involve SGI because it fails explicitly to give a party to an NRC proceeding a right to provide SGI to federal Courts of Appeal (even for filings under seal) in support of its judicial filings. The commenter believes that the proposed rules are unclear on whether a party would need pre-authorization from the NRC before filing SGI with a court. The

commenter recommends revising part 73 to ensure that NRC rules defer to established court procedures so that a party may independently file SGI under seal with the court.

Response:
The Commission disagrees that the approach adopted by the Commission chills a party's right to judicial appeals of NRC decisions. Over the years, it has been rare that a party to an NRC adjudicatory proceeding has sought to file SGI in its federal court filings. The Commission prefers to consider such matters on a case-by-case basis, and, therefore, does not believe it appropriate to address this issue through this rulemaking. If this situation were to become frequent, rulemaking may be undertaken in the future. In the meantime, parties who contemplate filing SGI in judicial appeals of NRC decisions should contact the Solicitor of the NRC. The Commission does note that the requirement to protect SGI in federal court filings, or in any other context, existed under the old rules and is not fundamentally altered by these rule changes.

Comments concerning SGI designation and access determinations.

Comment:
A commenter states that the procedure specified in proposed § 2.336(f)(1)(iv) for review of an adverse determination on a party's trustworthiness and reliability should avoid any appearance of biasing the proceeding, which might occur if the review is conducted by the presiding officer of the proceeding. Such a review, according to the commenter, would require the presiding officer to consider personal information about the party, or the party's attorney, consultant, or expert witness to determine whether the person is trustworthy and reliable for purposes of having access to SGI. The commenter further states that the presiding officer might later be called upon to decide the merits of a contention based on other considerations, potentially including the credibility and persuasiveness of witnesses and advocates. In such circumstances, the commenter believes that questions may be raised about whether these judgments were improperly affected by personal information. The commenter concludes that it would be equally efficient, and avoid any appearance of bias, to require that all requests for review be presented to the “Chairman of the Atomic Safety and Licensing Board (ASLB) Panel” [Chief Administrative Judge], who would appoint an officer, other than the presiding officer, to review the adverse determination. Moreover, the commenter believes that such a process would reduce the risk that reviews by the presiding officer would adversely affect the schedule for the proceeding.

Response:
The Commission agrees with the commenter and is revising the rule to require the designation of a separate officer to review any adverse determination on trustworthiness and reliability made by the NRC Office of Administration. The Commission is confident that the presiding officer of an adjudicatory proceeding is capable of reviewing such a determination objectively without affecting the fairness of the proceedings. However, the Commission also acknowledges that such an arrangement may create the appearance of bias, and thus finds it appropriate to require, as a matter of course, that an officer detached from the proceedings be appointed to review the adverse determination. Section 2.336(f)(1)(iv) has been revised to reflect this. Conforming changes have also been made to sections 2.705(c)(3)(iv), 2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D), which contain similar provisions.

Comment:
An agreement state commenter objects to the proposed process for making “need to know” determinations in NRC adjudications and the process for challenging adverse “need to know” determinations. The commenter believes that the process for making such determinations, which is reflected in the definition of “need to know” in proposed § 73.2, is flawed in that it can place responsibility for the determination in the hands of a party “adverse” to an intervenor, whose judgment might be biased. Specifically, the commenter notes that the NRC staff would make the “need to know” determination if SGI either was originated by the NRC staff or is in the NRC staff's possession. In other cases, the originator of the SGI would make the determination, and in some cases the originator is the applicant.

The commenter also believes that the process for making “need to know” determinations, and challenging adverse determinations, “ignores the protections” of Federal Rule of Civil Procedure 26(b). The commenter appears to believe that the process for challenging adverse SGI determinations in NRC adjudicatory settings would be governed by proposed § 2.336(f)(1)(iv). According to the commenter, that section would not protect an intervenor's “confidential” and privileged information from being disclosed to adverse parties (which the commenter asserts includes the NRC staff) because an intervenor's rationale for compelling disclosure would have to be served on the staff. The commenter asserts that such confidential, privileged information could include confidential details about a nontestifying witness, attorney work-product, and litigation strategy, that the commenter believes might have to be divulged to demonstrate that the intervenor has a “need to know” for the information.

From the commenter's discussion of § 2.336(f)(1)(iv) as applied to “need to know” determinations, it appears that the commenter believes that initial determinations are made by the NRC's Office of Administration. The commenter fears that this determination might be biased due to influence from the NRC staff or its counsel, and that a “wall of separation” should be erected between the NRC staff/counsel and the Office of Administration. The commenter concludes by stating that the Commission “must ensure” that “need to know” determinations be made by “an unbiased NRC entity,” and that, at a minimum, the NRC staff/counsel making such determinations (as well as the information upon which those determinations are based) be screened from the NRC staff/counsel litigating the proceeding.

Response:
Section 2.336(f)(1)(iv) does not govern challenges to adverse “need to know” determinations. Section 2.336(f)(1)(i) and the definition of “need to know” in proposed § 73.2 provide that disputes over “need to know” determinations are to be resolved by the presiding officer. Section 2.336(f)(1)(iv) governs disputes over “trustworthiness and reliability” determinations. “Need to know” and “trustworthiness and reliability” are distinct concepts (compare the separate definitions for the two terms in proposed § 73.2) reflected in separate requirements for access to SGI (see sections 2.336(f)(1), 73.22(b), and 73.23(b)). Also, the NRC's Office of Administration makes all “trustworthiness and reliability” determinations in adjudications (see section 2.336(f)(1)(iii)-(iv)), but “need to know” determinations are made by the NRC staff office in the best position to make an informed decision about “need to know” or by the originator (see definition of “need to know” in section 73.2).

With these clarifications in mind, there are two commenter issues to be addressed. The first issue is that the initial “need to know” determination might reflect a biased judgment made by a party “adverse” to the intervenor. Although a party making the determination might be “adverse” to an intervenor, that party would still have a duty to comply with the rule. In disputed cases, the matter would be decided by the presiding officer, who is independent of the parties. This basic process is not substantially different

from other discovery, in which parties may assert privileges to keep various information from adverse parties, who can then file a motion to compel disclosure.

The second issue is that to support an intervenor's “need to know” request before the presiding officer, the intervenor might have to reveal to adverse parties confidential information, such as attorney work-product, litigation strategy, or confidential details about a nontestifying expert. The Commission believes that the “need to know” requirement will not result in a prejudicial disclosure of an intervenor's opinions or strategy. According to the definition in § 73.2, the “need to know” standard is satisfied if the following two conditions are met: (1) The information is necessary for the party “to proffer and/or adjudicate a specific contention,” and (2) the recipient has the ability to “effectively utilize the specific Safeguards Information in the proceeding.” Because an intervenor's positions must be specifically stated at the earliest stage of litigation (the contention stage), an intervenor's strategy and opinions must, to a substantial degree, be made public at the earliest stages of litigation.
3

The first “need to know” condition might be satisfied based on the face of the contention alone. Even if further information is required, a presiding officer reviewing an adjudicatory dispute concerning a “need to know” determination will probably not need to delve much further into an intervenor's strategy than might a presiding officer assessing a party's “need for the information” in challenges to assertions of qualified, as opposed to absolute, privileges.
4

But even if some prejudice were to result, SGI simply must be protected from unauthorized disclosure by limiting its dissemination only to those who have a “need to know” for it and who otherwise meet the requirements for access.

3
For an intervenor's contention to be admissible under 10 CFR 2.309(f)(1), the intervenor must state a specific issue of law or fact, briefly explain the basis for the contention, provide concise statements of alleged fact or expert opinion in support of the contention, demonstrate that the contention is material and within the proceeding's scope, and provide enough information to show that a genuine dispute exists on a material issue of law or fact.

4

See Friedman
v.
Bache Halsey Stuart Shields, Inc.
, 738 F.2d 1336, 1344 (D.C. Cir. 1984) (stating that “[i]n the discovery context, when qualified privilege is properly raised, the litigant's need is a key factor. Whether the information is disclosed depends on the relative weight of the claimant's need and the government's interest in confidentiality”).

Satisfying the second “need to know” condition for access might require the disclosure of details about a non-testifying expert's qualifications, but the text of Federal Rule of Civil Procedure 26(b)(4) protects only the “facts known or opinions held by” such experts, not inquiries into their qualifications. Although the predominant approach of the federal courts apparently requires a showing of “extreme circumstances” to justify discovery of even the identity of a non-testifying expert,
5

the Commission does not rigidly apply the procedures used in federal courts. In NRC adjudicatory proceedings, the Commission does not believe that disclosing either the identity of such an expert or his or her qualifications will substantially prejudice parties. In any event, the need to protect SGI is paramount.

5

See
8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure
, § 2032 (2d ed. 1994).

Comment:
A commenter believes that for the purposes of part 2, documents should be considered SGI if they have been designated as SGI in accordance with part 73. The commenter notes that in the event of a dispute about whether a document that has been designated as SGI should nevertheless be disclosed, the presiding officer must determine whether the person seeking disclosure should be granted access to the SGI (
i.e.
, has a need to know and is trustworthy and reliable). The commenter also asserts, however, that the presiding officer should not consider whether the information in the document meets the definition of SGI because presiding officers generally are not inherently qualified to determine whether information meets the definition of “Safeguards Information.” The commenter believes that if the definition of “Safeguards Information” in 10 CFR part 2 is the same as the definition in part 73, it will appear that parties may seek a determination by the presiding officer on whether the information meets that definition. The commenter also believes that it is clear from proposed §§ 2.336(f)(1), 2.705, 2.709 and 2.1010, which specify the grounds for a presiding officer to issue an order requiring disclosure of SGI, that a presiding officer would not be authorized to issue such an order on the grounds that the information does not meet the definition of SGI. The commenter believes this to be appropriate and to this end, suggests that § 2.4 “Safeguards Information” be modified to state, “Safeguards Information means information that has been determined to be Safeguards Information in accordance with 10 CFR 73.21-23.”

Response:
Contrary to the commenter's belief, the proposed rule nowhere prohibits presiding officers from deciding whether information in a document meets the definition of SGI. In
Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation)
, CLI-05-22, 62 NRC 542 (2005), the Commission dealt with the issue of a licensing board revisiting SGI redactions contained in one of its previously issued decisions. The Commission, citing an analogous provision in § 2.904, directed the licensing board to request the Commission to appoint a special adjudicatory employee “when necessary.”
Id
. at 545. The Commission believes that presiding officers can also resolve other questions concerning the designation of SGI, such as those arising in discovery disputes between parties. If a presiding officer believes that he or she could benefit from expert assistance in determining whether information meets the definition of SGI, he or she can request the Commission to appoint a special adjudicatory employee, who will assist the Board in making such determinations.

As for the suggested change to the definition of “Safeguards Information” in part 2, the proposed definition is based on Section 147 of the AEA and the Commission has determined that the definition of that term in the regulations should be as broad as the statutory definition. Based on this definition, §§ 73.21, 73.22, and 73.23 describe types of information included within the scope of the statutory definition and include examples of information designated as SGI. The Commission believes that a cross-reference to those provisions in the definition of SGI is unnecessary.

Comment:
An agreement state commenter objects to the abuse of discretion standard in proposed §§ 2.709(f)(1)(iv) and 2.1010(b)(6)(i)(D)
6

for review by a presiding officer
7

in adjudications of adverse trustworthiness and reliability determinations by the NRC Office of Administration. The commenter prefers that such determinations be given “plenary” review,
8

and gives the following four reasons for its position:

6
Sections 2.336(f)(1)(iv), 2.704(c)(3)(iv), 2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D) are mirror provisions of one another, with slight differences due to the different contexts in which they are applied.

7
In licensing proceedings, the presiding officer will ordinarily be an Atomic Safety and Licensing Board. 10 CFR 2.4.

8
The Commission believes that by “plenary” review the commenter means
de novo review
, in which a determination is reviewed without

deference to the decision-maker. By contrast, review for abuse of discretion involves deference to the determination being reviewed.

(1) On contested matters, the NRC staff's safety evaluations are subject to “plenary” review, not review for an abuse of discretion, so the NRC staff's trustworthiness and reliability determinations should also be subject to “plenary” review. Both categories of issues often involve matters of judgment and there is, therefore, no basis to distinguish between them.

(2) Because the Commission itself has “plenary” power over its staff, limiting the scope of presiding officer review will merely lead to an unnecessary and time-consuming proliferation of appeals to the Commission to exercise its “plenary” power.

(3) The abuse of discretion standard confuses the roles of an adversary party and an independent adjudicator. Under the Administrative Procedure Act (APA) and Atomic Energy Act of 1954, as amended (AEA), the Commission may delegate adjudicatory decision-making authority to a presiding officer and define the scope of Commission review of that presiding officer's decision in a narrow fashion. When the NRC staff participates as a party in an adjudicatory proceeding, it is not performing an adjudicatory function but a litigating function, and therefore there is no basis to limit the scope of review of any NRC staff decision. There will always be a concern that the NRC staff's trustworthiness and reliability determinations will be part of its litigating strategy, and this concern can be addressed only if the presiding officer or the Commission may exercise “plenary” power to reverse the staff determination.

(4) The abuse of discretion review standard does not comply with Section 181 of the AEA, which “requires NRC standards to be the ‘minimum impairment of the procedural rights which would be available if * * * safeguards information * * * were not involved.' ” The commenter believes that an abuse of discretion standard is not a minimum impairment.

Response:
The Commission believes that an abuse of discretion standard is appropriate for presiding officer review in adjudications of adverse trustworthiness and reliability determinations made by the Office of Administration. The Commission chose the abuse of discretion standard primarily because trustworthiness and reliability determinations rely upon expertise developed through training and experience. Office of Administration employees who make these determinations possess specialized training and experience in evaluating similar information for NRC employee security clearances. Because of the Office of Administration's expertise, the Commission believes that the office's trustworthiness and reliability determinations will generally be sound. A searching,
de novo
review by the presiding officer, therefore, would not be warranted. A presiding officer review of adverse trustworthiness and reliability determinations under an abuse of discretion standard will not involve witness testimony or other procedures that might arguably put the presiding officer in a better position to assess the evidence underlying a trustworthiness and reliability determination.
9

9
To be clear, the Commission does not believe that setting up a “mini-hearing” within a hearing by taking witness testimony and using other trial-type procedures is justified to resolve what is, at heart, a discovery dispute over whether certain individuals in a party's litigation team can have access to SGI.

The following four numbered paragraphs respond in order to the four numbered reasons given in the comment above:

(1) The commenter's comparison of the review of Office of Administration trustworthiness and reliability determinations to the review of staff safety evaluations is invalid. The commenter is mistaken in stating that the staff's safety evaluations are subject to review in contested licensing proceedings. Well-established Commission precedent provides that the license application, and not the staff's safety review, is the subject of a contested licensing proceeding.
10

10
“Final Rule, Changes to Adjudicatory Process,” 69 FR 2182, 2202 (Jan. 14, 2004) (stating that “[t]he adequacy of the applicant's license application, not the NRC staff's safety evaluation, is the safety issue in any licensing proceeding, and under longstanding decisions of the agency, contentions on the adequacy of the SER [Safety Evaluation Report] are not cognizable in a proceeding”).

(2) The Commission does not believe that a limited scope of presiding officer review will lead to a proliferation of appeals to the Commission. First, most Commission adjudicatory proceedings do not involve access to SGI, and there is no evidence to indicate that proceedings involving SGI will often lead to disputes over trustworthiness and reliability determinations. Second, the Commission does not agree that the level of presiding officer review of adverse trustworthiness and reliability determinations will have an effect on the number of appeals to the Commission. Moreover, the commenter has submitted no evidence indicating that an increase in appeals is likely.

The commenter also asserts that a limited scope of review by the presiding officer is unnecessary and time consuming because the Commission has “plenary” power over the NRC staff, which is being read to mean that the Commission can review NRC staff decisions
de novo,
without giving deference to them. The commenter's position appears to be based on a belief that the Commission on appeal would often, or always, exercise
de novo
review of the Office of Administration's adverse trustworthiness and reliability determinations, and that it would, therefore, make more sense to have
de novo
review exercised at the presiding officer level since
de novo
review is inevitable at some point. This position, however, overlooks that the Commission does not exercise
de novo
review in many situations,
11

and there is no reason to believe that the Commission will often, or always, exercise
de novo
review of adverse trustworthiness and reliability determinations. The Commission is, in fact, expressing with this rulemaking its judgment that trustworthiness and reliability determinations made by the Office of Administration warrant the deference that is reflected in the abuse of discretion standard.

11
See
e.g., Private Fuel Storage, L.L.C.
(Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 411 (2005) (stating that the standard for overturning a factual finding of the Board is the “quite high” standard of “clear error”);
Duke Energy Corp.
(Catawba Nuclear Station, Units 1 and 2), CLI-04-21, 60 NRC 21, 27 (2004) (stating that Board evidentiary rulings are subject to an abuse of discretion standard).

(3) The Commission does not agree with the commenter that an abuse of discretion standard for review of adverse trustworthiness and reliability determinations confuses the role of an adversary with an independent adjudicator. Although the Office of Administration is an office within the NRC staff and the NRC staff is a party to the litigation, the Office of Administration, itself, will have no interest in the outcome of the litigation. In making trustworthiness and reliability determinations, the Office of Administration will be exercising a purely administrative function. This is the same type of function that the Office of Administration regularly exercises in making determinations on employment clearances and access authorizations. Also, unlike private entities that serve private interests, the NRC staff serves the public interest and has a duty to ensure compliance with the Commission's regulations. There is, therefore, no basis to believe that the Office of Administration's

determination on trustworthiness and reliability will be improperly influenced.

It also appears that the commenter is suggesting that an “abuse of discretion” standard for Office of Administration trustworthiness and reliability determinations is contrary to the APA and the AEA, but points to no specific provision of either the APA or the AEA that supports such a position. The Commission is not aware of any provision of the APA or the AEA that forbids an “abuse of discretion” review standard or that forbids deference to an administrative determination.

(4) The Commission disagrees with the commenter's assertion that an “abuse of discretion” review standard for trustworthiness and reliability determinations violates the “minimum impairment” requirement in Section 181 of the AEA. Section 181 of the AEA does not apply to the scope of review for adverse trustworthiness and reliability determinations. The impairments referred to in Section 181 are impairments of procedural rights
that would be available if the proceeding did not involve SGI,
or in other words, procedural rights that are normally available in a proceeding. An example of how the SGI rule impacts normally available procedural rights can be found in the context of discovery in adjudications. In discovery, a party has a normally available procedural right to information available under the rules of discovery. The requirement that an individual be found trustworthy and reliable to access SGI is an impairment of this normally available procedural right whenever a party is seeking discoverable information designated as SGI. In such circumstances, the party faces an additional hurdle (meeting the trustworthiness and reliability requirement) that would not be faced if the proceeding did not involve SGI. The trustworthiness and reliability requirement, however, is the minimum impairment necessary to protect SGI and complies with Section 181.

The process for making trustworthiness and reliability determinations, and the review standard for adverse determinations, are not impairments of normally available procedural rights but, rather, components of a process intended to produce sound trustworthiness and reliability determinations. The only normally available procedural right that might be at issue here is the right to access discoverable information, but the trustworthiness and reliability requirement is the impairment of that right, not any subsequent adjudicatory review procedures. As a general matter, review of a determination is provided because of the possibility that the determination was erroneous or otherwise improper. The standard for review and the procedures attendant to review are matters for Commission judgment and are based upon the nature of the determination, its importance, and the likelihood that the determination may be erroneous or improper, among other factors. In the case of trustworthiness and reliability determinations in adjudications, the Commission has decided that the procedures provided in §§ 2.336(f)(1)(ii)-(iv) and 73.57(e) are appropriate to provide for sound trustworthiness and reliability determinations in a manner consistent with conducting reasonably expeditious proceedings.

Comment:
An agreement state commenter believes that the fifteen-day deadline for presiding officer decisions on challenges, in adjudicatory contexts, to adverse trustworthiness and reliability determinations is not reasonable because the NRC staff will not commit to any reasonable deadline for its own determination.

Response:
The Commission is not lengthening the fifteen-day period in §§ 2.336(f)(1)(iv), 2.704(c)(3)(iv), 2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D) for presiding officer decisions on challenges to adverse trustworthiness and reliability determinations. The presiding officer will not be conducting a trial-type hearing and will not be performing a searching,
de novo
review of the evidence. Rather, the presiding officer will be reviewing for abuse of discretion and will base this review on a record compiled by the Office of Administration as supplemented by one round of pleadings from the parties. The Commission believes that fifteen days is sufficient time for this review and that providing a longer period would unnecessarily delay proceedings without a compensating benefit.

The commenter's analogy relating the time needed for the presiding officer's decision to the time needed for the initial determination by the NRC staff's Office of Administration's is not apt. In order to make its decision, the Office of Administration must first collect information that originates from a variety of sources. This process takes time, and the speed of information collection depends upon the time taken by the providers of the information. As explained in the preceding paragraph, a presiding officer's review of an adverse trustworthiness and reliability determination would involve review only for an abuse of discretion and would not involve the presiding officer independently gathering information for that determination.

Comment:
An agreement state asserts that if the Commission were unwilling to entertain appeals of presiding-officer-reviewed access determinations on a timely basis, the proposed changes to part 2 would lead to a denial of parties' rights to a fair hearing and the assistance of counsel. The commenter asserts that lack of timely Commission review would give the NRC staff, as a party in an adjudicatory hearing, broad discretion to deprive an opposing party of both expert witnesses and legal counsel needed to present its case. According to the commenter, this situation would be a violation of Section 555 of the APA, 5 U.S.C. 555.

Response:
To the extent the comment reflects a concern about the availability of Commission review of access determinations arising in the pending high-level waste (HLW) Pre-License Application Presiding Officer proceeding or any subsequent adjudication regarding the expected application by the Department of Energy for a construction authorization for a HLW repository, the comment overlooks the appeal process available pursuant to 10 CFR part 2, subpart J. The current § 2.1015(b) contemplates prompt appeals to the Commission of certain presiding officer orders; under the final SGI rule's revisions to § 2.1010, such appealable orders would include rulings concerning whether SGI should be disclosed, as well as related rulings upon review of adverse determinations with respect to trustworthiness and reliability. In addition, the Commission has published a final rule
12

that provides for interlocutory review of comparable SGI-related rulings in other adjudicatory proceedings. Moreover, the Commission already has general discretionary authority to review presiding officer actions on its own motion or in response to appropriate review requests under § 2.341. In short, the available means of appellate review demonstrate the Commission's authority to ensure consistency and fairness in adjudicatory proceedings.

12
Final Rule, Interlocutory Review of Rulings on Requests by Potential Parties for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information, 73 FR 12627 (March 10, 2008).

The Commission also disagrees with the comment's characterization of the NRC staff's “discretion” with respect to access determinations that may affect the hearing process. Staff determinations on a requestor's trustworthiness and reliability are part of the agency's statutory responsibility to protect SGI and are not determined

by the views of the staff in its capacity as a party to a proceeding. The staff's independent obligations with respect to trustworthiness and reliability determinations thus do not result in adjudicatory staff “discretion” to prevent SGI access by other parties. Accordingly, the functional and appellate framework described above would protect against possible violations of section 555 of the APA regarding the rights of persons compelled or permitted to appear in person or by representative in agency proceedings.

Comments concerning sanctions for violating SGI protective orders in adjudications.

Comment:
A commenter states that the provisions concerning civil penalties are appropriate for violations that involve the disclosure of SGI that by order is prohibited from being disclosed, but that violations of orders requiring disclosure of SGI should be subject only to the same penalties that would apply for violations of orders requiring disclosure of other types of information. The commenter believes that the regulation regarding the potential for civil penalties for violation of an order should be clearly limited to disclosure of SGI in violation of provisions of an order that are imposed for the purpose of preventing unauthorized disclosure of SGI. The commenter suggests revising proposed §§ 2.336(f)(5), 2.705(c)(6), 2.709(f)(5) and 2.1010(b)(6)(v) to state: “In addition to any other sanction that may be imposed by the presiding officer for violation of an order issued pursuant to this paragraph, disclosure of Safeguards Information in violation of limitations on such disclosure in an order pertaining to the disclosure of Safeguards Information may be subject to a civil penalty imposed under § 2.205.”

Response:
The purpose of this rule is to impose requirements for SGI to protect that information from unauthorized disclosure.
See
§ 73.1(b)(7). The Commission agrees with the commenter that the failure to disclose SGI in violation of an order does not implicate provisions for the protection of SGI. The Commission also agrees that the proposed rule as written might be read to cover such a violation. Violating an order by not disclosing SGI should be treated the same as violating an order by not disclosing other types of information. The commenter's proposed text, however, would make only acts of disclosure subject to civil penalties under § 2.205. The Commission intends that the violation of
any
provision for the protection of SGI in an order be subject to civil penalties, whether those provisions apply to the act of disclosure or not. Therefore, § 2.336(f)(5) in the final rule has been modified to read as follows: “In addition to any other sanction that may be imposed by the presiding officer for violation of an order issued pursuant to this paragraph, violation of a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order may be subject to a civil penalty imposed under § 2.205.” Conforming changes have also been made to §§ 2.705(c)(7) (2.705(c)(6) in the proposed rule), 2.709(f)(5), and 2.1010(b)(6)(v).

Comment:
A commenter asserts that any provision concerning potential criminal penalties for violation of an order concerning disclosure of SGI should clearly state that any such penalty would be based on disclosure of SGI in violation of an order imposing limits on such disclosure. The commenter believes that it should be clear that the criminal penalty provisions would not apply to violations of orders of presiding officers that impose obligations or limitations other than limitations imposed for the purpose of preventing disclosure of SGI to unauthorized persons. The commenter suggests revising proposed §§ 2.336(f)(6), 2.705(c)(7), 2.709(f)(6) and 2.1010(b)(6)(vi) to state, “For the purpose of imposing the criminal penalties contained in Section 223 of the Atomic Energy Act of 1954, as amended, a limitation on the disclosure of Safeguards Information included in any order issued pursuant to this paragraph is considered to be an order issued under Section 161b of the Atomic Energy Act.”

Response:
As with civil penalties, the Commission agrees that the rule text should clearly state that application of criminal penalties in Section 223 of the Act is limited to violations of those provisions regarding the protection of SGI. However, as explained in the preceding response, the rule text should be broader than suggested by the commenter. Accordingly, § 2.336(f)(6) has been modified to read: “For the purpose of imposing the criminal penalties contained in Section 223 of the Atomic Energy Act of 1954, as amended, a provision for the protection of Safeguards Information from unauthorized disclosure that is contained in an order issued pursuant to this paragraph is considered to be issued under Section 161b of the Atomic Energy Act of 1954, as amended.” Conforming changes have also been made to §§ 2.705(c)(8) (2.705(c)(7) in the proposed rule), 2.709(f)(6), and 2.1010(b)(6)(vi).

Part 30: Rules of General Applicability to Domestic Licensing of Byproduct Material.

Sections 30.32(j) and 30.34(j).

Comment:
One commenter questions the clarity of the rule text in proposed §§ 30.32 (j) and 30.33(j) pertaining to the applicability of the requirements in §§ 73.21 and 73.23 to byproduct material applicants and licensees. The commenter states that he had difficulty determining whether his “processes” would be subject to these regulations. The commenter also asserts that an appendix should be created to specifically list the amounts of byproduct material that would trigger the regulatory requirements. He recommends revising §§ 30.32(j) and 30.34(j) to refer to the appendix for determining parties subject to the regulation. According to the commenter, the same appendix could also be used to define the RAMQC amounts in a separate table.

Response:
The proposed rule (October 31, 2006; 71 FR 64050) explains that Appendix I to 10 CFR part 73—”Category 1 and 2 Radioactive Materials,” is a table of radionuclides and quantities that establishes the “quantities of concern” referenced in the proposed rule.
13

13
The table has been used to determine the types and quantities of radioactive materials that warrant additional security requirements, some of which have already been imposed by order.

In response to this comment, the Commission is adding the definition of “quantities of concern” in § 30.4. This definition is identical to the definition of that term in the § 73.2 definitions. The definition states that “quantities of concern” means “the quantities of radionuclides meeting or exceeding the threshold limits set forth in Table 1 of Appendix I of this part.” (71 FR 64060). This change should assist licensees, applicants, and other persons subject to part 30, to determine which of their activities are subject to the SGI designation and protection requirements of part 73.

Part 73: Physical Protection of Plants and Materials.

Section 73.2 Definitions.

Comment:
A commenter states that a definition is needed of the term “safe havens” as used in §§ 73.22(a)(2)(iv) and 73.23(a)(2)(iii). The commenter recommends that the definition be included in § 73.2.

Response:
A “safe haven” along a highway transportation route is used for temporary refuge or emergency assistance. Safe havens should be as

close to the highway as possible, easily accessible by the transportation vehicle, controlled, and well-lighted. Examples of possible “safe havens” include truck stops, rest areas, highway patrol barracks, and weigh stations. Having explained this, the Commission does not believe it necessary to include a definition of “safe havens” in the rule.

Comment:
A commenter states that the definition of the term “Safeguards Information” in § 73.2 is too broad, specifically with reference to the phrase “control and accounting procedures.” The commenter recommends changing the definition of SGI to delete the reference to “control and accounting procedures.” According to the commenter, there is no information in the proposed rule that provides any “qualifying details” on that term. The commenter believes that based solely on the proposed definition, the phrase “control and accounting procedures” could be interpreted to be applicable to: (a) The “control procedures” associated with the placement of special nuclear material (SNM) in pools or other onsite spent fuel storage facilities; and (b) accounting procedures regarding the quantity of SNM maintained by a licensee. In the commenter's view, the NRC intent is that information about the physical protection of SNM must be controlled as SGI. The commenter also states that the NRC staff intends power reactors to control SNM in accordance with American National Standards Institute (ANSI) N15.8, Nuclear Material Control Systems for Nuclear Power Plants. According to the commenter, as a national standard, the ANSI document cannot be controlled as SGI. Also, the commenter states the understanding that the NRC staff intends to endorse the national standard in a Regulatory Guide for licensee use and that licensees will use the standard to revise their site procedures to comply with NRC guidance.

Response:
In the revised proposed rule (October 31, 2006; 71 FR 64012) the Commission addressed a comment on the original proposed rule (February 11, 2005; 70 FR 7196) regarding the meaning of the term “control and accounting procedures,” as applied to four specific types of information. The Commission's response provided “qualifying details” as to the meaning of the term by noting, among other things, that the term does not encompass the four categories of information specified in the comment, including the written directions for transferring fuel between the fuel pool and the reactor. (71 FR 64012).

The Commission is providing the following additional information in response to this comment. The terms “material control and accounting” have meaning with respect to the protection of special nuclear material. “Material control” means the use of control and monitoring measures to prevent or detect loss when it occurs or soon afterward. “Material accounting” is the use of statistical and accounting measures to maintain knowledge of the quantities of SNM present in each area of a facility. It includes the use of physical inventories and material balances to verify the presence of material or to detect the loss of material after it occurs, in particular, through theft. In the definition of “Safeguards Information” in § 73.2 in the final rule, the term “control and accounting procedures” is linked to the physical protection of special nuclear material “in quantities determined by the commission through order or regulations to be significant to the public health and safety and the common defense or security.”

Accounting procedures regarding the quantity of SNM maintained by a licensee would not necessarily constitute SGI. However, when coupled with other information, information containing the quantities of SNM could be SGI and would be designated and handled as such. Because Section 147 of the AEA authorizes the Commission to protect information that specifically identifies the control and accounting procedures used to protect special nuclear material, the Commission is not deleting this term from the definitions of SGI in the regulations. The information the commenter provides about the endorsement of an ANSI standard in a regulatory guide for licensees use does not constitute a basis for deleting the term “control and accounting procedures” from the definition of SGI.

Section 73.21(a)(1).

Comment:
According to a commenter, an order issued October 4, 2006 required USEC Inc. Lead Cascade Demonstration Facility and American Centrifuge Plant to implement specific SGI-M requirements to ensure proper handling and protection of SGI to avoid unauthorized disclosure. The commenter states that § 73.21(a)(1)(i) conflicts with the previous order by requiring uranium enrichment facilities to modify their protection strategy from SGI-M to SGI. This provision, in the commenter's opinion, imposes an unnecessary regulatory burden without providing commensurate benefit, and could result in the two facilities being governed by different SGI handling requirements even though they are located within the same physical boundary and will ultimately share common infrastructure.

Response:
An order issued on October 4, 2006, and published in the
Federal Register
on October 24, 2006 (71 FR 62318), required the United States Enrichment Corporation (USEC) to protect certain information relating to its uranium enrichment test and demonstration facility (Lead Cascade Facility). Specifically, the order required USEC and other persons to employ the modified handling requirements for SGI-M relating to the interim measures to enhance security at the Lead Cascade Facility. As reflected in § 73.21(a)(1), the Commission later determined that the type of information described above should be subject to the requirements for SGI. Interim security measures relating to the other facility located onsite with the Lead Cascade Facility (the American Centrifuge Plant) are also designated as SGI. Therefore, there is no longer a discrepancy with respect to the information protection requirements for the two facilities.

Radioactive Material in Quantities of Concern (RAMQC) Sections 73.21(a)(1)(ii) and 73.23.

Comment:
Two commenters addressed implementation of SGI-M requirements for the “new” Category 2 RAMQC specified in Table I-1, “Quantities of Concern Thresholds.” One commenter stated that the SGI-M designation should not be applied to Category 2 materials for industrial radiography and oil well logging facilities that routinely ship material to temporary job sites on a daily basis. The commenter asserted that requiring an SGI-M program for the routine transport of sources used by those licensees would be unwieldy and almost impossible to administer. The commenter recommended that the requirement for an SGI-M program should be limited to the original regulatory intent, that is, for the transportation of Category 1 sources.

According to another commenter, applying SGI-M handling requirements to Category 2 radioactive materials quantities of concern (Category 2 RAMQC) materials most likely will introduce the requirements for SGI security to a wide set of organizations that have little experience with these requirements. The commenter further asserted that the introduction of SGI requirements may unintentionally result in the disruption of treatment for patients, as shippers of these materials may be intimidated by the new security regulations. In this commenter's opinion, extending SGI-M requirements to new Category 2 RAMQC should await more discussions and understanding of

the impact this may have on commerce and specifically medical radioactive material shipments. The commenter believes that the capability of shippers to meet these requirements would certainly benefit from Department of Homeland Security (DHS) initiatives in progress, such as the Transportation Worker Identification Credential (TWIC). Also, the commenter states that for the transportation of Category 2 RAMQC, the proposed regulations would require segregation of a portion of the shipping documents and a cover indicating that the segregated portions contain SGI. This would add confusion to the shipping documentation and could be counterproductive to security as it will highlight information that may otherwise be dispersed throughout the shipping documents.

The commenter asserts that shipment of RAMQC often requires the coordination of multiple carriers and modes of transportation to provide timely delivery. According to the commenter, it is unclear how the originator of a RAMQC Category 2 will be able to assure that each carrier meets the requirements to handle SGI-M. The commenter concludes that the determination must be made at each step of the custody of such RAMQC shipments, with the possible result being a shipment being delayed or stopped from its intended destination.

Response:
The Commission has determined that information relating to the transportation of Category 2 RAMQC need not be protected as SGI-M and may be shared on a “need-to-know” basis. The text in §§ 73.21(a)(1)(ii) and 73.23 has been changed accordingly.

Sections 73.22(a)(1)(xii) and 73.23(a)(1)(x)
.

Comment:
A commenter proposes that engineering and safety analyses need to be linked to security just as the other items described in proposed §§ 73.22(a)(1) and 73.23(a)(1). Therefore, the commenter concludes that §§ 73.22(a)(1)(xii) and 73.23(a)(1)(x) should be revised to state “Engineering and safety analyses related to physical protection,* * *”

Response:
This change is not necessary because the limitation the commenter seeks is already set forth in §§ 73.22(a), 73.22(a)(1), 73.23(a) and 73.23(a)(1). In sum, these provisions specify the relevant information as “security-related” or “related to physical protection.” Therefore, it is not necessary to repeat that language in §§ 73.22(a)(1)(xii) and 73.23(a)(1)(x).

Sections 73.22(a)(2)(iv) and 73.23(a)(2)(iii).

Comment:
A commenter urges that the reference to safe haven in §§ 73.22(a)(2)(iv) and 73.23(a)(2)(iii) be removed and a separate paragraph added in §§ 73.22(a)(2) and 73.23(a)(2) which states “safe havens identified along the transport route.”

Response:
In response to this comment and in light of the description of “safe haven” earlier in this Notice, the Commission is modifying the language in §§ 73.22(a)(2)(iv) and 73.23(a)(2)(iii) to read “safe havens identified along the highway transportation route.” However, the Commission sees no reason to move that language into separate paragraphs in §§ 73.22(a)(2) and 73.23(a)(2).

Comment:
A commenter notes that some States require a carrier of radioactive materials to give advance notice to local law enforcement prior to crossing the State border and at other times in transit. The commenter interprets the wording of the proposed regulation to mean that shippers could not use two-way radio or cellular phones currently used to make these communications. In this commenter's view, developing a secure alternative method of communication would be an unwarranted burden on the licensees, carriers and local law enforcement. The commenter believes that §§ 73.22(a)(2)(iv) and 73.23(a)(2)(iii) should be modified so in-route communications between transport vehicles and local-law enforcement agencies need not be controlled as SGI.

Response:
The wording of the provisions cited above does not prohibit shippers from using two-way radios or cellular phones to communicate with local law enforcement during transit. Section 73.23(a)(2)(ii) states that “[s]cheduling and itinerary information used for the purpose of preplanning, coordination, and advance notification may be shared with others and need not be designated as Safeguards Information Modified-Handling.”

Sections 73.22(b)(2) and 73.23(b)(2).

Comment:
A commenter asserts that the conditions for access to SGI are unclear in this provision because of the phrase “or other means approved by the Commission.” Therefore, the commenter concludes that this phrase should be deleted from the regulation until the Commission is prepared to give specific requirements, which should be given by rule rather than regulatory guidance.

Response:
The language in question is found in §§ 73.22(b)(2) and 73.23(b)(2), which address, as a condition for access to SGI, a finding that a person is trustworthy and reliable, based on a background check or other means approved by the Commission. This provision is consistent with the Commission's authority under Section 149 of the AEA to relieve, by rule, persons from the obligations imposed by that section, under specified terms, conditions, and periods, if the Commission finds that such action is consistent with its obligations to promote the common defense and security and to protect the health and safety of the public. Relying on that authority, the Commission could, by rule, relieve persons from the criminal history records check requirement included in a background check to determine a person's trustworthiness and reliability for access to SGI. If the Commission determines that a rule change would be useful to specify means other than a criminal history records check for establishing an individual's trustworthiness and reliability, a rulemaking proceeding would be initiated.

However, notwithstanding the Commission's obligation to relieve persons from criminal history records checks only by rule, the phrase “other means approved by the Commission” is intended to maintain flexibility in modifying the other aspects of the background check for unique circumstances. As it has learned from past experience, in some limited circumstances, the Commission might have to impose additional measures to the background check requirements to increase assurances of trustworthiness and reliability. While in others, it may be appropriate for the Commission to relax certain aspects of the background check. Without such a relief provision built into the rule, the Commission would not, absent a rulemaking, be able to make such deviations.

Section 73.22(c)(2).

Comment:
A commenter requests deletion of the proposed requirement that SGI must be stored in unmarked cabinets. The following bases are offered for this request: Unmarked cabinets containing SGI would be obvious because they would be the only locking GSA-approved cabinets in the security organization area at the average power reactor site; such a requirement would not permit the use of NRC-required brightly colored mnemonic aids to verify that the SGI cabinet is locked; and any visitors to the area are usually escorted so the risk is minimal. Accordingly, the commenter concludes that § 73.22(c)(2) should be modified to delete the unmarked storage container requirement.

Response:
The issue of marking storage cabinets to indicate the presence of SGI was raised in a previous comment on the original proposed rule. For the reasons stated in responding to

this comment on the original proposed rule (October 31, 2006; 71 FR 64020), the NRC is not adopting the change advocated. However, the Commission notes that prohibiting that marking on such cabinets does not, as the commenter asserts, preclude the use of “brightly colored mnemonic aids” to indicate that the cabinet is locked.

Section 73.22(d)(1).

Comment:
A commenter notes that the NRC did not “adopt” a previous comment that the marking of SGI documents in the proposed rule is too prescriptive. The commenter seeks revision of the rule to clarify that a licensee has the flexibility to have the specified information in § 73.22(d)(1)(i)-(iii) on the top of the document, whether that is the first page, a cover sheet or a binder cover of the document. The commenter proposes, as an alternative, modifying the regulation so documents produced prior to the implementation date of the rule can be marked according to the requirements in the licensee's SGI program at the time.

Response:
This comment was previously made on the first proposed rule and a response was provided (October 31, 2006; 71 FR 64020). The commenter has not provided any new information in this comment to warrant a change in the Commission's position. However, in the previous response, the Commission noted that it “does not expect that licensees or applicants must go back and mark documents for which a cover sheet was used for the required information instead of the first page of the document as set forth in § 73.22(d)(1).” To that extent, the Commission has adopted the alternative the commenter proposed.

Sections 73.22(g)(1) and 73.22(g)(2).

Comment:
In one commenter's view, the provisions on the use of various storage media when processing SGI on a computer and limitations on computer locations are too restrictive. This commenter requests that § 73.22(g)(2) be modified to allow external storage media to be used as long as the media are properly controlled and the removable storage medium is locked away when not in use. Also, the commenter recommends that the rule should allow computers used to process SGI to be located in controlled access areas when unattended by a person authorized access to SGI, as long as the computers have password protection.

Response:
In keeping with standard computer security practices and in response to the above comment, the text in § 73.22(g)(1) has been changed to provide that SGI may be stored, processed, or produced on a password protected stand-alone computer (or computer system). In addition, the Commission modified § 73.22(g)(2) to provide that computers not located within an approved and lockable security storage container must have removable storage media with a bootable operating system. Corresponding changes are made throughout this section to substitute “storage media” for “storage medium.” Thus, data may be processed and saved on the same removable storage media. An additional restriction was also added as § 73.22(g)(4) (with a conforming change to § 73.23(g)(4)) to require that electronic systems used to store, process, or produce Safeguards Information must be free of recoverable Safeguards Information prior to being returned to nonexclusive use.

Sections 73.22(h) and 73.23(h).

Comment:
Several commenters recommend removing the ten-year review requirement asserting that it would consume resources with no commensurate benefit to public health and safety. One commenter states that licensees currently review SGI documents as they are being used for possible decontrol and that this process has been effective in allowing licensees to make the appropriate determinations.

Another commenter makes more detailed assertions about the relative costs and benefits of the ten-year review requirement. On the costs side of the equation, the commenter states that according to a 2005 NEI survey, power reactor sites have an average inventory of 2,293 SGI documents, with another 235 being produced each year. In ten years' time, the commenter believes there would first need to be a sort through the accumulated 4,643 SGI designated documents to find the 2,293 SGI documents ten years or older, and then a review of these 2,293 documents for a decontrol determination. On the benefits side of the equation, the commenter asserts that this review requirement would not lead to greater public disclosure of documents because licensees, unlike the public sector, have no obligation to publicly release documents.

This commenter asserts that performing such a review is an error-prone operation that could lead to second-guessing by NRC inspectors. This commenter also asserts that the ten-year review could consume NRC resources. The commenter believes that organizations would ask the NRC to make decontrol determinations for many SGI-designated documents for which the individual who made the original determination is unavailable. Other individuals in the organization would not likely make the decontrol determinations in these situations because of a hesitancy to second guess the individuals who originally designated the document as SGI.

Response:
The Commission accepts the commenters' suggestion to remove the ten-year review requirement from the rule because the review would require an expenditure of resources not commensurate with the benefits. As set forth in more detail below, the costs would include cataloguing all SGI documents in a holder's inventory, reviewing a portion of them for possible decontrol every ten years, and communicating decontrol determinations to other holders of the document. It should be noted that although cataloguing SGI-designated documents would be necessary as a practical matter under the ten-year review requirement, there exists no similar cataloguing requirement for documents containing Classified National Security Information. For the period 2008-2018, the estimated costs of the review would total $2.5 million dollars for all regulated entities.
14

14
Costs are in 2007 dollars assuming a 7% Discount Rate for the period 2008-2018.

The benefits, however, are slight because there would be very few documents decontrolled in the review process. As described in more detail below, few SGI-designated documents ten years or older are in current use, so not many would be reviewed. Of those that would be reviewed, many would still be considered to contain SGI and would therefore not be decontrolled. Even for the few SGI-designated documents that would be decontrolled, there is no requirement for licensees and other private entities to make those public. Some decontrolled documents, however, might also be in the hands of the NRC, which could make the documents public as long as the documents were not otherwise withheld under § 2.390. The few documents likely to be made public by the review does not justify the expense.

However, the Commission is retaining the requirement, also in the current rules, that SGI-designated documents no longer falling within the SGI category have their SGI designations removed. This would mean that users of SGI-designated documents that no longer meet the definition of SGI would have to remove the designation. This requirement applies to SGI documents of any age.

The ten-year review requirement is contained in the following three sentences from proposed § 73.22(h): “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 ten years. Documents that are ten years or older and designated as SGI or SGI-M shall be reviewed for a decontrol determination if they are currently in use or removed from storage.” A nearly identical version of this requirement was in proposed § 73.23(h).

The first sentence in proposed § 73.22(h), which is being retained in the final rule, generally requires the decontrol of SGI-designated documents that no longer fit within the SGI category and is substantially identical to the requirement in the prior version of § 73.21(i). The second and third sentences in proposed § 73.22(h), which have not been retained in the final rule, would have required holders of SGI to conduct a special review every ten years of SGI-designated documents that are ten years or older and also in current use. As a practical matter, complying with the ten-year review requirement would have first involved the cataloguing of all SGI-designated documents so that the documents could be located for the review and so that it could have been determined which documents were ten years or older at the time of the review. Then, at ten-year intervals, the subset of SGI-designated documents ten years or older and in current use would have been reviewed for a possible decontrol determination. A smaller subset of these reviewed documents would then have been decontrolled by the licensee. Some of these decontrolled documents would also have been in the possession of other persons or the NRC, and these other holders would have to have been informed about the decontrol determination.

How such a process would proceed in practice can be illustrated with the 64 power reactor sites covered by § 73.22, using the numbers referenced by one of the commenters. A 2005 NEI survey showed that power reactor sites had an average of 2,293 SGI documents per site and 235 were created each year.

Assuming that the first ten-year review would occur in 2008, there would then be about 3,000 SGI documents at each site. All of these documents would need to be catalogued. Only a portion of these would be ten years old, however, and it is assumed that about half of the 2,293 documents were created since September 11, 2001, because of increased security concerns. A reasonable estimate is that there will be about 900 SGI-designated documents per site that are ten years or older (that is, created prior to 1998).

Of these 900, however, very few that are ten years or older would likely be in current use, with a reasonable estimate being about 10 percent. With this estimate, only about 90 documents would make it to the review process. Of these 90 documents in current use, the fact that they are in current use makes it more likely that they still contain SGI. Assuming that 20 percent of the reviewed documents are decontrolled, only about 18 documents that were once designated as SGI would be decontrolled. Assuming that the NRC possesses half of those decontrolled documents, the 2008 review would result in possibly 9 SGI-designated documents per power reactor site being made public.

In 2018, the second ten-year review would be conducted of SGI-designated documents created prior to 2008. More documents will have been added to the total inventory, but many will have been retired. Assuming that very few documents 20 years or older are likely to exist, the Commission believes that there could be as many as 2,300 SGI-designated documents per power reactor site that are ten years or older in 2018.
15

Applying the assumptions used above yields 230 documents requiring a review, with about 46 documents being decontrolled, and with possibly 23 documents per site being made public on the NRC ADAMS system. It must be noted that the number of documents projected as being decontrolled by this process might be overstated because, prior to the ten-year review, SGI-designated documents in current use would be decontrolled if the user recognizes that the document no longer contains SGI.

15
It might be the case, however, that many of these 2300 SGI-designated documents would be destroyed, pursuant to the requirements of §§ 73.22(i) and 73.23(i) in the final rule, because they would be no longer needed.

On top of the initial task of cataloguing documents and the reviews required every ten years, documents would have to be added to the catalog as they were being created, which would be about 235 per year for each power reactor site. This is another cost that must be considered. Finally, one must consider costs to holders of SGI other than the power reactors. These costs are relatively minor compared to the 64 power reactor sites but are included in the calculations.

The numbers clearly show that cataloguing is the overwhelming factor for costs because of the large number of documents involved. The entire initial cataloguing cost for all entities is estimated to be $1.6M dollars and the entire annual cataloguing cost is estimated at $110K dollars. The entire cost of performing the 2008 review is estimated to be $100K dollars, which includes review of the selected documents, communication of decontrol determinations to other holders of the decontrolled documents, and NRC action on these communications. The entire cost of performing the 2018 review is estimated at $270K dollars. To put the costs and benefits in perspective, useful measures to look at are the cost per decontrolled document and the cost per document possibly made public by the NRC. For power reactors as of the 2018 review, the estimated cost per decontrolled document is about $750 and the estimated cost per document possibly made public by the NRC is about $1500.
16

In light of the preceding analysis, the Commission believes that the costs of performing this review do not justify the benefits and is removing the ten-year review requirement from the rule.

16
It is appropriate to consider only power reactors here because the overwhelming majority of SGI documents in the possession of private entities are possessed by power reactors. Therefore, power reactors bear the overwhelming majority of the review's costs.

A possible modification to the ten-year review requirement involving a review every ten years of all SGI documents ten years or older would also not justify retention. If the ten-year review encompassed all SGI documents older than ten years, those in current use as well as those that are not, the cataloguing costs would remain, but the reviewing costs would increase because there would be additional documents to review. It is true that with the review of more SGI documents, potentially more SGI documents would be decontrolled, but it is unclear how many such additional documents would actually be reviewed. Many SGI documents no longer currently used would likely be documents “no longer needed,” which are required to be destroyed pursuant to final §§ 73.22(i) and 73.23(i). This would probably amount to roughly half of the SGI-designated documents ten years or older.

Comment:
A commenter asserts that it is impractical to have the NRC approve the decontrol of documents generated by other agencies and that sometimes the individual in an organization who made the original SGI determination is unavailable. The commenter suggests that the proposed text of §§ 73.22(h) and 73.23(h) be modified to allow other authorized individuals within the

organization that made the original SGI determination to decontrol the document. Another commenter echoes this request.

Response:
In response to these comments, the Commission is clarifying the text in §§ 73.22(h) and 73.23(h) to state that the authority to determine that documents originally containing SGI must be removed from the SGI category may be exercised by the NRC, with the approval of the NRC, or in consultation with the individual or organization that made the original determination.

Section 73.23.

Comment:
A commenter asserts that for shipments of Category 1 materials, which are not routine, schedules and itineraries of a shipment constitute information that, if disclosed, could reduce the security of the shipment. For the more routine Category 2 RAMQC shipments, the commenter states that it is not clear from the proposed rule that relevant security information will accompany these shipments. The commenter believes that the following statement from the proposed rule in the discussion for § 73.23 adds confusion to the issue: “Scheduling and itinerary information used for the purpose of preplanning, coordination and advance notification may be shared with others on a ‘need to know’ basis and need not be designated as Safeguards Information-Modified Handling.” (71 FR 64004, 64063; October 31, 2006).

Response:
It is not clear what the commenter means when referring to “relevant security information” accompanying Category 2 RAMQC shipments. The statement from the rule text which the commenter quotes is consistent with the Commission's recent determination, discussed earlier in this Notice, that information relating to the shipment of Category 2 RAMQC need not be designated and controlled as SGI-M. Rather, such information may be shared on a “need -to-know” basis.

Section 73.23(a).

Comment:
A commenter requests that § 73.23(a) be modified to correspond to § 73.22(a), which deleted the undefined terms “additional security measures,” “protective measures” and “interim compensatory measures.”

Response:
The Commission agrees with this comment and has deleted the terminology above from § 73.23(a).

Section 73.59.

Comment:
One commenter stated that § 73.59 should be revised to permit a licensee to recognize a background check conducted in accordance with the final rule by another NRC or Agreement State licensee. The commenter believes that this change would help allow a licensee to sub-contract work to other licensees where it may be necessary to divulge SGI to the contracted licensee in order for the maintenance activity to be performed safely. The commenter's suggested revision would state that an “employee of an NRC or Agreement State licensee who has undergone criminal history and background checks in accordance with or equivalent to those required by 10 CFR 73.22(b) or 73.23(b).”

Response:
Section 73.59 of the rule provides relief from the fingerprinting and criminal history records check requirements set forth in Section 149 of the AEA for limited categories of individuals set forth in § 73.59(1) through (9). Those categories of individuals are considered to be trustworthy and reliable by virtue of their occupational status and have either already undergone a background check or criminal history records check as a condition of their employment, or are subject to direct oversight by government authorities in their day-to-day job functions. The categories of individuals specified in § 73.59 include governmental employees at the federal, state or local level or certain NRC-certified representatives of the International Atomic Energy Agency. In addition, any agent, contractor, or consultant of those categories of individuals is also exempt provided equivalent criminal history and background checks to those required by §§ 73.22(b) or 73.23(b) have been performed. The Commission has determined not to adopt the language the commenter has proposed to extend the exemption to an even broader category of non-governmental individuals. However, a mechanism exists in § 73.57(f)(3) of the current regulations for the transfer to another licensee of personal information obtained on an individual obtained from a criminal history records check, provided the conditions specified in paragraphs (f)(3)(i) and (ii) are met.

Comment:
An Agreement State requests the NRC to continue its “previous policy of exempting from its trustworthiness and reliability reviews (and related fingerprinting and criminal history records checks) those individuals designated by the Governor of a State as needing access to SGI, regardless of whether those individuals are State employees.” According to the State, this exemption is allowed by law and “is a matter of respect and comity” because “the NRC should * * * trust the duly elected Governor of a sovereign state to designate only those individuals who may be trusted with access to SGI.”

Response:
NRC regulations historically relieved licensees authorized to operate power reactors from requiring specified categories of individuals to undergo criminal history records checks (including fingerprinting) for access to SGI. The exempt categories of individuals included the “Governor of a State, or his or her designated representative.”
See
, e.g., 10 CFR 73.57(b)(2)(ii).

Limiting the scope of the relief granted to the above category of licensees reflected the narrow scope of NRC's
previous
statutory authority under Section 149 of the AEA to require fingerprinting. The EPAct amended Section 149 of the AEA to obligate the NRC to require individuals or entities (including licensees or applicants for licenses to engage in any activity subject to regulation by the Commission), to fingerprint any individual seeking access to SGI. However, the EPAct preserved NRC's authority under Section 149.b. of the AEA to relieve, by rule, persons from the obligations imposed by Section 149, upon specified terms, conditions, and periods, if the Commission makes findings that such action is consistent with its obligations to promote the common defense and security and to protect the health and safety of the public. The NRC exercised that authority in a final rule that added to part 73 a new § 73.59, “Relief from fingerprinting, identification and criminal history records checks and other elements of background checks for designated categories of individuals.” Final rule,
Relief from Fingerprinting and Criminal History Records Check for Designated Categories of Individuals
(June 13, 2006; 71 FR 33989). The rule was needed to enable the Commission to continue to share SGI with certain categories of individuals seeking access to SGI from non-power reactor licensees or from the Commission without subjecting them to the expanded criminal history records checks required by the EPAct. (71 FR 33989). The rule continued the relief previously granted in §§ 73.21 and 73.57, but expanded and lengthened the categories of individuals relieved by the rule from the fingerprinting and criminal history records checks. (71 FR 33989, 33990). In promulgating the rule, the Commission specifically found the rule to be consistent with its obligations to promote the common defense and security and to protect the health and safety of the public. (71 FR at 33990).

Because trustworthiness and reliability determinations are based upon background checks, the State's comments are relevant to § 73.59. Section 73.59 exempts a number of categories of individuals from the otherwise applicable background check

requirements for access to SGI, including criminal history records checks (and fingerprinting). See proposed rule,
Protection of Safeguards Information
(October 31, 2006; 71 FR 64004). The proposed SGI rule added, as § 73.59(k), a new category of exempt individuals consisting of “any agent, contractor, or consultant of the aforementioned persons who has undergone equivalent criminal history records and background checks to those required by 10 CFR 73.22(b) or 73.23(b).” (71 FR at 64006). Another category of exempt individuals is set forth in § 73.59(e), for “the Governor of a State or his or her designated State employee representative.” The rationale for this category and other categories of exempt individuals is that the individuals described in those categories “are considered trustworthy and reliable to receive SGI by virtue of their occupational status and have either already undergone a background or criminal history check as a condition of their employment, or are subject to direct oversight by government authorities in their day-to-day job functions.” (71 FR 33990). A Governor's designated State employee representative is considered to be trustworthy and reliable because of the employee's occupational status—reporting to and vouched for by the Governor and the fact that the employee is subject to direct employment oversight by a high-level government official in the employee's day-to-day job functions. Under the exemption in former § 73.57 for Governor-designated representatives, a non-employee of a State would have been exempt from the criminal history records check (including fingerprinting). A non-employee would not necessarily have undergone a criminal history records check as part of the background check. In addition, the non-employee would not be subject to direct oversight by high-level government authorities in that individual's day-to-day job functions. Therefore, the Commission narrowed that specific exemption to include only state employee representatives designated by a Governor. The Commission is well within its authority under Section 149 of the AEA to so limit the specific exemption in § 73.59(e).

Moreover, the State's comment does not account for the applicability of the exemption in § 73.59(k) for an agent, contractor, or consultant of the categories of individuals specified in § 73.59 who have undergone effective criminal history records checks as part of background checks. Thus, designated representatives of a Governor meeting the equivalency provision would not have to undergo a separate check prior to being granted access to SGI. Given the availability of this exemption for individuals not included in § 73.59(e) and for the reasons set forth above, the Commission declines to make the changes in the rule requested by the State.

Regulatory Analysis.

Comment:
According to a commenter, the proposed rule incorrectly states that the rule would be implemented in FY 2005 and 2006. Because the commenter stated that the earliest it could be implemented is in FY 2007, the commenter concluded that the regulatory analysis is flawed because it uses 2005 dollars.

Response:
The Commission has modified the regulatory analysis to state dollars as FY 2007 dollars.

Comment:
A commenter asserts that the regulatory and backfit analyses fail to calculate the substantial cost to power reactor licensees for modifying their existing SGI process and adding the ten-year review. The commenter asks that these analyses consider the actual substantial cost of rule implementation regarding power reactor licensee costs to modify SGI programs and the significant costs of the ten-year review required by proposed § 73.22(h), and suggests that the rulemaking be delayed until accurate regulatory and backfit analyses are completed.

Response:
The Commission disagrees that the regulatory analysis fails to calculate the cost to power reactors for modifying their existing SGI programs. The cost for such modifications are reflected in both the draft and final regulatory analyses. Additionally, the regulatory analysis has been changed to account for the increased number of power reactor applicants and to use power reactor costs for power reactor applicants. There is no item in the regulatory analysis reflecting the ten-year review requirement because this review requirement is not being retained in the final rule. In the response to comments on the ten-year review requirement, however, the Commission provides a brief analysis of the costs and benefits of the ten-year review in explaining its decision not to retain the requirement. As for the backfit analysis requested by the commenter, the Commission has determined in section XII of this document that a backfit analysis is not required. As explained therein, the Commission has determined that many of the requirements imposed by the final rule are not backfits. Those requirements that are backfits have been determined to be necessary to ensure that the facilities and materials described in the final rule provide adequate protection to the public health and safety and are in accord with the common defense and security, as applicable. Therefore, a backfit analysis is not required and the cost-benefit standards of §§ 50.109(a)(3), 70.76, 72.62, and 76.76, do not apply.

Comment:
A commenter characterizes the NRC's regulatory and backfit analyses as too qualitative in their assessments of the benefits provided by the rule, and that the regulatory analysis should contain quantitative evidence to support the conclusion that the benefits of the rule outweigh the costs. The commenter believes that topics where quantitative benefits analyses are desirable include (1) the added safety benefits from requiring transporters of nuclear materials to follow both DOT and NRC marking requirements and (2) how much of the additional material protected under the final rule has been released to the public because of the lack of the final rule's requirements. The commenter asks that the rulemaking be delayed until accurate regulatory and backfit analyses are completed.

Response:
The Commission believes that it is appropriate to describe the benefits of the rule in qualitative rather than quantitative terms, and that further efforts to quantify the rule's benefits in the Regulatory Analysis would be of little use and potentially misleading. Qualitative discussion of the unquantifiable values and impacts of a rule is expressly provided for in NUREG/BR-0058, Revision 4, “Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission.”
17

17
NUREG/BR-0058, Rev. 4, p. 24.

Regarding the benefit of requiring transporters of nuclear materials to follow both DOT and NRC marking requirements, the benefit is the simple, but essential, one of informing holders of the document which handling and disclosure requirements apply to the document. If a document containing SGI, but only marked with DOT markings, were transmitted to another individual, that individual would not know that SGI requirements apply to the document. Because DOT and SGI requirements differ, the recipient of the document containing SGI would likely not comply with all of the SGI handling requirements. The benefits of using NRC markings need not be quantified.

The Commission also does not consider it a useful measure to quantify how much additional material protected under the rule has historically been released to the public because of the

lack of the rule's requirements. First, a relatively small quantity of SGI obtained by one determined individual for nefarious purposes could be more dangerous than a larger quantity of material obtained by several people with peaceful intentions. Second, the request misses the point that security orders issued since September 11, 2001, have imposed SGI protection requirements above and beyond those imposed by the current rule. There is no recent experience with the current rule as a baseline from which to make the requested calculation, even if such a calculation produced a useful measure.

Finally, with respect to a quantitative analysis of benefits in a backfit analysis, the Commission has determined that a backfit analysis is not necessary for this rule, as explained in the response to the previous comment.

B. Analysis of Changes Made in the Final Rule to the Text of the Revised Proposed Rule

Change from “criminal history check” to “criminal history records check.”

Throughout the rule, references to “criminal history check” have been revised to read “criminal history records check.” This change is being made for consistency with § 73.59, “Relief from fingerprinting, identification and criminal history records checks and other elements of background checks for designated categories of individuals.”

Analysis of part 2 changes to the proposed rule text.

Part 2 Authority citation.

The authority citation for part 2 is being updated from the version in the revised proposed rule to cite Sections 147 and 149 of the AEA, as amended, as opposed to just the EPAct amendment to Section 149, and to correct a typo in the authority citation for Appendix A.

Renumbering of SGI-related provisions in § 2.705.

Proposed § 2.705(c)(2)-(c)(7), which contains SGI access procedures for discovery in Subpart G adjudications, was misnumbered. Proposed § 2.705(c)(2)-(c)(7) will be moved to § 2.705(c)(3)-(c)(8) in the final rule, and § 2.705(c)(2) in the current rules will be retained in its current form.

Clarifying the scope of SGI access procedures for discovery in adjudications.

Proposed §§ 2.336(f), 2.705(c)(3)-(c)(8) (2.705(c)(2)-(c)(7) in the revised proposed rule), 2.709(f), and 2.1010(b)(6) contain SGI procedures for discovery in adjudications. There are other areas of discovery in adjudications, however, that are not explicitly covered by the proposed rule. Specifically, disclosures in subpart G adjudications by parties other than the NRC staff are covered under § 2.704. To clarify the intent of the rule, a new § 2.704(f) is added, which reads as follows: “Disclosure under this section of documents and records including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy Act of 1954, as amended, will be according to the provisions in § 2.705(c)(3)-(c)(8).” Also, § 2.1010 in subpart J speaks only to the powers of the Pre-Application Presiding Officer (PAPO), but there might be document discovery in the High-Level Waste proceeding after the PAPO dissolves. Therefore, a new § 2.1018(h) is added with the following text: “Discovery under this section of documentary material including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy Act of 1954, as amended, will be according to the provisions in § 2.1010(b)(6)(i)-(b)(6)(vi).”

Change from “Chairman of the Atomic Safety and Licensing Board Panel” to “Chief Administrative Judge.”

There are several instances in the revised proposed rule text in which the term “Chairman of the Atomic Safety and Licensing Board Panel” is used to refer to the head of the Atomic Safety and Licensing Board Panel. The Commission has decided to change this term to “Chief Administrative Judge” in the final rule to reflect the usage of § 1.15. The change will be made in §§ 2.336(f)(1)(iv), 2.705(c)(3)(iv), 2.709(f)(1)(iv), 2.1010(b)(6)(i)(D), and 73.57(e)(3).

Clarification of jurisdiction when a presiding officer has yet to be appointed.

The term “presiding officer” is used throughout § 2.336(f), but there may be instances in which adjudicatory decisions related to SGI need to be made prior to the designation of a presiding officer. For instance, a person seeking participation in an adjudication may desire access to SGI to proffer a contention but may be denied access because of an adverse “need to know” or trustworthiness and reliability determination. Disputes in such cases should be resolved as quickly as possible and not await the appointment of a presiding officer. To account for this situation, a new § 2.336(f)(7) has been added with the following text: “If a presiding officer has yet to be appointed, the authority to take the actions described in (f)(1) to (f)(6) resides in the officer with jurisdiction under § 2.318(a).”

Changes related to adverse trustworthiness and reliability determinations in adjudications.

The Commission is changing proposed § 2.336(f)(1)(ii)-(iii) to clarify that the protections referred to therein are to be afforded before a final adverse determination. After an adverse determination becomes final, the appeal procedures in § 2.336(f)(1)(iv) can be used. Conforming changes have also been made to §§ 2.705(c)(3)(ii)-(iii), 2.709(f)(1)(ii)-(iii), and 2.1010(b)(6)(i)(B)-(C). With respect to the appeal procedures in § 2.336(f)(1)(iv), the rule has been modified to require designation of an officer other than the presiding officer for review of final adverse determinations in all instances, rather than leaving such matters to the discretion of the Chief Administrative Judge. Conforming changes were also made to §§ 2.705(c)(3)(iv), 2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D).

The Commission is modifying § 2.336(f)(1)(iii) by replacing the last sentence in the revised proposed rule with more appropriate language. The last sentence in the revised proposed rule states that “before an adverse determination on an individual's background check for trustworthiness and reliability, the individual shall be afforded the protections provided by § 73.57.” The protections referred to in § 73.57(e)(1)-(2), however, apply only to criminal history records checks, and proposed § 2.336(f)(1)(ii) already references those same protections specifically for criminal history records checks.
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Therefore, the last sentence in § 2.336(f)(1)(iii) is superfluous when read in a literal manner, duplicating the effect of the reference in § 2.336(f)(1)(ii).

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Although a background check is based upon a criminal history records check, it is also based upon other elements, such as employment history, education, and personal references.

The Commission, however, considers it proper to provide the essential rights contained in § 73.57(e)(1)-(2) for components of the background check other than the criminal history records check. For criminal history records checks, the essential rights provided by § 73.57(e)(1)-(2) are (1) access to the criminal history record and (2) the option within ten days to challenge the completeness and accuracy of the information contained in that record by providing additional information and/or explanation.

By analogy, the Commission believes that for components of the background check other than the criminal history records check, individuals subject to an adverse trustworthiness and reliability

determination should have access to the records that were considered in the trustworthiness and reliability determination. These individuals should also be able to provide additional information and/or an explanation to the Office of Administration within ten days, and the Office of Administration should promptly resolve the challenge presented by the individual. Therefore, the last sentence in § 2.336(f)(1)(iii) is being replaced with language that provides the essential rights of § 73.57 for components of the background check other than the criminal history records check. Conforming changes are also being made to §§ 2.705(c)(3)(iii), 2.709(f)(1)(iii), and 2.1010(b)(6)(i)(C).

The Commission has decided to replace “[p]articipants, potential witnesses, and attorneys” in proposed §§ 2.336(f)(1)(iv), 2.705(c)(3)(iv), 2.709(f)(1)(iv), and 2.1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-24904. Public record. Not legal advice.