64004 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Parts 2, 30, 40, 50, 52, 60, 63, 

70, 71, 72, 73, 76, and 150 

RIN: 3150–AH57 

Protection of Safeguards Information 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is proposing to 

amend its regulations for the protection 

of Safeguards Information (SGI) to 

protect SGI from inadvertent release and 

unauthorized disclosure which might 

compromise the security of nuclear 

facilities and materials. The 

amendments would affect certain 

licensees, information, and materials 

not currently subject to SGI regulations, 

but which are within the scope of 

Commission authority under the Atomic 

Energy Act of 1954, as amended (AEA). 

The NRC originally published a 

proposed rule on SGI on February 11, 

2005 (70 FR 7196). The NRC is again 

publishing the proposed rule on SGI 

protection requirements in order to 

allow the public to comment on changes 

to the proposed rule text in response to 

public comment and to reflect 

amendments to the AEA in the Energy 

Policy Act of 2005 (EPAct) and 

Commission Orders issued to licensees 

authorized to possess and transfer items 

containing certain quantities of 

radioactive material. 

DATES: The comment period expires 

January 2, 2007. Submit comments 

specific to information collection 

aspects of this rule January 2, 2007. 

Comments received after that date will 

be considered if it is practical to do so, 

but the NRC is able to ensure 

consideration only for comments 

received on or before this date. 

ADDRESSES: You may submit comments 

by any one of the following methods. 

Please include the following number 

(RIN 3150–AH57) in the subject line of 

your comments. Comments on this 

rulemaking submitted in writing or in 

electronic form will be made available 

for public inspection. Because your 

comments will not be edited to remove 

identifying information, the NRC 

cautions against including personal 

information such as social security 

numbers and birth dates in your 

submission. 

Mail comments to: Secretary, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, Attn: 

Rulemaking and Adjudications Staff. 

E-mail comments to: SECY@nrc.gov. If 

you do not receive a reply e-mail 

confirming that we have received your 

comments, contact us directly at (301) 

415–1966. You may also submit 

comments via the NRC’s rulemaking 

Web site at http://ruleforum.llnl.gov. 

Address questions about our rulemaking 

Web site to Carol Gallagher at (301) 

415–5905; e-mail: cag@nrc.gov. 

Comments can also be submitted via the 

Federal Rulemaking Portal http:// 

www.regulations.gov. 

Hand deliver comments to 11555 

Rockville Pike, Rockville, Maryland, 

20852, between 7:30 a.m. and 4:15 p.m. 

Federal workdays. (Telephone: (301) 

415–1966). 

Fax comments to: Secretary, U.S. 

Nuclear Regulatory Commission at (301) 

415–1101. Publicly available documents 

related to this rulemaking may be 

examined and copied for a fee at the 

NRC’s Public Document Room (PDR), 

Public File Area 01F21, One White Flint 

North, 11555 Rockville Pike, Rockville, 

Maryland. Selected documents, 

including comments, can be reviewed 

and downloaded electronically via the 

NRC rulemaking Web site at http:// 

ruleforum.llnl.gov. 

You may submit comments on the 

information collections by the methods 

indicated in the Paperwork Reduction 

Act Statement. 

Publicly available documents created 

or received at the NRC after November 

1, 1999, are available electronically at 

the NRC’s Electronic Reading Room at 

http://www.nrc.gov/ NRC/ADAMS/ 

index.html. From this site, the public 

can gain entry into the NRC’s 

Agencywide Document Access and 

Management System (ADAMS), which 

provides text and image files of NRC’s 

public documents. If you do not have 

access to ADAMS or if there are 

problems in accessing the documents 

located in ADAMS, contact the NRC’s 

PDR Reference staff at 1–800–397–4209, 

301–415–4737 or by e-mail to 

pdr@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Marjorie Rothschild, Senior Attorney, 

Office of the General Counsel, U.S. 

Nuclear Regulatory Commission, 

Washington, DC 20555–0001, telephone 

(301) 415–1633, e-mail MUR@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 BWS2@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Need for Rule 

III. Purpose of Rulemaking 

IV. Discussion 

A. Overview of Public Comments on the 

Original Proposed Rule 

B. Comments and Issues 

1. Comments in Response to Specific 

Request for Comments 

2. General Issues 

3. Section-Specific Comments 

C. Section-by-Section Analysis 

D. Request for Specific Comment 

V. Criminal Penalties 

VI. Agreement State Issues 

VII. Voluntary Consensus Standards 

VIII. Finding of No Significant Impact: 

Environmental Assessment 

IX. Paperwork Reduction Act Statement 

X. Regulatory Analysis 

XI. Regulatory Flexibility Certification 

XII. Backfit Analysis 

I. Background 

The NRC first published proposed 

amendments to its rules in parts 2, 30, 

40, 50, 52, 60, 63, 70, 71, 72, 73, 76, 150 

governing the handling of Safeguards 

Information and creating a new category 

of protected material, Safeguards 

Information-Modified Handling on 

February 11, 2005 (70 FR 7196). 

Subsequently, Congress passed the 

Energy Policy Act of 2005 (EPAct), Pub. 

L. No. 109–58, 119 Stat. 594. Section 

652 of the EPAct amended section 149 

of the Atomic Energy Act (AEA) to 

require fingerprinting, for criminal 

history check purposes, of a broader 

class of persons. With regard to access 

to SGI before the EPAct, the NRC’s 

fingerprinting authority was limited to 

requiring licensees and applicants for a 

license to operate a nuclear power 

reactor under 10 CFR part 50 to 

fingerprint individuals prior to granting 

access to SGI. The EPAct expanded the 

NRC’s authority to require 

fingerprinting of only individuals with 

access to SGI. Under the EPAct, NRC 

has the authority to require that the 

following individuals conduct 

fingerprinting before granting access to 

SGI: (1) Individuals licensed or certified 

to engage in an activity subject to 

regulation by the Commission; (2) 

individuals who have filed an 

application for a license or certificate to 

engage in Commission-regulated 

activities; and (3) have notified the 

Commission in writing of an intent to 

file an application for licensing, 

certification, permitting, or approval of 

a product or activity subject to 

regulation by the Commission. 

Previously, section 149 of the AEA only 

required fingerprinting and criminal 

history records checks of individuals 

seeking access to SGI (as defined in 

§ 73.2) from a power reactor licensee or 

license applicant. 

The EPAct preserved the 

Commission’s authority in section 149 

to relieve by rule certain persons from 

the fingerprinting, identification, and 


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1This Order was published in the Federal 

Register as ‘‘Licensees Authorized to Manufacture 

or Initially Transfer Items Containing Radioactive 

Material for Sale or Distribution and Who Possess 

Certain Radioactive Material of Concern and all 

Persons Who Obtain Safeguards Information 

Described Herein; Order Issued on November 25, 

2003, Imposing Requirements for the Protection of 

Certain Safeguards Information (Effective 

Immediately),’’ (69 FR 3397; Jan. 23, 2004). 

criminal history records checks. The 

Commission recently exercised that 

authority to relieve by rule certain 

categories of persons from those 

requirements including Federal, State, 

and local officials involved in security 

planning and incident response, 

Agreement State employees who 

evaluate licensee compliance with 

security-related orders, members of 

Congress who request SGI as part of 

their oversight function, and certain 

foreign representatives. These 

exemptions are based on the 

Commission’s findings that (1) 

interrupting those individuals’ access to 

SGI to perform fingerprinting and 

criminal history checks would harm 

vital inspection, oversight, planning, 

and enforcement functions, (2) it would 

impair communications among the 

NRC, its licensees, and first responders 

in the event of an imminent security 

threat or other emergency, and (3) it 

could strain the Commission’s 

cooperative relationships with its 

international counterparts, and might 

delay needed exchanges of information 

to the detriment of current security 

initiatives both at home and abroad. The 

final rule was published in the Federal 

Register on June 13, 2006 (71 FR 

33,989). That final rule was necessary to 

avoid disruption of the Commission’s 

information sharing activities during the 

interim period while the Commission 

completes the overall revision of the 

regulations in this rulemaking. 

We have revised the original proposed 

rule to reflect the new requirements 

under the EPAct, and the final rule cited 

above, and we are again seeking public 

comment before promulgating a final 

SGI rule. We have also made revisions 

to reflect public comments on the 

original proposed rule, recent 

Commission direction, and Orders 

issued to licensees authorized to possess 

and transfer items containing certain 

quantities of radioactive material. 

The Commission requests that 

comments on this revised proposed rule 

focus on the changes and additions to 

the original proposed rule and not on 

areas discussed in previous comments. 

Because the public has already had 

opportunity to comment on much of the 

material contained in this revised 

proposed rule, the Commission has 

determined that a 60-day comment 

period is appropriate, and requests for 

extension of the commenting period 

will not be granted. 

SGI is a special category of sensitive 

unclassified information to be protected 

from unauthorized disclosure under 

Section 147 of the AEA. Although SGI 

is considered to be sensitive 

unclassified information, it is handled 

and protected more like Classified 

National Security Information than like 

other sensitive unclassified information 

(e.g., privacy and proprietary 

information). Part 73, ‘‘Physical 

Protection of Plants and Materials,’’ of 

the NRC’s regulations in Title 10 of the 

Code of Federal Regulations (CFR) 

contains requirements for the protection 

of SGI. Commission orders issued since 

September 11, 2001, have also imposed 

requirements for the designation and 

protection of SGI. These requirements 

apply to SGI in the hands of any person, 

whether or not a licensee of the 

Commission, who produces, receives, or 

acquires SGI. An individual’s access to 

SGI requires both a valid ‘‘need to 

know’’ the information and 

authorization based on an appropriate 

background investigation. Power 

reactors, certain research and test 

reactors, and independent spent fuel 

storage installations are examples of the 

categories of licensees currently subject 

to the provisions of 10 CFR part 73 for 

the protection of SGI. Examples of the 

types of information designated as SGI 

include the physical security plan for a 

licensee’s facility, the design features of 

a licensee’s physical protection system, 

and operational procedures for the 

licensee’s security organization. 

The Commission has authority under 

Section 147 of the AEA to designate, by 

regulation or order, other types of 

information as SGI. For example, 

Section 147a.(2) allows the Commission 

to designate as SGI a licensee’s or 

applicant’s detailed security measures 

(including security plans, procedures 

and equipment) for the physical 

protection of source material or 

byproduct material in quantities 

determined by the Commission to be 

significant to the public health and 

safety or the common defense and 

security. The AEA explicitly provides in 

Section 147a. that ‘‘any person, whether 

or not a licensee of the Commission, 

who violates any regulations adopted 

under this section shall be subject to the 

civil monetary penalties of Section 234 

of this Act.’’ Furthermore, willful 

violation of any regulation or order 

governing SGI is a felony subject to 

criminal penalties in the form of fines 

or imprisonment, or both, as prescribed 

in Section 223 of the AEA. 

The Commission has, by order, 

imposed SGI handling requirements on 

certain categories of these licensees. An 

example is the November 25, 2003 

Order issued to certain materials 

licensees.1 Violations of SGI handling 

and protection requirements, whether 

those specified in part 73 or those 

imposed by order, are subject to civil 

and criminal sanctions. Licensee 

employees, past or present, and all other 

persons who have had access to SGI 

have a continuing obligation to protect 

SGI in order to prevent inadvertent 

release and unauthorized disclosure. 

Information designated as SGI must be 

withheld from public disclosure and 

must be physically controlled and 

protected. Protection requirements 

include: (1) Secure storage; (2) 

document marking; (3) restriction of 

access; (4) limited reproduction; (5) 

protected transmission; (6) controls for 

information processing on electronic 

systems; and (7) destruction of SGI. The 

AEA explicitly provides in Section 

147a. that ‘‘any person, whether or not 

a licensee of the Commission, who 

violates any regulations adopted under 

this section shall be subject to the civil 

monetary penalties of Section 234 of 

this Act.’’ Furthermore, willful violation 

of any regulation or order governing SGI 

is a felony subject to criminal penalties 

in the form of fines or imprisonment, or 

both, as prescribed in Section 223 of the 

AEA. 

II. Need for Rule 

Changes in the threat environment 

have revealed the need to protect as SGI 

additional types of security information 

held by a broader group of licensees. 

The current regulations do not specify 

all of the types of information that could 

be designated as SGI and are now 

recognized to be significant to the 

public health and safety or the common 

defense and security. The unauthorized 

release of this information could result 

in harm to the public health and safety 

and the Nation’s common defense and 

security, as well as damage to the 

Nation’s critical infrastructure, 

including nuclear power plants and 

other facilities and materials licensed 

and regulated by the NRC or Agreement 

States. 

Since September 11, 2001, the NRC 

has issued orders that have increased 

the number of licensees whose security 

measures will be protected as SGI and 

added types of security information 

considered to be SGI. Orders have been 

issued to power reactor licensees, fuel 

cycle facility licensees, certain source 

material licensees, and certain 

byproduct material licensees. Some of 


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2See Order (69 FR 3397; January 23, 2004). 

the orders expanded the types of 

information to be protected by licensees 

who already have an SGI protection 

program, such as nuclear power reactor 

licensees. Other orders were issued to 

licensees that have not previously been 

subject to SGI protection requirements 

in the regulations, such as certain 

licensees authorized to manufacture or 

initially transfer items containing 

radioactive material.2 Some orders 

imposed a new designation detailing 

modified handling requirements for 

certain SGI: Safeguards InformationModified Handling (SGI–M). The more 

precise term is ‘‘Safeguards Informationdesignated as Safeguards InformationModified Handling’’ to distinguish 

between ‘‘type of information’’—SGI, 

and the two sets of handling 

requirements ‘‘SGI’’ and ‘‘SGI–M’’. We 

are not seeking to create another type of 

information separate from SGI, and in 

fact SGI–M is SGI. 

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 securityrelated information regarding quantities 

of source, byproduct, and special 

nuclear materials for which the harm 

caused by unauthorized disclosure of 

information would be less than that for 

SGI. 

Some of the requirements imposed by 

orders that have increased the types of 

information to be considered SGI are not 

covered by the current regulations. 

Although the Commission has the 

authority to impose new SGI 

requirements through the issuance of 

orders, the regulations would not reflect 

current Commission SGI policy and/or 

requirements. Consequently, the NRC 

has opted to amend its regulations. 

III. Purpose of Rulemaking 

NRC staff review of the SGI regulatory 

program indicates that changes in the 

regulations are needed to address issues 

such as access to SGI, types of security 

information to be protected, and 

handling and storage requirements. 

This rulemaking will: 

(1) Revise the definition of ‘‘need to 

know’’ in 10 CFR 73.2; 

(2) Implement expanded 

fingerprinting and criminal history 

check procedures for broader categories 

of individuals who will have access to 

SGI unless exempt from those 

requirements; 

(3) Implement a requirement for 

background checks which form the basis 

for demonstrating trustworthiness and 

reliability for individuals who will have 

access to SGI unless exempt from those 

requirements. As discussed in detail 

later, background checks are comprised 

of several elements, which would now 

include a criminal history check; 

(4) Modify part 73 to reflect the 

Commission’s recent experience and 

actions, including addressing 

requirements contained in Orders 

issued following the terrorist attacks of 

September 11, 2001; 

(5) Expand the scope of part 73 to 

include additional categories of 

licensees (e.g., source and byproduct 

material licensees, research and test 

reactors not previously covered, and 

fuel cycle facilities not previously 

covered); 

(6) Expand the types of security 

information covered by the definition of 

SGI in § 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; security-related scenarios and 

implementing procedures; uncorrected 

vulnerabilities or weaknesses in a 

security system; and certain training 

and qualification information; and 

(7) Clarify requirements for obtaining 

access to SGI in the context of 

adjudications and clarify the appeal 

procedures available. 

(8) Modify the original proposed rule 

to align it with the final rule in 10 CFR 

73.59 granting relief from the 

identification and criminal history 

records check element (including 

fingerprinting) of background checks for 

designated categories of individuals. 

(9) Modify 10 CFR 73.59 to make it 

consistent with the language and 

structure of the proposed SGI rule. 

A graded approach based on the risks 

and consequences of information 

disclosure would be used in 

determining which category of licensee 

or type of information would be subject 

to certain protection requirements. This 

graded approach can be applied to 

issues such as the type of information to 

be protected, the classes of licensees 

subject to the rule, and the level of 

handling requirements necessary for the 

various licensees. For example, the 

graded approach would allow certain 

licensees to employ the modifiedhandling procedures introduced in 

recent orders and now set forth in the 

provisions of this revised proposed rule. 

The requirements set forth in this 

revised proposed rule are the minimum 

restrictions the Commission finds 

necessary to protect SGI against 

inadvertent release or unauthorized 

disclosure which might compromise the 

health and safety of the public or the 

common defense and security. The 

revised proposed rule would cover 

those facilities and materials the 

Commission has already determined 

need to be protected against theft or 

sabotage. The categories of information 

constituting SGI relate to the types of 

facilities and the quantities of special 

nuclear material, source material and 

byproduct material determined by the 

Commission to be significant and 

therefore subject to protection against 

unauthorized disclosure pursuant to 

Section 147 of the AEA. Unauthorized 

release of SGI could reduce the 

deterrence value of systems and 

measures used to protect nuclear 

facilities and materials and allow for the 

possible compromise of those facilities 

and materials. Such disclosures could 

also facilitate advance planning by an 

adversary intent on committing acts of 

theft or sabotage against the facilities 

and materials within the scope of the 

revised proposed rule. Further, the 

Commission has determined, pursuant 

to Section 147a.(3)(B) of the AEA, that 

the unauthorized disclosure of the 

information that is the subject of this 

revised proposed rule could reasonably 

be expected to have a significant 

adverse effect on the health and safety 

of the public or the common defense 

and security by significantly increasing 

the likelihood of theft, diversion, or 

sabotage of nuclear material or a 

production or utilization facility. The 

Commission has distinguished SGI 

designated as SGI–M, needing modified 

protection, from SGI for reactors and 

fuel cycle facilities that require a higher 

level of protection. 

IV. Discussion 

A. Overview of Public Comments on the 

Original Proposed Rule 

On February 11, 2005, (70 FR 7196), 

the Commission published a proposed 

rule and requested public comments by 

March 28, 2005. Twenty-five comment 

letters were received, in addition to 622 

letters from members of the public that 

were substantively identical. Copies of 

those letters are available for public 

inspection and copying for a fee at the 

NRC Public Document Room, 11555 

Rockville Pike, Rockville, Maryland, or 

on the NRC’s Agencywide Document 

Access and Management System, 

available online at: http://www.nrc.gov/ 

reading-rm/adams/web-based.html. 

Two comment letters were from trade 

unions, four were from public interest 

or government watchdog groups, one 

was from a journalist group, three were 

from members of the public, one was 

from a State government agency, two 

were from the U.S. Department of 


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Energy, one was from a law firm that 

represents nuclear utilities, and eleven 

were from utilities or nuclear industry 

groups. The comment letters provided 

various points of view and suggestions 

for clarifications, additions, deletions, 

and changes. Responses to the 

comments, including those in the 622 

letters from the public, are set forth 

below. 

B. Comments and Issues 

1. Comments In Response to Specific 

Request for Comments 

In the February 2005 proposed rule, 

the NRC solicited specific public 

comment on the issue associated with 

differing requirements for access to SGI 

and SGI–M. The original proposed rule 

§§ 73.22(b)(1) and 73.23(b)(1) contained 

different requirements for performing 

background checks and making 

trustworthiness and reliability 

determinations for granting personnel 

access to SGI or SGI–M. These proposed 

requirements were based on the thenexisting statutory authorization in 

Section 149 of the AEA for the NRC to 

require nuclear power reactor applicants 

or licensees to fingerprint individuals to 

be granted access to SGI. Before 

enactment of the EPAct on August 8, 

2005, there was no similar statutory 

authorization to require fingerprinting 

by other applicants or licensees. Section 

652 of the EPAct, however, amended 

Section 149 of the AEA to authorize the 

NRC to require fingerprinting of 

individuals granted access to SGI by all: 

(1) Individuals and entities engaged in 

activities subject to regulation by the 

Commission; (2) applicants for a license 

or certificate to engage in Commissionregulated activities; and (3) individuals 

and entities who have notified the 

Commission in writing of an intent to 

file an application for licensing, 

certification, permitting, or approval of 

a product or activity subject to 

regulations by the Commission. 

The NRC published the original 

proposed rule six months before the 

Energy Policy was enacted, specifically 

inviting comment on whether 

stakeholders perceived difficulties in 

complying with the varying 

requirements of SGI and SGI–M. The 

Commission has considered 

stakeholders’ suggestions, comments, 

and proposals regarding the issue of 

whether a more uniform approach can 

be provided for background checks and 

trustworthiness and reliability 

determinations. Although comments 

may not have explicitly referred to this 

request for specific comment, many 

comments addressed the issue of 

performing background checks and the 

criteria for determining trustworthiness 

and reliability for access to SGI and 

SGI–M. These comments and detailed 

responses are set forth below. 

Commission views are also presented. 

One commenter expressed concern 

that the criteria to judge 

‘‘trustworthiness and reliability’’ could 

be applied arbitrarily to restrict access 

to information by persons deemed to 

have interests opposing the NRC or 

nuclear industry. Commenters also 

questioned how a ‘‘comprehensive 

background check’’ would be conducted 

and what ‘‘the other means’’ for 

determining ‘‘trustworthiness and 

reliability’’ would be. Other commenters 

noted that the definition of 

‘‘trustworthiness and reliability’’ does 

not clearly address how its requirements 

will be uniformly applied for all classes 

of individuals (for example, an 

individual who is not a utility employee 

such as an attorney for a utility or 

intervenor in an NRC adjudicatory 

proceeding), and whether there is a 

need for continued monitoring. Another 

commenter requested that the NRC 

address when background checks are 

required for persons requiring 

infrequent access to SGI or SGI–M such 

as commercial vendors periodically 

supplying security equipment and 

needed services to facilities. Some 

commenters requested greater detail on 

the criteria the NRC will use to 

determine access to SGI–M and that 

such criteria should allow for greater 

access to SGI–M because it poses ‘‘a 

lower security risk.’’

In response to these comments, the 

Commission notes that the purpose of 

the criteria to determine 

‘‘trustworthiness and reliability’’ for 

access to SGI is to provide reasonable 

assurance to the person granting access 

and to the Commission that granting an 

individual access to SGI does not 

constitute an unreasonable risk to the 

public health and safety or the common 

defense and security. Applying the 

criteria to improperly restrict access to 

SGI on the basis of an individual’s 

support or opposition to the nuclear 

industry is not consistent with the 

regulatory framework the Commission 

has established for granting access to 

SGI. 

The changes to the original proposed 

rule text reflect Commission efforts to 

more thoroughly address the criteria for 

determining access to SGI. For example, 

the revised proposed rule defines the 

term ‘‘background check’’ and provides 

greater specificity in the definition of 

the term ‘‘trustworthiness and 

reliability.’’ The revised proposed rule 

provides procedural protections to 

individuals seeking access to SGI in the 

context of adjudication both before and 

after an adverse determination of 

trustworthiness and reliability by the 

NRC Office of Administration. Before an 

adverse determination of 

trustworthiness and reliability is made, 

individuals would be entitled to use the 

procedures set forth in § 73.57. In the 

context of NRC adjudications, 

individuals receiving an adverse 

determination on their background 

check for trustworthiness and reliability 

would be able to appeal that adverse 

determination to the presiding officer of 

the proceeding in which the SGI is 

sought. Potential witnesses, participants 

without attorneys, and attorneys would 

be able to request that the Chairman of 

the Atomic Safety and Licensing Board 

Panel designate an officer other than the 

presiding officer of the proceeding to 

review the determination. Moreover, in 

the revised proposed rule, the 

Commission has standardized the 

criteria for access to SGI to implement 

amendments to Section 149 of the AEA 

contained in Section 652 of the EPAct. 

The revised proposed rule would 

require a Federal Bureau of 

Investigation criminal history check as 

part of the background check used to 

determine whether an individual is 

trustworthy and reliable before 

obtaining access to SGI, unless the 

Commission has otherwise provided. 

This requirement would extend to 

participants in NRC adjudicatory 

proceedings. 

The frequency with which access to 

SGI is needed is not a factor for 

determining access to SGI or SGI–M 

based on the governing provisions of the 

AEA or the Commission’s regulatory 

framework implementing those 

provisions. Establishing an individual’s 

need-to-know the information and 

trustworthiness and reliability is 

necessary whether an individual needs 

a one-time access to SGI or SGI–M or 

access multiple times. A trustworthiness 

and reliability determination based on a 

background check must be made except 

for individuals enumerated in § 73.59 

including contractors of an applicant or 

licensee. The Commission has 

determined that access to SGI and 

Safeguards Information designated as 

SGI–M by licensee employees, agents, 

vendors, or contractors must include 

both an appropriate need-to-know 

finding by the licensee and a finding 

concerning the trustworthiness and 

reliability of individuals having access 

to the information. Although a separate 

need-to-know determination will be 

required for each specific request for 

access to SGI, the requirement for a 

determination of trustworthiness and 


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reliability based on a background check 

could be considered satisfied within a 

certain period of time, 5 years for 

example. The same interval would 

apply to criminal history records checks 

(including fingerprinting), which are an 

element of a background check to 

determine trustworthiness and 

reliability. 

A commenter also questioned why the 

Commission would institute 

requirements applicable to SGI–M and 

suggested that the ‘‘less risk-associated 

information’’ be ‘‘Official Use Only’’

while some of the more sensitive 

information be ‘‘Classified National 

Security Information.’’ The Commission 

has distinguished SGI designated as 

SGI–M, needing a lower level of 

protection. Information meeting the 

definition of SGI in Section 147 of the 

AEA is being protected as such rather 

than under the designations proposed 

by this commenter because such 

information should be protected as SGI 

does not constitute Classified National 

Security Information. 

2. General Issues 

Comment: Some commenters stated 

that the proposed regulations go beyond 

the ‘‘minimum restrictions’’ needed to 

protect the health and safety of the 

public or the common defense and 

security, as required by Section 147 of 

the AEA. Rather than applying this 

provision, the Commission has 

expanded the SGI category to include 

virtually anything it wants to withhold. 

Therefore, the original proposed rule 

should be withdrawn or drastically 

revised. 

Response: The Commission 

recognizes there are limits to its 

discretion under Section 147 of the AEA 

in determining what information 

presents security concerns significant 

enough to warrant protection as SGI. 

The revised proposed rule does not 

expand the Commission’s discretion 

beyond statutory limits—the revised 

proposed rule describes the information 

the Commission considers SGI and is 

within the scope of the authority 

granted by Section 147 of the AEA. 

Section 147 of the AEA authorizes the 

Commission to protect information that 

specifically identifies the control and 

accounting procedures or security 

measures, including plans, procedures, 

and equipment used to protect source, 

byproduct, and special nuclear material. 

The categories of information to be 

protected under the rule fall well within 

this scope. Sections 73.22(a)(1) and 

73.23(a)(1) would protect information 

associated with physical protection 

such as alarm system layouts, intrusion 

detection equipment, and security 

communications systems, among other 

information. Sections 73.22(a)(2) and 

73.23(a)(2) would protect information 

associated with physical protection 

such as intrusion alarms, vehicle 

immobilization features, and plans for 

law enforcement coordination. Sections 

73.22(a)(3) and 73.23(a)(3) would 

protect inspection reports, audits, and 

evaluations to the extent they discuss 

security measures or security 

vulnerabilities. All of this and other 

information categorized in the 

regulations, if publicly disclosed, could 

be used to specifically identify the 

control and accounting procedures or 

security measures, including security 

plans, procedures, and equipment used 

to protect source, byproduct, and 

special nuclear material and allow the 

circumvention of those plans, 

procedures, or equipment. 

The Commission’s proposed 

conditions for access to SGI are not 

overly restrictive. Persons authorized 

access must be trustworthy and reliable 

based upon a background check to 

ensure that they will not purposely or 

inadvertently compromise the 

information. Access to SGI is limited to 

those with a ‘‘need to know’’ the 

information to avoid unnecessarily 

broad distribution of the information, 

which would increase the risk of 

inadvertent disclosures. As in the 

current SGI regulations, certain persons 

would be deemed trustworthy and 

reliable by virtue of their occupational 

status-these persons are generally 

members of government or law 

enforcement agencies, who in many 

cases have undergone background 

checks as a condition of their 

employment. Representatives of foreign 

governments or organizations would 

also not be subject to the background 

and criminal history checks, if approved 

by the Commission for access to SGI. 

Such an exemption is consistent with 

the Commission’s historical practice. 

All of these persons would still be 

required to demonstrate a ‘‘need to 

know’’ the information. 

The Commission’s proposed SGI 

handling requirements are not overly 

restrictive. Document marking 

requirements are necessary to 

distinguish SGI from other information 

so that it can be properly controlled. 

Locking up SGI while unattended is 

necessary to prevent unauthorized 

access to the information, as is limiting 

access to keys and knowledge of lock 

combinations. Restrictions on electronic 

processing, telecommunications and 

transmission are important to prevent 

interception of SGI, whether by 

electronic surveillance or other means. 

Comment: Many commenters 

suggested that the SGI designation does 

not permit the NRC to withhold all 

information and that the NRC is acting 

illegally and trying to silence those who 

are trying to improve nuclear safety. If 

instituted, these regulations would 

compromise the public’s ability to hold 

the nuclear industry and its government 

regulators accountable for their 

management of nuclear facilities and 

materials. 

Response: The Commission 

recognizes that there are statutory limits 

to the use of the SGI designation. The 

revised proposed rule remains within 

these limits and describes categories of 

information that may properly be 

considered SGI. The revised proposed 

rule recognizes the Commission’s 

authority to issue further orders or 

regulations designating information as 

SGI, provided it is within the scope of 

Section 147 of the AEA. 

The Commission’s purpose in 

proposing this rulemaking is not to 

unnecessarily withhold information 

from the public, to silence criticism of 

nuclear safety or security policies or to 

prevent the public from offering 

suggestions for improvement. The 

proposed SGI regulations are intended 

to ensure adequate protection of the 

public health and safety and the 

common defense and security by 

preventing authorized disclosure of 

certain, limited category of information 

that could be used to compromise the 

security of nuclear facilities and 

materials. 

The Commission always welcomes 

public input on nuclear safety and 

nuclear security. Members of the public 

may write letters to the Commission, file 

petitions for rulemaking under 10 CFR 

2.802, and file requests to institute a 

proceeding to modify, suspend, or 

revoke a license under 10 CFR 2.206. 

Members of the public may seek to 

initiate or participate in adjudications 

held in connection with proposed 

licensing actions. They may also attend 

public meetings to communicate their 

safety and security concerns. The NRC 

will always consider and respond to 

public concerns, but it must do so 

without compromising the safety and 

security of nuclear materials and 

facilities. 

Comment: One commenter stated that 

the original proposed rule would create 

a system without rights, duties, and 

obligations such as those in the 

Freedom of Information Act (FOIA), 

which would abuse the open 

government principles on which the 

United States was founded. Other 

commenters proposed that a final rule 

include procedures for designating 


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officials who may withhold SGI, to 

provide oversight of the system, and to 

allow for review or appeal of SGI or 

SGI–M determinations. A commenter 

stated that the NRC has not provided an 

individual the opportunity to challenge 

an SGI determination by appealing to 

the head of the agency. A commenter 

expressed concerns that a final rule 

needed the types of controls and checks 

that are built into the national security 

classification system. According to the 

commenter, there are no mechanisms 

for reviewing and appealing decisions to 

categorize information as SGI; the rule 

has an inadequate mechanism for 

removing information from SGI status 

once it has been categorized; there are 

no truly independent bodies to exercise 

oversight over SGI determinations; there 

is no recognized channel for getting 

disputes over SGI status into court; and 

there are insufficient mechanisms for 

making the portions of SGI information 

which would not present a risk in the 

form of redacted documents available to 

Congress, the news media, and the 

public. 

Response: Section 147 of the AEA sets 

forth the substantive legal requirements 

governing the protection of SGI. Section 

147 of the AEA does not require the 

Commission to develop FOIA-like 

appeal procedures to resolve individual 

challenges to SGI designation on a caseby-case basis. 

Creation of FOIA-like appeal 

procedures would result in a 

cumbersome administrative process for 

SGI designation and potentially require 

substantial resources to implement and 

administer. The preferred approach is 

the one the Commission is proposing 

here—providing the public notice of 

and opportunity to comment on 

categories of information the 

Commission would consider SGI. 

Throughout this rulemaking, the 

Commission has been open about the 

categories of information it seeks to 

protect and the reasons for protecting 

that information. The Commission is 

giving the public adequate notice of the 

approach and ample opportunity to 

challenge the Commission’s SGI 

designations on a generic basis. There is 

no need to develop procedures for 

challenging the designation of 

information as SGI or SGI–M. 

Comment: One commenter proposed 

that the NRC should followup this 

rulemaking with the deletion of or 

revisions to current orders and advisory 

letters. In the interim, NRC should, by 

order or regulation, state that the revised 

regulations supersede all conflicting 

orders and advisory letters issued prior 

to the effective date of the revision to 

the regulations. 

Response: This revised proposed rule 

incorporates the requirements for SGI 

protection previously described in NRC 

orders and advisory letters. The final 

rule would, on its effective date, 

supersede all SGI orders and advisory 

letters issued prior to that effective date. 

The Commission will, however, take 

administrative action to withdraw all 

previously orders where appropriate. 

Comment: One commenter 

recommended that the NRC rule specify 

that security information or plans 

associated with a licensee possessing, 

using, transporting, or offering for 

transport greater than or equal to 

Category (CAT) I quantities of Strategic 

Special Nuclear Material (SSNM) be 

controlled as Classified National 

Security Information in accordance with 

the provisions of 10 CFR parts 25 and 

95. In addition, the commenter 

recommends that the NRC revise the 

final rule with respect to the protection 

of information associated with security 

information and plans for a licensee 

possessing, using, transporting, or 

offering for transport CAT II and III 

quantities of special nuclear material 

(SNM) to utilize a risk-informed and 

graded approach consistent with the 

change to CAT I SSNM, specifically: 

(1) Security information and plans for 

licensees possessing, using, 

transporting, or offering for transport 

less than a formula quantity of SSNM 

but greater than or equal to a CAT II 

quantity of SNM (consisting of U-233, 

Pu, or high-enriched U-235 (enriched to 

20 percent or more)) should be 

controlled as SGI per the requirements 

of §§ 73.21 and 73.22 of the original 

proposed rule; 

(2) Security information and plans for 

licensees possessing, using, 

transporting, or offering for transport 

less than a CAT II quantity of SNM 

(consisting of U-233, Pu, or highenriched U-235 (enriched to 20 percent 

or more)), but more than 10 kg of a CAT 

III quantity of SNM, or a CAT II quantity 

of low-enriched U-235 (enriched to less 

than 20%) should be controlled as SGI–

M per the requirements of §§ 73.21 and 

73.23 of the original proposed rule; 

(3) The risks associated with security 

information and plans for licensees 

possessing, using, transporting, or 

offering for transport less than a CAT III 

of SNM do not require protection under 

part 73. 

The commenter suggests that this 

approach would provide greater 

regulatory clarity than the NRC’s 

original proposed rule language of ‘‘fuel 

cycle facilities required to implement 

security measures’’ and ‘‘fuel cycle 

facilities’’ in §§ 73.21(a)(1)(i) and 73.22 

introductory text, respectively, by 

clearly identifying de minimis levels of 

SNM requiring protection. 

The commenter also recommends that 

the NRC revise part 76 to incorporate 

this graded approach for certificate 

holders under part 76, because the 

requirements for protection of CAT I, II, 

or III SNM under parts 70 and 76 should 

be the same. 

Response: The revised proposed rule 

language clearly indicates that it only 

applies to information that is not 

classified as Restricted Data or National 

Security Information. If the specific 

information is considered to be 

Restricted Data or National Security 

Information it would be protected as 

such and the SGI provisions would not 

apply. 

The NRC staff agrees that a graded 

approach should be used, and the 

revised proposed rule uses a graded 

approach. The staff agrees that 

additional clarification is necessary to 

explain what is meant by fuel cycle 

facilities. The original proposed rule 

text has been revised to add clarity. Fuel 

fabrication facilities, uranium 

enrichment facilities, uranium 

hexafluoride conversion facilities, and 

independent spent fuel storage 

installations will be subject to the 

provisions in § 73.22 for SGI. Research 

and test reactors and other facilities that 

have special nuclear material of low or 

moderate strategic significance will be 

subject to the provisions of § 73.23 for 

SGI–M. 

Comment: One commenter suggested 

that a final rule either: (1) Remove the 

designation of site access information as 

SGI; or (2) specify that the ‘‘need to 

know’’ includes the protection of 

employment and labor rights, so that 

individuals involved in employmentrelated grievances, arbitration, litigation, 

and/or labor contract negotiations and 

administration may gain access to 

relevant SGI when such individuals 

qualify as ‘‘Individuals Authorized to 

Access Safeguards Information’’. Also, 

the commenter requests that the rule set 

forth a procedure by which employees 

and their representatives may apply to 

gain access to relevant SGI for the 

protection of employment and labor 

rights so that individuals involved in 

employment-related grievances, 

arbitration, litigation and/or labor 

contract negotiations and administration 

may gain access to relevant SGI when 

such individuals do not qualify as 

‘‘Individuals Authorized to Access 

Safeguards information.’’

The commenter asserts that it is 

additionally problematic that site access 

information is SGI because it could lead 

to an unnecessary chilling effect having 

adverse safety implications. Removing 


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site access information as SGI or, 

alternatively, establishing provisions 

whereby employees and their 

representatives may obtain such 

information, will prevent violations of 

individuals’ rights under applicable 

laws and will not compromise the safety 

of nuclear facilities. 

Response: The revised proposed rule 

would not designate ‘‘site access 

information’’ as SGI and is not intended 

to discourage individuals from raising 

safety or security concerns to licensees 

or the NRC. Employees of NRC licensees 

who feel they have been retaliated 

against for raising safety or security 

concerns are encouraged to seek 

potential enforcement action through 

the NRC and to go to the Department of 

Labor for potential personal remedies. 

There is no presumptive ‘‘need to 

know’’ for agents representing 

employees of NRC licensees in 

employment-related grievances. The 

revised proposed rule would not 

establish a special procedure by which 

agents representing employees of NRC 

licensees may have access to SGI, but 

the Commission retains the authority to 

grant such access if the circumstances of 

an individual case so require. 

Comment: One commenter contended 

that the Commission lacks the statutory 

authority to impose regulations for the 

protection of SGI pertaining to the 

security measures of State licensees. 

According to this commenter, the 

licensees or applicants referred to in 

Section 147 of the AEA are clearly those 

of the Commission only, and not of the 

Agreement States. 

Response: Section 147a. of the AEA 

requires the Commission, in relevant 

part, to prescribe such regulations or 

issue such orders as necessary to 

prohibit the unauthorized disclosure of 

SGI. The Commission also has authority 

under Subsections 161b. and 161i. to 

issue rules, regulations, or orders to 

protect the common defense and 

security. Moreover, Section 274m. of the 

AEA, ‘‘Cooperation with States,’’

provides that no agreement entered into 

pursuant to Section 274b. shall affect 

the Commission’s authority under 

Subsections 161b. and, 161i. 

As to the commenter’s assertions 

regarding the terms ‘‘licensee’’ or 

‘‘applicant,’’ the plain language of 

Section 147 refers simply to ‘‘licensee’s 

or applicant’s [detailed information].’’

Section 147 draws no distinction 

between a ‘‘Commission licensee’’ as the 

commenter asserts and an ‘‘Agreement 

State licensee.’’ Thus, on its face, the 

statute does not support the 

commenter’s viewpoint. 

Comment: One commenter suggested 

that a final rule should focus not only 

on SGI and SGI–M material, but should 

include rules for the protection of other 

levels of information. 

Response: The scope of this 

rulemaking, as stated in the original 

proposed rule, is limited to amending 

the regulations for the protection of SGI. 

Other types of information are governed 

by separate requirements. For example, 

an executive order, applicable 

government-wide, controls Classified 

National Security Information. E.O. 

12958, as amended, ‘‘Classified National 

Security Information’’, and related 

directives of the Information Security 

Oversight Office, National Archives and 

Records Administration, April 20, 1995. 

NRC regulations found in 10 CFR 2.390 

govern handling of other categories of 

sensitive unclassified information. The 

NRC has determined that no further 

changes to NRC regulations are 

warranted at this time. 

Comment: One commenter questioned 

the ‘‘correct’’ categorization of 

information the NRC considers to be 

SGI. According to the commenter, when 

a Department of Energy (DOE) facility is 

licensed, there may be difficulties in 

deciding if the information should be 

Classified National Security Information 

(CNSI) or SGI. On the other hand, the 

commenter asserted that ‘‘Official Use 

Only’’ should be considered before 

marking the information as SGI. 

Response: The proposed amendments 

to the regulations reflect the statutory 

definitions of SGI in Section 147 of the 

AEA. The Commission believes that the 

definitions in the revised proposed rule 

accurately reflect the information 

described in Section 147 as SGI. Both 

the relevant proposed amendments to 

part 73 as well as guidance that would 

be issued by the staff would assist 

licensees in correctly designating 

information to be protected as SGI. The 

DOE has previously demonstrated that it 

has a comprehensive program governing 

the classification of information. As 

noted in the original proposed rule, any 

information classified as National 

Security Information would carry that 

designation and not be designated as 

SGI. 

It is appropriate for any entity 

possessing sensitive information, 

classified or otherwise, to consider all 

possible and appropriate classifications/ 

designations of information when 

making decisions to protect such 

information from public disclosure. The 

Commission expects that information 

falling within the definition of SGI will 

be so designated, thus mandating the 

withholding of the information from 

public disclosure and that only 

information properly characterized as 

SGI will be designated as such. In this 

regard, the Commission notes that 

information marked as ‘‘Official Use 

Only’’ does not assure that the 

information will be withheld from 

public disclosure. 

Comment: One commenter recognized 

that requirements in 10 CFR 73.22, for 

SGI, would apply to reactors and 

licensees authorized to possess a 

formula quantity of SSNM, while 

requirements in 10 CFR 73.23, for SGI–

M, would apply to licensees authorized 

to possess certain quantities of source 

and byproduct material and SNM of 

moderate or low strategic significance. 

The commenter pointed out that some 

licensees are authorized to possess, in 

one license, in excess of a formula 

quantity of SSNM, in addition to a 

significant quantity of source material 

and byproduct material. The commenter 

suggested that the rule is not clear on 

whether such a licensee should follow 

§ 73.22 or § 73.23. The commenter 

further suggested that it would seem 

burdensome for a single licensee to have 

separate SGI and SGI–M programs. 

Another commenter noted that industry 

discussions with the NRC led it to 

believe that controlling SGI–M 

documents under its existing SGI 

program was acceptable; however, the 

proposed changes in paragraph (d) of 

§§ 73.22 and 73.23 appear to contradict 

that position and expand the marking 

and handling requirements to apply to 

both SGI and SGI–M documents. That 

commenter noted that, given the 

effectiveness of the current program, 

there does not appear to be any 

justification for the additional marking 

requirements in paragraph (d). 

Response: The NRC agrees with the 

comment that it could be inefficient for 

licensees possessing categories or 

quantities of material under §§ 73.22 

and 73.23 to implement both 

information protection schemes. 

Licensees subject to both §§ 73.22 and 

73.23 would be in compliance with the 

requirements for protection of SGI if 

they implement the higher protection 

standards in § 73.22, or they may choose 

to implement a multi-level approach. 

Licensees with a single-level 

information security system could use 

the marking ‘‘Safeguards Information’’

in place of ‘‘Safeguards Information—

Modified Handling.’’ This alternative 

would be appropriate because the 

facility security measures and 

associated information protection 

requirements would be based on the 

higher category of asset possessed by the 

licensee. 

A primary difference between the SGI 

protection requirements in § 73.22 and 

the SGI–M protection requirements in 

§ 73.23 is how the information is 


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marked and stored. SGI in the former 

category is marked ‘‘Safeguards 

Information’’ while the latter category is 

marked ‘‘Safeguards Information 

designated as Safeguards InformationModified Handling.’’ The different 

markings are associated with different 

storage requirements. SGI described in 

§ 73.22 must be stored in a locked 

security storage container, but SGI 

described in § 73.23 has a less stringent 

storage requirement—the information 

must be stored in a locked file drawer 

or cabinet or may be stored in a security 

container as described in § 73.22. 

Proper marking is necessary when SGI 

is communicated between entities or 

parties so that the recipient does not 

receive a document with markings that 

would require storage in a container that 

the recipient does not possess. It is the 

duty of the licensee or applicant who 

transfers documents containing SGI to a 

party beyond their control to ensure that 

the document is properly marked. 

Without the appropriate document 

markings, the sender inadvertently 

could cause a violation of the 

regulations. 

Comment: One commenter noted that 

the expanded types of documents that 

must be handled as SGI or SGI–M and 

the addition of marking requirements 

will require additional effort and time to 

implement. Therefore, the commenter 

suggested that the rule allow at least one 

year for the licensee to effectively 

implement the requirements. 

Response: The NRC recognizes that 

SGI requirements require effort and time 

to implement, but does not concur that 

one year is necessary for 

implementation. This revised proposed 

rule reflects orders already imposed by 

the Commission and would expand the 

types of security information covered by 

§ 73.2. Considering the scope of the rule, 

the Commission proposes to set an 

effective date for the final rule of 90 

days from publication in the Federal 

Register. 

Comment: One commenter stated that 

the reference in the Supplementary 

Information portion of the original 

proposed rule to criminal penalties for 

violation of Commission requirements 

governing SGI should clarify that 

criminal sanctions are only imposed for 

willful violations. 

Response: In response to this 

comment, the relevant language in 

Section I. (‘‘Background’’) of this revised 

proposed rule has been changed to 

remove ambiguity about the application 

of criminal penalties for violations of 

the AEA (i.e., such penalties apply to 

willful violations only). 

Comment: One commenter asked 

whether DOE facilities licensed by the 

NRC would be excluded from all orders. 

Response: To the extent that the NRC 

has regulatory authority over a DOE 

facility, the NRC has the authority to 

issue orders to the DOE applicable to 

that facility. 

3. Section-Specific Comments 

Parts 60 and 63: Disposal of High-Level 

Radioactive Waste in Geologic 

Repositories; Disposal of High-Level 

Radioactive Wastes in a Geologic 

Repository in Yucca Mountain, Nevada 

Comment: One commenter suggested 

that the degree of information security 

required for facilities licensed under 

parts 60 and 63 is insufficient for the 

protection of National Security 

Information and is inconsistent with 

long-standing NRC classification 

guidance, recent Commission and staff 

actions, as well as the 2004 ‘‘Joint DOE 

and NRC Sensitive Unclassified 

Information and Classification Guide for 

the Office of Civilian Radioactive Waste 

Management Program’’ (CG–OCRWM–1, 

which is non-public). The commenter 

contends that this inconsistency in 

language will cause regulatory 

confusion and could lead to inadequate 

protection of National Security 

Information or inadequate enforcement 

authority. 

Specifically, the commenter notes that 

the proposed language in §§ 70.22, 

70.32, 73.2, and 73.22 refers to physical 

security, safeguards contingency, and 

guard qualification and training plans 

information being controlled as SGI per 

§§ 73.21 and 73.22. However, CG–

OCRWM–1, the commenter notes, 

indicates that certain information 

associated with the proposed Yucca 

Mountain repository will be considered 

National Security Information. 

In addition, the commenter contends 

that §§ 60.21, 60.42, 63.21, and 63.42 

refer to the ‘‘design for physical 

security’’ to be protected as SGI, but 

does not mention the ‘‘physical security 

plan.’’ The commenter suggests that the 

NRC explicitly require the physical 

security plan for a repository licensed 

under parts 60 or 63 be protected as SGI 

or classified information, to ensure that 

the plan itself is properly protected and 

that greater regulatory consistency is 

maintained. In addition, the commenter 

recommends that the NRC revise parts 

60 and 63 to require design for physical 

security and the physical security, 

safeguards contingency, and guard 

qualification and training plans be 

controlled as SGI or classified 

information per parts 25 and 95. 

Response: The SGI definition includes 

the disclaimer that it does not include 

information classified as National 

Security Information or Restricted Data. 

Any information covered by the 

classification guide as constituting 

National Security Information would 

continue to be classified. The proposed 

regulation would cover security related 

information that is not covered by the 

classification guide. Changes to this 

revised proposed rule are not necessary 

to specify which information is 

considered to be National Security 

Information and which is SGI, however, 

changes to the original proposed rule 

have been made in §§ 60.21, 60.42, 

63.21, and 63.42 to clarify that security 

information associated with a geologic 

repository would be protected as SGI or 

as classified information. The NRC has 

also revised the original proposed rule 

language to remove the inconsistency in 

terminology for the ‘‘physical security,’’

‘‘safeguards contingency,’’ and ‘‘guard 

qualification and training plans.’’

Comment: One commenter suggested 

that the program entitled ‘‘Joint DOE 

and NRC Sensitive Unclassified 

Information and Classification Guide for 

the Office of Civilian Radioactive Waste 

Management Program’’ remains an 

adequate and acceptable program, as 

written, for the identification of SGI and 

its continued use in the part 63 

licensing process will be in compliance 

with this rulemaking. 

Response: A classification/ 

designation guide, ‘‘Joint DOE and NRC 

Sensitive Unclassified Information and 

Classification Guide for the Office of 

Civilian Radioactive Waste Management 

Program,’’ has been issued by the NRC 

and the DOE. This guide reflects the 

current laws and regulations governing 

classification and designation of 

information required to be protected 

from unauthorized disclosure. The NRC 

staff believes that this guide represents 

the information proposed to be 

protected by the current rulemaking. 

Part 73: Physical Protection of Plants 

and Materials 

Section 73.2 Definitions 

The Commission received numerous 

comments on the definitions. 

Commenters asked the Commission to 

revise, delete, or add definitions for 

terms used in the rule. Some new terms 

have been added because of changes 

made in other sections of the revised 

proposed rule. Public comments and 

responses to the comments, as well 

other reasons for changes to § 73.2, are 

presented below. 


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Comprehensive Background Check 

Comment: Commenters suggested that 

the term ‘‘comprehensive background 

check’’ be defined. 

Response: The Commission has 

changed the phrase ‘‘comprehensive 

background check’’ to ‘‘background 

check’’ in the new proposed rule. The 

change is intended to more clearly 

distinguish the background check 

requirements of this revised proposed 

rule from the background investigation 

requirements of other regulations 

governing access authorization (10 CFR 

73.56). Background investigations 

required under those regulations are 

arguably more comprehensive. To avoid 

the impression that the background 

check that would be required by this 

rule would be more stringent or probing 

than background investigations, the 

word ‘‘comprehensive’’ has been 

deleted. 

The Commission has included a 

general definition of ‘‘background 

check’’ in § 73.2 of the revised proposed 

rule. A background check performed to 

determine the trustworthiness and 

reliability of an individual to be 

authorized access to SGI or SGI–M 

includes, at a minimum, a criminal 

history check, verification of identity, 

employment history, education, and 

personal references. The EPAct 

expanded the NRC’s authority to 

fingerprint, and as such, entities 

engaged in activities subject to 

regulation by the Commission, entities 

who applied for licenses or certificates 

to engage in Commission-regulated 

activities, and entities who have 

notified the Commission in writing of 

an intent to file an application for 

licensing, certification, permitting, or 

approval of a product or activity subject 

to regulation by the Commission would 

be required under 10 CFR 73.57 to 

conduct criminal history checks, 

including fingerprints, before granting 

access to SGI or SGI–M to the 

employees of the individual’s 

organization. 

Ultimately, the decision whether an 

individual is sufficiently trustworthy 

and reliable to receive SGI or SGI–M is 

made by the person granting access. In 

the case of information held by the NRC 

staff and the originator, the NRC staff 

would make the determination. The 

background check must be sufficient to 

support a trustworthiness and reliability 

determination so that the person 

granting access and the Commission 

have reasonable assurance that 

individuals granted access to SGI do not 

constitute an unreasonable risk to the 

public health and safety or the common 

defense and security. 

To reiterate, the background check 

that would be required by this revised 

proposed rule may not completely 

satisfy the background investigations 

required under other regulations. Nor 

does the trustworthiness and reliability 

determination based on the background 

check that would be required by this 

revised proposed rule satisfy the 

trustworthiness and reliability 

objectives of other regulations. For 

example, determining trustworthiness 

and reliability under 10 CFR 73.56 

requires not only a background 

investigation, but a psychological 

assessment and behavioral observation 

as well. Determining trustworthiness 

and reliability under 10 CFR 26.10 

requires chemical and alcohol testing 

under a fitness-for-duty program. Those 

requirements are separate from the 

requirements of this revised proposed 

rule. 

The NRC staff plans to issue further 

guidance that will include a discussion 

of acceptable background checks to 

support a licensee’s trustworthiness and 

reliability determinations. 

Detailed Control and Accounting 

Procedures 

Comment: One commenter suggested 

that the term ‘‘detailed control and 

accounting procedures’’ for SNM needs 

clarification, for example, as to whether 

it includes: (1) The written directions 

for transferring fuel between the fuel 

pool and the reactor; (2) the outage 

schedule that shows when fuel 

movement occurs; (3) the real-time 

communication channels or videomonitoring to support fuel movement; 

or (4) the computer and software that 

performs the isotopic calculations for 

irradiated fuel. The commenter is 

concerned that restricting access to 

these types of detailed information 

would significantly hamper work 

coordination and communication 

within the protected area, without 

affecting what is commonly known 

outside the protected area in a more 

general sense. 

Response: In response to the request 

in this comment, the Commission notes 

that ‘‘detailed control and accounting 

procedures’’ do not include any of the 

four types of information set forth in 

this comment. Therefore, there should 

be no concern about restricting access to 

these types of information on the basis 

that they are SGI. 

High-Level Radioactive Waste, Spent 

Nuclear Fuel, and Irradiated Reactor 

Fuel 

Comment: A commenter requested 

that these terms be defined in § 73.2. 

Response: The revised proposed rule 

would make conforming changes to 10 

CFR part 72, ‘‘Licensing Requirements 

for the Independent Storage of Spent 

Nuclear Fuel, High-Level Radioactive 

Waste, and Reactor-Related Greater than 

Class C Waste.’’ The terms ‘‘high-level 

radioactive waste’’ and ‘‘spent nuclear 

fuel’’ are defined in existing 10 CFR 

72.3. These definitions of ‘‘high-level 

radioactive waste’’ and ‘‘spent nuclear 

fuel’’ would not be affected and would 

continue to apply. The description of 

‘‘irradiated reactor fuel’’ provided in 

§ 73.37 includes certain spent fuel 

described in parts 71 and 72, is 

consistent with the definition of spent 

fuel in the Nuclear Waste Policy Act 

(NWPA), and appropriately uses a 

graded approach for physical protection 

and safeguards considerations. 

Therefore, the Commission does not 

believe a separate definition of the term 

is needed in § 73.2. 

Safeguards Information (‘‘SGI’’) 

Comment: Commenters stated that the 

definition of this term in the original 

proposed rule is too broad. They asked 

that the terms used in Section 147 of the 

AEA, ‘‘a licensee’s or applicant’s’’

detailed information, be included in the 

rule’s definition of SGI. 

Response: This revised proposed rule 

modifies the definition of SGI to more 

closely track the language in Section 

147, by including the term ‘‘licensee’s or 

applicant’s [detailed information].’’

However, SGI could include 

information other entities generate, e.g. 

vendors, as such information could 

ultimately identify a licensee’s or 

applicant’s detailed procedures, security 

measures, or other information within 

the scope of Section 147. 

Comment: A commenter suggested 

that while security measures to protect 

certain plant equipment vital to the 

safety of production or utilization 

facilities should be protected as SGI, the 

location of the equipment should not be 

included within the definition of SGI. 

Response: As set forth in Section 147 

of the AEA, SGI includes ‘‘security 

measures for the physical protection of 

and the ‘‘location of certain plant 

equipment vital to the safety of 

production or utilization facilities 

involving nuclear material covered by 

paragraphs (1) and (2) [of Section 

147a]’’. The Commission has 

determined, in accordance with Section 

147a.(3) of the AEA, that the 

unauthorized disclosure of this type of 

information could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 

security. As required by Section 


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147a.(3)(A), the Commission applied the 

minimum restrictions necessary to 

protect the health and safety of the 

public or the common defense and 

security in making this determination. 

As noted in the Statement of 

Considerations for the original proposed 

rule, one purpose of this rulemaking is 

to include in part 73 the types of 

information the Commission may 

protect as SGI, based on the description 

of SGI in Section 147 of the AEA. 

Accordingly, the Commission is keeping 

the language which is the subject of this 

comment in the definition of SGI in 

§ 73.2. 

Comment: A commenter requested 

that the definition of SGI in § 73.2 

include language that allows for 

temporary status of SGI, based, for 

example, on a six-month period in 

which there would be an immediate risk 

if the information were disclosed. 

Response: Designation of information 

as SGI is not static. Section 73.22(h), 

‘‘Removal from Safeguards Information 

category’’ would require that documents 

originally containing SGI must be 

removed from the SGI category, in 

accordance with the criteria in 

§ 73.22(h), at such time as the 

information no longer meets the criteria 

contained in part 73. In addition, a 

review of such documents to make that 

determination shall be conducted every 

10 years. Documents that are 10 years or 

older and designated as SGI or SGI–M 

shall be reviewed for a decontrol 

determination if they are currently in 

use or removed from storage. The 

Commission sees no need to modify the 

definition of SGI to reflect the nonpermanent nature of the SGI 

designation, as the commenter requests. 

Comment: According to another 

comment, the definition of SGI should 

not allow a source or byproduct material 

‘‘exemption’’ that would allow the NRC 

to categorize anything as SGI if it 

believed disclosure of that information 

could have an adverse effect on the 

public health and safety or the common 

defense and security. The commenter 

expressed concern that such language 

could be overused or abused, and 

therefore suggested that it be eliminated 

and that the definition of SGI be more 

precise and have clearly defined limits. 

Response: Section 147a.(2) of the AEA 

specifically includes as SGI security 

measures for the physical protection of 

source material or byproduct material in 

quantities determined by the 

Commission to be significant to the 

public health and safety or the common 

defense and security. The Commission 

has appropriately defined the categories 

of information to be protected as SGI or 

SGI–M in this rulemaking. Those 

categories are within the limits of the 

Commission’s authority under Section 

147 of the AEA. 

Comment: A commenter objected to 

the ‘‘blanket exemption’’ in the 

definition of SGI and requested that this 

‘‘exemption’’ be eliminated. According 

to the commenter, such an ‘‘exemption’’

was unnecessary and could adversely 

impact workers’’ and communities’

abilities to monitor health risks. 

Response: The definition of SGI does 

not contain any explicit ‘‘exemption.’’

Therefore, the Commission can only 

surmise as to the ‘‘exemption’’ to which 

this comment refers. The commenter 

may be referring to that portion of the 

definition which reflects the 

Commission’s authority, under Section 

147a.(3) of the AEA, to determine 

certain security measures to be SGI, 

provided certain findings are made 

pursuant to Sections 147a.(3)(A) and 

(B). In exercising this authority, the 

Commission would, as reflected in the 

SGI definition, make the designation by 

order or regulation as specified in 

revised 73.22(a)(5) and 73.23(a)(5). The 

Commission is proposing to modify this 

portion of the definition of SGI to make 

clear that the ‘‘other information’’

would be within the scope of Section 

147. 

Safeguards Information-Modified 

Handling (‘‘SGI–M’’) 

Comment: A commenter believes that 

the definition of this term is unclear and 

should be defined as ‘‘lower-risk 

information’’ and therefore have less 

rigorous restrictions and greater public 

access. 

Response: The definition of SGI–M in 

§ 73.2 is not as specific as the definition 

of SGI in § 73.2. The main reason for 

this is that SGI–M is SGI for which 

modified handling requirements apply. 

As stated in the Statement of 

Considerations for the original proposed 

rule, the term SGI–M ‘‘would be added 

to reflect this new designation for 

marking [and handling] of SGI subject to 

this regulation.’’ 70 FR at 7199. The 

marking and handling requirements for 

SGI–M are set forth in § 73.23, 

‘‘Protection of Safeguards InformationModified Handling: Specific 

Requirements.’’ Those requirements are 

less restrictive than for information 

marked SGI, for example, requirements 

for unattended storage of SGI–M set 

forth in § 73.23(c)(2). The introductory 

text of § 73.23 and paragraph (a) of that 

section specifically describe the types of 

information SGI–M that are subject to 

the handling requirements. Therefore, 

the Commission sees no need to modify 

the definition of SGI–M in the revised 

proposed rule. 

Significant Adverse Effect 

Comment: One commenter proposed 

that a final rule define the term 

‘‘significant adverse effect’’. 

Response: The term ‘‘significant 

adverse effect’’ appears in Section 147.a. 

of the AEA, in the proposed definition 

of SGI, and elsewhere in the revised 

proposed rule. The term reflects the 

Commission’s authority under Section 

147a.(2) and (3) to protect against a 

certain type of unauthorized disclosure 

of information. Such an unauthorized 

disclosure is one which ‘‘could 

reasonably be expected to have a 

significant adverse effect on the health 

and safety of the public or the common 

defense and security by significantly 

increasing the likelihood of theft, 

diversion, or sabotage’’ of material or a 

facility. Thus, a ‘‘significant adverse 

effect’’ is one which could significantly 

increase the likelihood of such effects. 

The Commission believes that this 

statement adequately describes the term 

and a separate definition is not 

necessary. 

Transportation Physical Security Plan 

Comment: One commenter proposed 

that the final rule define the term 

‘‘transportation physical security plan’’. 

Response: The phrase ‘‘transportation 

physical security plan’’ does not appear 

in the revised proposed rule. The new 

proposed rule would require protection 

of ‘‘the composite physical security plan 

for transportation’’ in § 73.22(a)(2)(i), 

and ‘‘information regarding 

transportation security measures, 

including physical security plans and 

procedures’’ in § 73.23(a)(2)(i). The 

revision was made in part because not 

all licensees who would be subject to 

the revised proposed rule are explicitly 

required to have a ‘‘transportation 

security plan.’’

The revised proposed rule is intended 

to protect information detailing the 

physical security measures and 

procedures used to protect source, 

byproduct, and special nuclear material 

in transit, whether or not those 

measures and procedures are contained 

in a document labeled ‘‘transportation 

security plan.’’ Because the term 

‘‘transportation physical security plan’’

is not used in the revised proposed rule, 

there is no need to provide a definition. 

Threat Environment 

Comment: One commenter proposed 

that a final rule define the term ‘‘threat 

environment.’’

Response: The phrase, ‘‘threat 

environment,’’ does not appear in the 

revised proposed rule text and, 

therefore, a definition for that term is 

not warranted. 


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Trustworthiness and Reliability 

Comment: Several commenters from 

both public interest and industry groups 

expressed concern with the proposed 

definition of ‘‘Trustworthiness and 

Reliability’’ and whether it is 

sufficiently clear. One commenter wrote 

that it is conceivable that the criteria 

used to judge ‘‘trustworthiness and 

reliability’’ could be applied arbitrarily 

to restrict access to information by 

persons deemed to have interests in 

opposition to the NRC or the nuclear 

industry. This commenter also 

expressed concern that the procedure by 

which the ‘‘comprehensive background 

check’’ would be conducted is not clear. 

Another commenter expressed the 

opinion that the ‘‘definition of 

trustworthiness and reliability does not 

clearly address how its requirements 

will be uniformly applied for all classes 

of individuals, nor is it clear as to 

whether there is a necessity for 

continued monitoring, nor is it clear 

what process an individual who is not 

a utility employee and does not have 

unescorted access must undergo to 

satisfy the criteria.’’

A third commenter suggested that the 

definition of trustworthiness and 

reliability should include a link to 

§§ 73.56 and 26.10 such that a positive 

conclusion for access authorization and 

fitness for duty would allow a licensee 

to conclude an individual is trustworthy 

and reliable; however, unescorted 

access should not be a requirement for 

‘‘trustworthiness and reliability.’’

Finally, along similar lines, one 

commenter questioned whether 

elements in §§ 73.56 and 26.10 must be 

completed in order to determine 

trustworthiness and reliability. If that is 

the case, the commenter suggested that 

it should be specified. The commenter 

also expressed concerns that such a 

definition would be challenging to 

administer, especially for contract 

engineering firms who are never at the 

site. 

Response: Ultimately, the decision 

whether an individual is sufficiently 

trustworthy and reliable to receive SGI 

is made by the person granting access 

based on a background check. The 

background check must be sufficient to 

support the trustworthiness and 

reliability determination so that the 

person granting access and the 

Commission have reasonable assurance 

that granting an individual access to SGI 

does not constitute an unreasonable risk 

to the public health and safety or the 

common defense and security. The 

general elements of a background check 

are defined in the revised proposed rule 

and discussed briefly above. 

Not all persons who would be subject 

to this rule will have fitness for duty or 

access authorization programs, so the 

revised proposed rule does not include 

cross-references to trustworthiness and 

reliability requirements in §§ 26.10 or 

73.56. Trustworthiness and reliability 

determinations required by those 

regulations may inform or serve as the 

trustworthiness and reliability 

determination that would be required 

under this revised proposed rule, if 

those determinations are based on a 

background check that also meet the 

requirements of this rule. The NRC staff 

plans to issue further guidance that will 

include discussion of acceptable 

background checks to support a 

licensee’s trustworthiness and reliability 

determinations. 

There is no requirement in this 

revised proposed rule that an individual 

determined to be trustworthy and 

reliable undergo a periodic background 

check to confirm or monitor 

trustworthiness and reliability. 

However, should a licensee learn of 

information that would reasonably call 

into question the trustworthiness and 

reliability of an individual authorized 

access to SGI or SGI–M, the licensee 

should re-evaluate the individual. In the 

case of NRC adjudicatory proceedings 

where subsequent requests for access 

are made, a new determination may be 

required depending on the length of 

time that has elapsed between requests. 

The trustworthiness and reliability 

determination based on a background 

check that would be required does not 

necessarily satisfy the trustworthiness 

and reliability objectives of other 

regulations. For example, determining 

trustworthiness and reliability under 10 

CFR 73.56 requires not only a 

background investigation, but a 

psychological assessment and 

behavioral observation as well. 

Determining trustworthiness and 

reliability under 10 CFR 26.10 requires 

chemical and alcohol testing under a 

fitness-for-duty program. Those 

requirements are separate from the 

requirements of this rule. 

The Commission realizes that the 

trustworthiness and reliability 

requirement could be difficult to 

administer. But the same is true of many 

requirements aimed at monitoring the 

behavior and character of individuals. 

That does not make the requirement any 

less essential to ensuring safety and 

security. Determining trustworthiness 

and reliability is crucial to minimizing 

the risk that SGI will be compromised, 

and the Commission expects persons 

making trustworthiness and reliability 

determinations to do so in a fair and 

reasoned way. 

Section 73.21 Protection of Safeguards 

Information: Performance Requirements 

Comment: One commenter suggested 

that § 73.21 be revised to require SGI 

protection for information associated 

with the transportation of spent nuclear 

fuel (SNF) or high level waste (HLW) in 

greater quantities than 15 grams in order 

to be consistent with the NRC’s fissile 

exemption limit for transportation 

purposes found in § 71.15(b). As a 

conforming change, the commenter also 

proposed that § 73.2 be revised to 

include definitions for ‘‘spent nuclear 

fuel,’’ ‘‘high-level radioactive waste,’’

and ‘‘irradiated nuclear fuel,’’ and that 

§ 73.72 should be revised in the final 

rule to refer to advance notifications of 

shipments of greater than 15 grams of 

SNF or HLW. 

Response: The Commission believes 

that the physical protection measures 

for shipments involving 100 grams or 

more of irradiated reactor fuel are 

appropriately controlled as SGI per 

§ 73.22. Detailed security measures, 

physical security plans and procedures 

for the transportation of source, 

byproduct, and SNM in greater than or 

equal to Category 1 quantities of 

concern are designated as SGI–M 

pursuant to § 73.23(a)(2)(i). Those 

quantities cover the lower threshold for 

material as proposed by the commenter. 

NRC orders issued to persons 

transporting such materials require 

protection of such information and 

material when in transit. 

In response to the comment 

requesting definitions of the terms 

‘‘spent nuclear fuel,’’ ‘‘high-level 

radioactive waste,’’ and ‘‘irradiated 

nuclear fuel,’’ the Commission noted 

that the first two terms are defined in 10 

CFR 72.3 and the third term is described 

in § 73.37. Therefore, separate 

definitions of these terms in part 73 are 

unnecessary. 

Section 73.21(a)(1) 

Comment: Two commenters suggested 

that the use of the terms ‘‘fuel cycle 

facilities required to implement security 

measures’’ in § 73.21(a)(1)(i) and ‘‘fuel 

cycle facilities’’ in the introductory 

language of § 73.22 are unclear. The 

commenters requested clarification on 

whether this is meant to apply to all fuel 

cycle facilities, or only those authorized 

to possess a formula quantity of special 

nuclear material, and not low strategic 

significance fuel cycle facilities, where 

SGI–M requirements might apply. 

Response: The Commission has 

changed the text of the new proposed 

rule by deleting the phrase ‘‘fuel cycle 

facilities’’ and replacing it with 

‘‘uranium hexafluoride production 


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facilities, fuel fabrication facilities, and 

uranium enrichment facilities.’’ Fuel 

cycle licensees authorized to possess a 

formula quantity of SSNM remain 

subject to the requirements of § 73.22 as 

originally proposed. 

Section 73.21(a)(2) 

Comment: Two commenters proposed 

that § 73.21(a)(2) be amended to state 

that information protection procedures 

employed by Federal law enforcement 

agencies are also deemed to meet the 

general performance requirement, as 

some licensee facilities are located on 

Federal lands and Federal law 

enforcement officers respond to security 

events. 

Response: In response to this 

comment, the proposed § 73.21(a)(2) is 

being modified to provide that 

information protection procedures 

employed by law enforcement agencies 

are presumed to meet the general 

performance requirements included in 

that section. 

Section 73.22 Protection of Safeguards 

Information: Specific Requirements 

Section 73.22(a) Information To Be 

Protected 

Comment: One comment 

recommended that the NRC should 

specify all the types of information and 

documents that are part of the 

‘‘expansion’’ of what is considered to be 

SGI. Clarification is needed as to the 

meaning and application of undefined 

terms such as ‘‘additional security 

measures,’’ ‘‘protective measures,’’ and 

‘‘interim compensatory measures.’’

Response: Both the definition of SGI 

and the description of the specific types 

of information to be protected as SGI 

provide sufficient details as to what 

information constitutes SGI. Any other 

information to be designated as SGI 

would be set forth in an order or 

regulation, in compliance with Section 

147 of the AEA. Additionally, the terms 

‘‘additional security measures,’’

‘‘protective measures,’’ and ‘‘interim 

compensatory measures,’’ are being 

deleted from the text of § 73.22(a), and 

therefore need not be defined. 

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

Physical Protection 

Comment: A commenter suggested 

that §§ 73.22(a)(1) and 73.23(a)(1) 

should be narrowed to those documents 

that contain sufficient detail on the 

licensee’s actual strategies or procedures 

that, if inadvertently disclosed, could 

reasonably be expected to have a 

significant adverse effect on the health 

and safety of the public or the common 

defense and security by significantly 

increasing the likelihood of theft, 

diversion, or sabotage of material or a 

facility. The commenter indicated that it 

is unnecessary to categorize documents 

as SGI or SGI–M unless the information 

is specific to the facility or its protective 

strategy, or unless the protective 

features cannot be readily observed by 

an unauthorized individual from 

outside the Protected Area. 

Response: Proposed §§ 73.22 and 

73.23 would not protect all information 

related to the materials and facilities 

described in those sections. Sections 

73.22 and 73.23 are explicitly limited to 

the protection of SGI and SGI–M. By 

definition, SGI and SGI–M is 

information the unauthorized disclosure 

of which could reasonably be expected 

to have a significant adverse effect on 

the health and safety of the public or the 

common defense and security by 

significantly increasing the likelihood of 

sabotage or theft or diversion of source, 

byproduct, or SNM. Sections 73.22(a)(1) 

and 73.23(a)(1) do not expand that 

limited scope. No changes have been 

made to the revised proposed rule. 

The Commission disagrees that SGI 

should include only information 

specific to a facility or its defensive 

strategy. While such information clearly 

requires protection, so does certain 

generic information, such as the design 

basis threat implementing guidance, 

which describe in detail the specific 

operational and tactical capabilities of 

the hypothetical adversary force more 

generally described in the design basis 

threat rule. Those details, which are 

generically applicable to a number of 

licensees, could be used to identify 

licensee security measures, and if 

disclosed, could reasonably be expected 

to have a significant adverse effect on 

the health and safety of the public or the 

common defense and security by 

significantly increasing the likelihood of 

theft, diversion, or sabotage of material 

or a facility. 

Comment: One commenter suggested 

that § 73.22(a)(1)(ii) be amended to 

clarify the term ‘‘substantially represent 

the final design features.’’ The 

commenter suggests, for example, that 

the language ‘‘substantially represent 

the final design features such that an 

engineer or security professional could 

detect vulnerabilities’’ would provide 

the necessary clarity. 

Response: The Commission does not 

believe the language the commenter 

proposes would clarify this provision 

because the inclusion of the phrase 

‘‘such that an engineer or security 

professional could detect 

vulnerabilities’’ adds an unnecessary 

level of complexity. Determining 

‘‘which site specific drawings, diagrams, 

sketches, or maps substantially 

represent final design features of the 

physical security system,’’ as stated in 

the revised proposed rule text, is less 

subjective. In addition, SGI need not 

contain information limited to 

vulnerabilities. 

Comment: A commenter 

recommended that § 73.22(a)(1)(ii) be 

modified to exclude from the SGI 

designation site specific drawings, 

diagrams, sketches, or maps that 

substantially represent the final design 

features of the physical security system 

which are accessible to members of the 

public. According to the commenter, 

information relating to security features 

such as fences, barriers, guard posts, 

and certain security cameras are in plain 

view and therefore not appropriate for 

designation as SGI. The commenter also 

proposed a similar change to 

§ 73.22(1)(a)(iii) that would apply to 

alarm system layouts showing the 

location of intrusion detection devices, 

alarm assessment equipment, alarm 

system wiring, emergency power 

sources, and duress alarms which are 

accessible to the public. 

Response: In response to these 

comments, the paragraphs cited above 

are being changed to add the phrase 

‘‘not clearly discernible by members of 

the public’’ at the end of each 

paragraph. 

Comment: Two commenters felt that 

the meaning of ‘‘emergency power 

sources’’ in §§ 73.22(a)(1)(iii) and 

73.23(a)(1)(ii) is not sufficiently clear as 

to whether it included emergency power 

sources for alarm systems only or any 

and all emergency power systems. One 

commenter proposed changing the 

language to read: ‘‘As installed details of 

alarm system layouts, location, and 

electrical design, that if disclosed, could 

facilitate gaining unauthorized access to 

special nuclear material, nuclear 

facilities, or Safeguards Information’’. 

Response: The Commission has 

modified the revised proposed rule text 

in response to this comment by 

inserting the additional words ‘‘for 

security equipment’’ after the term 

‘‘emergency power sources’’. 

Comment: Two commenters noted, 

with respect to § 73.22(a)(1)(iv), that not 

all written physical security orders and 

procedures need to be SGI, as some 

security procedures are general or 

administrative and do not require SGI 

protection. Moreover, the commenters 

stated, designation of all security 

procedures as SGI would delay training 

new employees in the security force. 

Therefore, the commenters proposed 

that § 73.22(a)(1)(iv) be modified to 

allow flexibility in the control of 

security procedures. Another 

commenter proposed amending 


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64016 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

§ 73.22(a)(1)(iv) to read ‘‘[w]ritten 

physical security protective strategy 

orders and procedures for members of 

the security organization, duress codes, 

and patrol routes’’. 

Response: In response to these 

comments, the phrase ‘‘Written physical 

security orders and procedures for 

members of the security organization, 

duress codes, and patrol schedules’’ is 

modified in the revised proposed rule to 

read ‘‘Physical security orders and 

procedures issued by the licensee for 

members of the security organization 

detailing duress codes, patrol routes and 

schedules, or responses to security 

contingency events’’. 

Comment: A commenter suggested 

that it is unnecessary to classify 

documents as SGI or SGI–M unless the 

information is specific to the facility 

and its protective strategy. Therefore, 

the commenter proposed changing 

§ 73.22(a)(1)(v) to read ‘‘[s]ite-specific 

design features or evaluations of sitespecific plant radio and telephone 

communications systems revealing 

vulnerabilities or limitations in 

operating capability’’ in order to narrow 

the scope of documents to those that 

contain sufficient detail on the 

licensee’s actual strategies or procedures 

that, if disclosed, could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 

security by significantly increasing the 

likelihood of theft, diversion, or 

sabotage of material or a facility. 

Response: In response to this 

comment, the language of 

§ 73.22(a)(1)(v) has been changed in the 

revised proposed rule to read ‘‘Site 

specific design features of plant 

security’’ at the beginning of the section. 

These modifications to the text are not 

meant to address the broader concern 

already addressed in response to 

comments on § 73.22(a)(1) and 

§ 73.23(a)(1). In addition, and as 

previously stated, the incorporation of 

such language in this section of the rule 

does not exclude certain generic 

information applicable to a number of 

licensees. Such information could be 

used, for example, to identify a specific 

licensee’s security measures. 

Comment: One comment stated that 

§§ 73.22(a)(1)(vii), 73.22(a)(1)(viii), and 

73.22(a)(1)(ix) reference the safeguards 

contingency plan and training and 

qualification plan. The commenter then 

pointed out that these are now part of 

the composite security plan that was 

submitted as a result of the April 29, 

2003 Order. 

Response: Before the April 2003 

Order, power reactor licensees were 

required to have the following three 

separate plans: ‘‘physical security plan’’, 

‘‘safeguards contingency plan’’, and 

‘‘guard training and qualification plan’’. 

In response to that order, power reactor 

licensees chose to consolidate these 

three separate plans into a single 

‘‘security plan’’. The original proposed 

rule text has been revised in response to 

the comment to make clear that the 

composite physical security plan is 

considered SGI under § 73.22(a)(1)(i). 

Comment: One commenter suggests 

modifying § 73.22(a)(1)(ix) to read ‘‘[a]ll 

portions of the composite facility guard 

qualification and training program that 

addresses the licensee’s protective 

strategy’’, which would delete the 

language ‘‘plan disclosing features of the 

physical security system or response 

procedures’’ from the end of that 

paragraph. The commenter further 

suggests that, given that most training 

and qualification plans do not include 

detailed information, these plans be 

‘‘decontrolled’’ by the NRC. 

Response: In response to this 

comment, the beginning of 

§ 73.22(a)(1)(ix) has been changed in the 

revised proposed rule to delete the 

phrase ‘‘all portions of [the composite 

facility guard qualification and training 

plan]’’. The Commission acknowledges 

that there may be some non-SGI in 

various licensee security plans and 

accordingly is deleting the phrase ‘‘all 

portions’’. It is not entirely clear what 

this commenter means in seeking to 

have this category of information 

‘‘decontrolled’’. To the extent the 

commenter wants training and 

qualification plans to no longer be 

considered SGI, the Commission is not 

taking that action. Contrary to what is 

asserted in support of this request, this 

category of information includes details 

warranting protection against 

unauthorized disclosure. 

Comment: One commenter proposes 

changing the word ‘‘identity’’ in 

§ 73.22(a)(1)(x) to ‘‘agency’’ or 

‘‘organization’’ to eliminate any 

potential confusion that ‘‘identity’’

could refer to identification of specific 

individuals. In addition, the commenter 

proposes replacing ‘‘safeguards or 

security emergencies’’ with ‘‘security 

contingency events’’ and making clear 

that ‘‘armament’’ refers specifically to 

the armament of response forces. To 

have ‘‘armament’’ apply to licensees 

would seem to require licensees to 

protect as SGI each purchase order for 

weapons. The commenter further 

proposes eliminating ‘‘information 

concerning’’ language and using the 

current part 73 language, and therefore 

having the subsection read ‘‘[r]esponse 

plans to specific threats detailing size, 

disposition, response times, and 

armament of responding forces.’’

Response: The Commission is 

changing the language of this provision 

in the revised proposed rule by deleting 

the phrase ‘‘safeguards or security 

emergencies’’ and inserting the phrase 

‘‘security contingency events.’’ As so 

worded, the section emphasizes that the 

requirement is security-related and also 

maintains consistency with other 

regulatory provisions. Also, the word 

‘‘identity’’ is being deleted from the 

phrase to avoid the implication that this 

provision refers to the identification of 

specific individuals. Finally, the phrase 

‘‘of response forces’’ is added after the 

word ‘‘armament’’ in the revised 

proposed rule. The Commission is 

retaining the language in this paragraph 

connoting that there could be features of 

response forces related to or derived 

from those specified in the rule text 

which also warrant protection as SGI. 

The Commission also declines to adopt 

the commenter’s proposed language that 

would replace the term ‘‘response 

forces’’ with ‘‘response plans’’ because 

security-related plans are addressed 

elsewhere in §§ 73.22(a)(1). 

Comment: One commenter suggested 

modifying § 73.22(a)(1)(xi) to delete the 

language ‘‘including the tactics and 

capabilities required to defend against 

that threat’’ because this is covered 

elsewhere in the regulations. In 

addition, the commenter suggested 

deleting ‘‘or other information’’ as it 

leaves too much room for interpretation. 

Another commenter suggested deleting 

references to the design basis threat in 

this subsection and elsewhere, or 

creating more prescribed provisions for 

exactly what is to be covered with 

respect to design basis threat 

information, as such information is 

important to public participation and 

knowledge. 

Response: The phrase ‘‘or other 

information’’ is deleted and the section 

is reworded to clarify which 

information related to the design basis 

threat would be considered SGI. 

Specifically, the Adversary 

Characteristics Document and other 

design basis threat implementing 

guidance, which describe in detail the 

specific operational and tactical 

capabilities of the hypothetical 

adversary force more generally 

described in the design basis threat rule, 

are considered SGI. The phrase 

‘‘including the tactics and capabilities 

required to defend against the threat’’ is 

deleted from the revised proposed rule 

because it is not necessary. Those tactics 

and capabilities are described in 

licensee security plans which are 

considered to be SGI. 


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Comment: Several commenters 

expressed the concern that language in 

§ 73.22(a)(1)(xii) would include 

engineering and safety analyses and 

emergency planning procedures or 

scenarios within SGI protection, and 

this would suppress information of 

significant concern to the public. 

Commenters also suggested that the 

criterion found in § 73.22(a)(1)(xii) was 

not sufficiently precise so as to alert a 

licensee as to the type of information to 

be protected, that the proposed language 

‘‘exposes such a licensee to secondguessing or enforcement action.’’ One 

commenter representing a public 

interest watchdog group stated that the 

public has a ‘‘right to know what risks 

they face from nearby nuclear facilities’’

and that ‘‘public participation has 

proven an effective tool for improving 

facility performance and safety.’’ The 

commenter expressed concern that if the 

public does not know what is going on 

at a facility, it cannot effectively engage 

the facility and advocate for safety 

improvements and that if the public was 

not aware of emergency planning 

procedures, it would be at risk from an 

accident or a possible attack against a 

facility. In addition, the commenter 

proposes that the NRC should retain the 

current rule language that allows only 

‘‘portions of’’ documents to be protected 

as SGI, in order to maximize the amount 

of information that the public receives 

without divulging any protected 

information. 

Another commenter similarly stated 

that ‘‘it is crucially important that the 

public has access to information 

regarding protective measures taken by 

operators to defend their facilities so 

that they may be held accountable’’ and 

that the ‘‘broad category of information 

that is included in these sections, 

including, especially, safety analyses, 

emergency planning procedures, and 

any other information related to the 

security of a nuclear facility, sharply 

hinders the public’s ability to judge the 

competency of nuclear operators and 

the adequacy of their programs to 

protect their facilities and materials.’’

Another commenter expressed 

concerns that § 73.22(a)(1)(xii) could be 

used to ‘‘suppress faulty assumptions as 

the basis for engineering and safety 

analyses, which is a significant concern 

to public safety policy analysts and 

intervenors.’’

Other commenters also provided 

comments with regard to 

§§ 73.22(a)(1)(xii) and 73.22(a)(2)(viii). 

One commenter proposed that it should 

be clear that ‘‘engineering and safety 

analyses’’ mean only such analyses 

pertinent to physical security and not 

plant safety, as that information is 

already public. Industry commenters 

expressed concern that control of 

emergency planning procedures as SGI 

would make coordination with local 

and state agencies difficult, as well as 

affected non-governmental entities, and 

could jeopardize effective and safe 

operation of a plant. More specifically, 

one commenter notes broad 

interpretation of these requirements 

would require state and local 

governmental entities who are not in 

law enforcement but are involved in 

emergency planning to be verified as 

‘‘trustworthy and reliable’’ by the 

licensee in order for the licensee to 

comply with 10 CFR part 50, Appendix 

E IV.B. 

One commenter recommends revising 

the wording at the end of 

§ 73.22(a)(1)(xii), proposed as ‘‘by 

significantly increasing the likelihood of 

theft, diversion, or sabotage of material 

or a facility,’’ to ‘‘significantly 

increasing the likelihood of radiological 

sabotage or theft or diversion of source, 

byproduct, or special nuclear material,’’

in order to correspond to the wording 

used in the definition of SGI. 

Response: In response to these 

comments, the phrase ‘‘related to’’ at the 

beginning of § 73.22(a)(1)(xii) is being 

changed in the revised proposed rule to 

‘‘revealing site specific details of’’. The 

phrase ‘‘unauthorized disclosure of such 

information’’ is changed to 

‘‘unauthorized disclosure of such 

analyses, procedures, scenarios, and 

information’’. These revisions clarify 

that the analyses, procedures, scenarios, 

and other information described in this 

section are considered to be SGI only if 

they reveal ‘‘site specific details’’ about 

the physical protection of the facility or 

source material, byproduct material, or 

SNM. To clarify the fact that 

‘‘emergency planning procedures or 

scenarios’’ should remain publicly 

available, to the extent possible, that 

phrase is being changed here and 

elsewhere in the rule text, to ‘‘securityrelated procedures or scenarios’’. 

However, security-related information, 

wherever it occurs, including security 

information that is found within a 

specific emergency preparedness 

procedure, could potentially need to be 

protected as SGI. Also, in order to 

provide greater specificity in the revised 

proposed rule text, the phrase ‘‘material 

or facility’’ at the end of the revised 

proposed rule text is changed to 

‘‘source, byproduct, or special nuclear 

material’’. 

Certain sections of the current rule 

language, as well as sections of the 

revised proposed rule text, refer to 

‘‘portions of’’ documents to be protected 

as SGI. For example, current 

§ 73.21(b)(3)(i) designates, in pertinent 

part, ‘‘[p]ortions of safeguards 

inspection reports’’ to be SGI. Similarly, 

in the revised proposed rule text, 

§ 73.22(a)(3)(i) refers to ‘‘portions of’’

inspection reports as constituting SGI. 

Therefore, it is not correct that the 

current rule only allows protection of 

portions of documents or information as 

SGI. 

Because the Commission is revising 

the original proposed rule to more 

closely track the language of Section 147 

of the AEA, the Commission is 

declining to make the suggested change 

to the end of § 73.22(a)(1)(xii) by 

substituting ‘‘radiological sabotage’’ for 

the statutory language of ‘‘sabotage.’’

The relevant portions of Section 147 

refer simply to ‘‘sabotage’’ and the 

Commission is using that term in the 

revised proposed rule. 

The Commission’s intent in revising 

the requirements in part 73 for 

protection of SGI is not to deprive the 

public of information or to suppress 

faulty assumptions in engineering 

analyses and safety analyses, as some 

commenters assert. One of the main 

purposes of these proposed 

amendments is to provide in 10 CFR 

part 73 the breadth of information that 

Section 147 of the AEA requires the 

Commission to protect. The 

Commission determined that 

unauthorized release of this information 

could result in harm to the public health 

and safety or the common defense and 

security. 

Comment: One commenter noted that, 

‘‘as proposed, § 73.22(a)(1)(xiii) requires 

‘Information required by the 

Commission pursuant to 10 CFR 

73.55(c)(8) and (9)’ to be protected as 

SGI without explicitly identifying what 

must be protected as SGI’’. The 

commenter suggested that there is no 

apparent reason to protect this 

information as SGI and the requirement 

should therefore be deleted. 

Response: The Commission is 

deleting this paragraph because the 

information described in this paragraph 

would be protected in § 73.22(a)(1)(xi). 

Section 73.22(a)(2) Physical Protection 

in Transit 

Comment: One commenter stated that 

§§ 73.22(a)(2) and 73.23(a)(2) would 

cover transportation related information 

that is under the DOT’s regulations in 

49 CFR part 15, ‘‘Protection of Sensitive 

Security Information (SSI)’’. If 

implemented in its current form, the 

commenter continues, these regulations 

will require licensees to handle, at a 

minimum, transportation security plan 

risk assessments as both SSI and SGI or 

SGI–M, duplicative requirements that 


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add no discernible benefit. Furthermore, 

the commenter states, classification of 

certain transportation related 

information as SGI will be unworkable. 

Therefore, the commenter proposes, all 

of the regulatory agencies should reach 

consensus on what information should 

be protected, reduce the number of 

classifications, and develop a single 

cohesive nationwide set of information 

security protection standards that 

includes a clear definition of each 

classification. If the NRC does impose 

duplicative requirements for protection 

of transportation security-related 

information in addition to DOT’s 

regulations, the commenter further 

suggests, the NRC should replace 

‘‘transportation physical security plan’’

with ‘‘transportation security plan’’ to 

be consistent with DOT regulations, or 

provide a definition of ‘‘transportation 

physical security plan.’’

Response: The NRC recognizes that 

transportation of radioactive material 

may be subject to the requirements of 

both the DOT and the NRC with respect 

to protective markings, SSI, SGI, and 

SGI–M. However, requirements for the 

protection SSI are not as strict as NRC 

SGI or SGI–M protection requirements. 

The NRC believes that the information 

described in § 73.22(a)(2)(i) requires the 

higher protection afforded by the 

designation SGI. Similarly, the 

information set forth in § 73.23(a)(2)(i) 

must be protected as SGI–M. Finally, as 

noted previously, the Commission has 

replaced the phrase ‘‘transportation 

physical security plan’’ with ‘‘composite 

physical security plan for 

transportation’’ to distinguish NRCrequired plans from others. 

Comment: One commenter contended 

that the new language of 

§ 73.22(a)(2)(ii), ‘‘Routes and quantities 

for shipments of spent fuel are not 

withheld from public disclosure,’’ no 

longer assures public access to route 

and quantity information for shipments 

of byproduct or source material or 

nuclear waste. The commenter 

expresses concern that the NRC does not 

have the authority to limit access to this 

information, for which Congress has 

specifically protected public disclosure 

in the AEA. The commenter therefore 

proposes that the NRC ensure that the 

language in the final rule does not 

undermine the AEA by narrowing 

disclosure requirements. 

Response: The revised proposed rule 

would not designate shipping routes 

and quantities as SGI or SGI–M. 

However, the rule would designate 

schedules and itineraries as SGI and 

SGI–M. Schedules and itineraries 

combine route and quantity information 

with specific information about the 

timing and security of a shipment to 

create information that, if disclosed, 

could reasonably be expected to have a 

significant adverse effect on the health 

and safety of the public or the common 

defense and security by significantly 

increasing the likelihood of sabotage or 

theft or diversion of nuclear material. 

Section 147a.(3) of the AEA provides in 

part that ‘‘[n]othing in this Act shall 

authorize the Commission to prohibit 

the public disclosure of information 

pertaining to routes and quantities of 

shipments of source material, byproduct material, high level nuclear 

waste, or irradiated nuclear reactor 

fuel.’’ The revised proposed rule text 

has been revised to be more consistent 

with the language of Section 147a.(3) of 

the AEA. 

Comment: One commenter proposed 

removing § 73.22(a)(2)(vii) on the 

grounds that it is extremely vague and 

would allow the NRC to protect from 

public disclosure any ‘‘information 

concerning the tactics and capabilities 

required to defend against attempted 

radiological sabotage, or theft and 

diversion of formula quantities of 

special nuclear material, or related 

information.’’ The commenter expressed 

concern over the NRC’s use of ‘‘vague 

terms’’ such as ‘‘any information 

concerning’’ and ‘‘related information’’

and suggested that this provision could 

be used to conceal information about a 

town’s capabilities to respond to an 

attack on a rail car passing through it. 

Response: The language ‘‘related 

information’’ portion of this section has 

been deleted from the text of the revised 

proposed rule because it is redundant of 

the language at the beginning of this 

section (‘‘information concerning’’). The 

text of the rule does not include the 

phrase ‘‘any information concerning’’ as 

stated in the comment. 

Comment: Commenters expressed 

concerns that § 73.22(a)(2)(viii) would 

exempt safety analyses, emergency 

planning procedures, or other 

information about the protection of 

transported materials from public 

disclosure as SGI. Accordingly, 

commenters recommended revising or 

removing § 73.22(a)(2)(viii) in order to 

ensure that the public has access to 

emergency procedures and safety 

analyses information they need to 

protect their community. A commenter 

proposed removing the proposed 

§§ 73.22(a)(2)(viii) and 73.23(a)(2)(iv) 

and (v) on the grounds that these 

proposed changes would prevent 

communities from learning what steps 

are being taken to protect them and from 

participating in the process of keeping 

the community safe. The commenter 

expressed concerns that these 

provisions are overly vague in what 

information may be protected from 

public disclosure and could result in too 

much information being concealed from 

the public. 

Response: The Commission 

recognizes that the public needs 

information about safety and emergency 

planning and will continue to make 

much of that information publicly 

available. Therefore, the phrase 

‘‘emergency planning procedures or 

scenarios’’ is being changed to 

‘‘security-related procedures or 

scenarios’’. But a limited amount of 

safety and emergency planning-related 

information, if publicly disclosed, could 

be used to identify security measures for 

the protection of nuclear facilities and 

materials, thereby significantly 

increasing the likelihood of sabotage or 

theft and diversion. For example, 

emergency planning information that 

specifies response times for local law 

enforcement, or identifies the size, 

tactics, and capabilities of first 

responders to a radiological event could 

be very useful to a potential adversary 

in planning an attack. Accordingly, that 

information could conceivably need to 

be protected as SGI. 

The Commission’s intent is not to 

prevent public knowledge of vital safety 

and emergency information. Hence, the 

revised proposed rule has been changed 

in response to comments that it was too 

broadly worded as originally proposed. 

The protection required for engineering 

and safety analyses and security-related 

procedures or scenarios under 

§ 73.23(a)(1)(x) would be appropriately 

limited to information that could 

reasonably be expected to have a 

significant adverse effect on the health 

and safety of the public or the common 

defense and security by significantly 

increasing the likelihood of theft, 

diversion, or sabotage of source 

material, byproduct material, or SNM. 

Section 73.22(a)(3) Inspections, 

Audits, and Evaluations 

Comment: A commenter objected to 

what it saw as the broadening of 

§ 73.22(a)(3) and stated that the 

proposed change lacks specificity and 

could potentially conceal public health, 

safety, security, and environmental 

concerns from public disclosure. The 

commenter expressed concern that the 

provision could be interpreted to 

include and suppress information that 

rightfully should be brought to the 

attention of the public and policy 

makers. 

Response: The Commission has 

eliminated references to specific 

licensees from the revised proposed 

rule. This clarifies the scope of the rule 


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and simplifies the text. The commenter 

provides no basis for the assertion that 

the Commission would use revised 

§ 73.22(a)(3) to conceal information 

from public disclosure. The regulations 

provide access to individuals who have 

a ‘‘need to know’’ the information and 

who are trustworthy and reliable. 

Protecting SGI and SGI–M from 

unauthorized disclosure does not equate 

to concealing or suppressing 

information that should be in the public 

domain. 

Comment: Another commenter 

suggested that the NRC restore the 

provision in proposed § 73.22(a)(3)(i) to 

allow the release of information 

developed in inspections, audits, and 

evaluations concerning weaknesses and 

problems that have been corrected. 

This paragraph retains the provision 

in current § 73.21(b)(3)(i) which 

designates as SGI portions of safeguards 

inspection reports, evaluations, audits, 

or investigations that contain details of 

a licensee’s or applicant’s physical 

security system or that disclose 

uncorrected defects, weaknesses, or 

vulnerabilities in a licensee’s or 

applicant’s physical security system. 

This provision implies that corrected 

defects, weaknesses, or vulnerabilities 

will be released. 

Response: In response to this 

comment, the proposed rule is revised 

in part, to carry over the portion of 

§ 73.21 that provides for the release of 

information regarding defects, 

weaknesses, or vulnerabilities after 

corrections have been made. However, 

as stated in the revised text, the 

disclosure of such information is not 

automatic, and is subject to an 

assessment taking into account such 

factors as the results of trend analyses 

and the impacts of disclosures on other 

licensees having similar physical 

security systems. The partial revision of 

the proposed rule text is consistent with 

the policy to increase the amount of 

public information released pursuant to 

the Security Oversight Process. 

Section 73.22(a)(5) 

Comment: Two commenters suggested 

that § 73.22(a)(5) lacked specificity. One 

commenter expressed concerns that 

§ 73.22(a)(5) was not specific enough to 

‘‘allay growing public concerns that the 

agency could arbitrarily and 

capriciously further conceal or 

subordinate significant public health, 

safety, and security issues to 

economically shield and benefit the 

nuclear industry.’’ Another commenter 

suggested that the language of 

§ 73.22(a)(5) was an ‘‘incredible 

expansion of government secrecy that 

could allow instances of extreme 

operational incompetence to go 

unnoticed by the public.’’ That 

commenter suggested deleting the 

‘‘other information’’ language to narrow 

and clarify the rule. 

Another commenter proposed making 

§ 73.22(a)(5) reflect the preamble of 

§ 73.22 by stating that orders will only 

be used to classify information in an 

emergency when rulemaking is not 

available. 

Response: Section 147 of the AEA 

explicitly authorizes the Commission to 

proceed by order or regulation to 

prohibit the unauthorized disclosure of 

SGI. Nothing in the AEA limits the use 

of the Commission’s ordering authority 

to emergency situations. Such a 

restriction could hinder security and 

safety in the event the Commission 

needs to act quickly to protect SGI not 

already identified in the regulations. 

The Commission declines to adopt such 

a limitation. However, the Commission 

has changed the revised proposed rule 

language to clarify that any information 

that would be categorized as SGI under 

§ 73.22(a)(5) would have to be within 

the scope of Section 147 of the AEA, 

and would be imposed by a new order 

or rulemaking. 

Section 73.22(b) Conditions for Access 

Comment: One commenter remarked 

that, in the context of § 73.22(b), there 

is no benefit from imposing different 

access authorization requirements for 

nuclear power reactors as compared to 

other licensees. 

Response: In the original proposed 

rule, access requirements varied 

depending on whether an individual is 

to be granted access by a nuclear power 

reactor licensee or applicant, as set forth 

in § 73.22(b)(1)(i)(A) or by other 

licensees or applicants covered by 

§ 73.22, pursuant to § 73.22(b)(1)(i)(B). 

Such variation was based on Section 

149 of the AEA, which required each 

licensee or applicant for a license to 

operate a nuclear power reactor to 

fingerprint each individual permitted 

access to SGI. The EPAct, however, 

amended Section 149 to authorize 

fingerprinting all individuals engaged in 

an activity subject to regulation by the 

Commission, licensees, all applicants 

for a license to engage in Commissionregulated activities, and all individuals 

who have notified the Commission in 

writing of an intent to file an 

application for licensing, certification, 

permitting, or approval of a product or 

activity subject to regulation by the 

Commission. Fingerprints would be 

submitted to the U.S. Department of 

Justice for a criminal history check, 

which would be assessed as part of the 

background check that provides the 

basis for a trustworthiness and 

reliability determination. 

Section 73.22(b)(1) 

Comment: Several comments stated 

that §§ 73.22(b)(1)(i)(B) and 

73.23(b)(1)(i) in the original proposed 

rule were unclear as to what is meant by 

‘‘comprehensive background check or 

other means as approved by the 

Commission.’’ One commenter noted 

that requiring a background 

investigation has proven to be 

challenging for transportation 

companies, because the time required 

for background investigations has often 

prevented transportation companies 

from bidding on some jobs. That 

commenter suggested that the NRC 

specify the ‘‘other means’’ that would be 

acceptable for entities implementing an 

SGI–M program. Another commenter 

expressed concern that if the 

‘‘comprehensive background check’’

was similar to the ‘‘Q’’ or ‘‘L’’ access 

authorization investigations or checks of 

10 CFR part 25, it would impose an 

intolerable burden because of the time 

and resources necessary for the 

completion of such a check, particularly 

for those entities developing new SGI or 

SGI–M programs. 

Response: As previously discussed, a 

definition of ‘‘background check’’ is 

now included § 73.2. NRC staff plans to 

issue further guidance that will include 

a discussion of acceptable background 

checks that would satisfy the rule 

requirements by ‘‘other means’’ and 

support a licensee’s trustworthiness and 

reliability determinations. The 

requirements for access to SGI are 

different from the provisions for access 

to classified information (part 25) or for 

access under part 95 to Classified 

National Security Information and/or, 

Restricted Data, and/or Formerly 

Restricted Data. 

Comment: A commenter expressed 

the concern that § 73.22(b)(1)(ii)–(vi) in 

the original proposed rule in 

combination with § 73.22(b)(2) appears 

to require licensees to perform a Federal 

Bureau of Investigation (FBI) criminal 

history check for NRC personnel. If this 

is not the case, the commenter proposed 

that (b)(2) of both sections should be 

modified to state: ‘‘The individuals 

described in paragraph (b)(1)(i) through 

(vi).’’

Response: The Commission does not 

interpret the cited provisions of the 

original proposed rule set forth by the 

commenter as requiring licensees to 

perform FBI criminal history checks for 

NRC personnel. Section 73.22(b)(3) 

would exempt governmental 

individuals from the requirement for a 


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determination of trustworthiness and 

reliability, including NRC employees. 

Comment: One commenter stated that 

§ 73.22(b)(1)(vii) would require a 

licensee to demonstrate trustworthiness 

and reliability for an individual to 

whom disclosure is ordered pursuant to 

10 CFR 2.709(f). The commenter noted 

that a licensee should not bear the 

responsibility for making this finding 

for an intervenor. The commenter also 

noted that the rule was not clear as to 

when a presiding officer would have the 

responsibility to make this 

determination—when an intervenor 

wants access to SGI or only if an 

intervenor appeals a party’s 

determination. For these reasons, the 

commenter suggested rethinking the 

application of these criteria to 

adjudicatory hearing matters and 

resolving such issues in a separate 

rulemaking or by issuing Commission 

orders in each case where controlling 

the dissemination and use of SGI might 

be an issue. 

Response: The rule is not intended to 

require licensees to determine whether 

intervenors in an adjudicatory 

proceeding are trustworthy and reliable 

to receive SGI or SGI–M. Presiding 

officers have the authority to make 

determinations about information 

disclosures if a dispute over access to 

SGI or SGI–M documents arises. Section 

73.22(b)(4) and 73.23(b)(4) have been 

added to the revised rule to make this 

clear. Sections 2.709(f) and 2.1010(b)(6) 

have been revised and new §§ 2.336(f) 

and 2.705(c)(2) have been added to the 

revised proposed rule to specify 

procedures to be followed in the event 

of such a dispute. 

Under the procedures set forth in 

these provisions, when a party or 

participant in an adjudicatory 

proceeding seeks production of SGI 

from another party or participant that 

refuses to produce it, the presiding 

officer has the authority to decide the 

dispute. The presiding officer will make 

the first determination necessary for 

access to SGI, which is whether the 

individual seeking access has the 

requisite ‘‘need to know’’, as defined in 

10 CFR 73.2. If so, the presiding officer 

may order production of the SGI after 

the second determination is made, 

namely whether the individual to be 

authorized access to SGI has been found 

to be trustworthy and reliable by the 

NRC Office of Administration, based on 

a background check (including a 

criminal history records check and 

fingerprinting). Procedurally, the 

presiding officer may issue an order that 

designates the information as necessary 

and relevant and that requires the party 

or participant seeking access to SGI or 

SGI–M to designate those individuals 

who would receive it. The order would 

also require the NRC Office of 

Administration to determine the 

trustworthiness and reliability of those 

individuals designated to receive SGI in 

accordance with the provisions of 

§§ 73.22(b) or 73.23(b), as appropriate. 

If the NRC Office of Administration 

concludes that the designated 

individuals are trustworthy and reliable 

to receive SGI, the presiding officer 

would issue a second order requiring 

production of the SGI or SGI–M under 

the provisions of a protective order. 

Presiding officers have the authority to 

hear appeals on the NRC Office of 

Administration’s trustworthiness and 

reliability determination. 

If parties or participants in an 

adjudicatory proceeding agree that an 

intervenor has a ‘‘need to know’’ and are 

willing to share the SGI or SGI–M 

without seeking a determination on 

‘‘need to know’’ from the presiding 

officer, then the parties or participants 

may do so, provided that a protective 

order has been issued by the presiding 

officer and a trustworthiness and 

reliability determination has been made 

by the NRC Office of Administration. If 

the SGI sought by the intervenor is held 

solely by the licensee or applicant, and 

not the NRC, the licensee or applicant 

may provide the SGI to the intervenor 

under the terms of the protective order. 

If the SGI is held by both the licensee 

or applicant and the NRC (‘‘dual 

holders’’), the NRC will provide the SGI 

to the intervenor, under the terms of the 

protective order. 

Section 73.22(c)(1) Protection While in 

Use or Storage 

Comment: Commenters proposed that 

§ 73.22(c)(1) be amended to authorize 

SGI to be stored in the Reactor Control 

Room not in a locked security storage 

container. The basis for this request is 

that control rooms are continuously 

manned and this change would allow 

rapid access, if necessary, to pertinent 

SGI material (e.g., controlled operating 

procedures). 

Response: In response to these 

comments, §§ 73.22(c)(1) and 73.23(c)(1) 

are being changed to delete the phrase 

‘‘Safeguards Information within alarm 

stations, manned guard posts or ready 

rooms need not be locked in a locked 

security storage container.’’ A new 

phrase is being added to state 

‘‘Safeguards Information within alarm 

stations, or rooms continuously 

occupied by individuals need not be 

stored in a locked security storage 

container.’’

Section 73.22(c)(2) 

Comment: One commenter proposed 

that § 73.22(c)(2) be modified to allow 

licensees to mark containers as 

containing SGI, because this practice 

ensures that the importance of those 

containers is clearly understood and 

because those containers are typically 

located in areas with no public access. 

Response: The Commission is 

declining to adopt the change proposed 

by the commenter because marking 

locked security storage containers to 

indicate they contain SGI may assist in 

identifying the location of SGI. The fact 

that such containers may typically be 

located in areas without public access is 

irrelevant because not all individuals in 

such areas are authorized for access to 

SGI. An unauthorized individual 

seeking access to SGI might be aided by 

such markings, regardless of whether 

the SGI is stored in areas without public 

access. 

Section 73.22(d)(1) 

Comment: One commenter proposed 

that the term ‘‘first page’’ in 

§ 73.22(d)(1) be changed to ‘‘first page or 

cover sheet’’ to allow licensees to 

continue with current practice which 

meets the intent of the revised proposed 

rule. 

Response: The Commission is not 

modifying § 73.22(d)(1) as the 

commenter suggests because the 

information specified in § 73.22(d)(1)(i) 

through (iii) should be noted on the first 

page of the document itself rather than 

in a separate document, such as a cover 

sheet. The Commission does not expect 

that licensees or applicants must go 

back and mark documents for which a 

cover sheet was used for the required 

information instead of the first page of 

the document, as set forth in 

§ 73.22(d)(1). 

Comment: One commenter suggested 

that the requirement in § 73.22(d)(1)(i), 

and a similar provision in 

§ 73.23(d)(1)(i), regarding ‘‘the 

individual authorized to make a * * * 

[SGI] determination, and who has 

determined that the document contains’’

SGI is not clear, for example, as to 

whether training is required or whether 

a SGI or SGI–M determination requires 

one or two individuals. 

Response: The commenter is correct 

that the rule does not prescribe specific 

qualifications for persons who will 

determine whether or not particular 

information is SGI or SGI–M. Licensees 

have an incentive to select and train 

competent persons to make these 

determinations, because a finding that a 

document contains SGI or SGI–M will 

add to the licensee’s document-handling 


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burdens. At the same time, the 

Commission recognizes that when there 

is any doubt about whether information 

is or is not SGI or SGI–M, there is an 

incentive to mark it as SGI. This ‘‘err on 

the safe side’’ tendency could lead to 

unnecessary burdens and over-use of 

the SGI or SGI–M designations. The 

Commission will consider making 

appropriate additions or changes to 

resolve this problem if it should arise. 

Such changes might include specifying 

qualifications for persons who make SGI 

or SGI–M determinations if experience 

shows this to be necessary. The number 

of individuals necessary to make these 

designations may vary from one licensee 

to another. The Commission expects 

that the individual(s) who are 

‘‘authorized to make a Safeguards 

Information determination’’ are the 

same as the individual(s) who 

‘‘determined that the document contains 

Safeguards Information.’’ In other 

words, the individual or individuals 

making the determination must be 

authorized to do so. 

Comment: A commenter suggested 

that the requirement to designate the 

individual making the SGI 

determination is ‘‘redundant and 

unnecessary’’ for pleadings. The 

commenter stated that the 

determination can be attributed to the 

individual signing the pleading. 

Response: The Commission disagrees 

with this comment, as oftentimes the 

person making an SGI determination 

will not be the signatory of a pleading. 

Section 73.22(d)(1) ensures that the 

identity of the person making the SGI 

determination—be it the individual 

signing the pleading or some other 

individual—is clear. If the signatory also 

makes the SGI determination, the 

document should be marked in 

accordance with § 73.22(d)(1). The 

Commission does not view this as 

redundant or unnecessary and declines 

to adopt the commenter’s suggestion. 

Section 73.22(d)(3) 

Comment: A commenter questioned 

whether pleadings filed in an 

adjudicatory proceeding would be 

considered correspondence to the NRC 

requiring portion marking pursuant to 

§ 73.22(d)(3). The commenter stated that 

SGI in a pleading is ‘‘usually integral to 

the entire pleading such that removal of 

such information would render the 

remainder [of the pleading] of marginal 

or no use, if released.’’ The commenter 

indicated that substantial effort would 

be required to portion-mark pleadings 

containing SGI. Additionally, the 

commenter concluded that intervenors 

have a general reluctance to designate a 

particular piece of information as nonSGI because they ‘‘will be secondguessed by the licensee or NRC staff.’’

For these reasons, the commenter stated 

that there appeared to be little utility 

added by this requirement. 

Response: Pleadings filed in an 

adjudicatory proceeding before the NRC 

are considered correspondence and 

therefore would require portion marking 

in accordance with § 73.22(d)(3). 

Attachments and exhibits to pleadings, 

however, are not considered to be 

correspondence and, therefore, do not 

require portion marking. For example, a 

pleading may attach portions of a 

security plan as an exhibit. The attached 

plan would not be required to be 

portion marked, but instead can be 

treated in its entirety as SGI. The NRC 

uses portion marking to ensure that the 

pleading is made public without the 

portion-marked SGI. Although the 

Commission acknowledges that 

additional effort will be required by 

participants in adjudicatory proceedings 

to portion mark pleadings, the 

Commission does not believe that the 

burden is undue, especially when 

compared with the potentially adverse 

consequences of a malevolent adversary 

obtaining SGI. Finally, the Commission 

disagrees with the commenter’s 

conclusions about intervenors’

reluctance to designate information as 

non-SGI. The Commission declines to 

change § 73.22(d) in response to these 

comments. 

Comment: Several comments were 

received to the effect that the portion 

marking requirements of §§ 73.22(d)(3) 

and 73.23(d)(3) for ‘‘Engineering and 

safety analyses, emergency planning 

procedures or scenarios’’ would be 

burdensome and that the portion 

marking of documents sent to the NRC 

would impose an unnecessary burden 

on licensees and should therefore not be 

required. One commenter noted that the 

portion marking requirements would be 

unnecessary because licensees control 

entire documents as SGI and that the 

administrative benefit to the NRC would 

not be worth the substantial burden on 

licensees. 

Response: This comment refers to 

burden on licensees to portion mark 

‘‘Engineering and safety analyses 

emergency planning procedures or 

scenarios’’ when such information is 

included in correspondence to or from 

the NRC. For the reason previously 

stated, the designation of ‘‘Engineering 

and safety analyses emergency planning 

procedures or scenarios’’ as SGI has 

been changed throughout the rule text to 

‘‘security-related procedures or 

scenarios.’’ Because many commenters 

otherwise requested clarification of this 

category of information, these sections 

also have been revised to clarify that the 

analyses, procedures, scenarios, and 

other information described in this 

section would be considered SGI only if 

they reveal ‘‘site-specific details’’ about 

the physical protection of the facility or 

source, byproduct, or SNM. Licensees 

and applicants would only be required 

to portion mark analyses, procedures, or 

scenarios that contain SGI when 

included in transmittal documents for 

correspondence with the NRC. 

Comment: Another commenter 

proposed modifying § 73.22(d)(3) to 

provide flexibility on portion marking of 

correspondence to and from the NRC as 

follows: ‘‘Portion marking of documents 

or other information is allowed for 

correspondence to and from the NRC,’’

which would replace ‘‘required’’ with 

‘‘allowed.’’ The commenter suggested 

that this would allow licensees to 

designate entire documents as SGI 

without having to mark each paragraph 

if appropriate. 

Another commenter suggested that a 

document containing SGI should be 

marked as SGI in its entirety, and that 

when it is appropriate to produce 

documents that contain both SGI and 

non-SGI, attempts should then be made 

to segregate the SGI into separate 

sections. The commenter noted that in 

such cases, it would be reasonable to 

require portion marking but not in all 

cases. Therefore, the commenter 

proposed, the rule must reflect that 

portion marking is only to be required 

for documents transmitted to or from 

the NRC in which significant portions of 

the document are clearly non-SGI. 

Response: In response to comments, 

§ 73.22(d)(3) is being modified to 

replace the phrase ‘‘Portion marking of 

documents or other information is 

required for correspondence to and from 

the NRC’’ with the phrase ‘‘Portion 

marking is required only for 

correspondence to and from the NRC 

(i.e., cover letters, but not attachments) 

that contains Safeguards Information.’’

The NRC declines, however, to amend 

the revised proposed rule so that 

portion marking of correspondence to 

and from the NRC would be optional. 

Portion marking of such correspondence 

allows the NRC to release non-SGI to the 

public. 

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

Comment: Four commenters 

suggested that §§ 73.22(d)(4) and 

73.23(d)(3) should not require the 

marking of documents and other matter 

containing SGI in the hands of 

contractors and agents of licensees that 

were produced within one year prior to 

the effective date of this rule. One 

commenter suggested that to the extent 


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that these new requirements are 

different from the existing ones, the 

differences are minor and that, 

therefore, the regulation should not 

require the conduct of an extensive 

review of documents produced within 

the last year prior to the promulgation 

of a final rule. Another commenter 

similarly proposed that marking 

requirements should only be applied to 

documents generated after the effective 

date of a final rule and should not be 

applied retroactively to previously 

generated documents. One commenter 

suggested that § 73.22(d)(4) implies that 

if the document is taken out of storage, 

even if more than a year old, it must be 

marked. 

Response: The requirement that 

documents and other matter containing 

SGI in the hands of contractors and 

agents of licensees be marked if they 

were produced within one year prior to 

the effective date of the rule has been 

removed from the rule in response to 

comments. Therefore, the marking 

requirements set forth in this rule would 

apply only to documents generated after 

the effective date of a final rule. 

Section 73.22(d)(5) 

Comment: Two commenters proposed 

that § 73.22(d)(5) should be eliminated, 

as it is redundant to, but inconsistent 

with, § 73.22(d)(1), which requires 

material to be marked ‘‘Safeguards 

Information’’ at the top and bottom of 

each page. One commenter noted that 

the ‘‘Safeguards Information’’

designation required in § 73.22(d)(5) 

may not alert someone who is not 

familiar with that initialism to the fact 

that it is SGI and, therefore, that 

inconsistency between §§ 73.22(d)(5) 

and 73.22(d)(1) should be eliminated. 

Response: The revised proposed rule 

has been changed to eliminate the 

redundancies and inconsistencies 

identified by the commenter. Section 

73.22(d)(5) in the original proposed rule 

has been renumbered as § 73.22(d)(4) in 

the revised proposed rule. 

Section 73.22(e) Reproduction of 

Matter Containing Safeguards 

Information 

Comment: One commenter suggested 

that the new requirement prohibiting 

digital copiers connected to a network, 

found at §§ 73.22(e) for SGI and 73.23(e) 

for SGI–M, is difficult in today’s 

electronic office environment. Another 

commenter proposed that § 73.22(e) 

should not prohibit the use of a copier, 

printer, or scanner connected to the 

closed network in the ‘‘stand alone’’

computer system allowed in § 73.22(g). 

Response: The revised proposed rule 

has been modified to be less 

prescriptive and more performancebased. Under the revised proposed rule, 

any equipment may be used to 

reproduce SGI, provided unauthorized 

individuals cannot gain access to SGI by 

accessing, using, or manipulating the 

equipment (for example, by gaining 

access to retained memory or using 

network connectivity to access SGI). 

Sections 73.22(f) and 73.23(f) External 

Transmission of Documents and 

Material 

Comment: One comment noted that 

the double packaging requirement for 

external transmittal of SGI, found in 

§§ 73.22(f) and 73.23(f), although not 

onerous, is akin to the protection 

afforded to classified matter. Another 

commenter proposed that § 73.22(f)(2) 

be rewritten to state that SGI may be 

transported by any commercial delivery 

or courier company that provides 

service with tracking features, rather 

than any commercial delivery company 

that provides ‘‘nationwide overnight 

service with computer tracking 

features’’ as the original proposed rule 

reads. The commenter suggests that this 

would allow licensees to continue to 

use current trusted local delivery 

services. 

Response: The double packaging 

requirements of the original proposed 

rule are necessary to prevent 

unauthorized individuals from readily 

identifying that the package contains 

SGI while in transit, and to prevent 

recipients from inadvertently disclosing 

SGI to unauthorized individuals upon 

receipt. The double packaging 

requirements have not been changed in 

the revised proposed rule. 

However, the Commission agrees that 

local delivery services, so long as the 

carriers have computer tracking 

capabilities, may be permitted to 

transport SGI. Computer tracking 

capabilities are necessary to aid in 

quickly determining the location of the 

information so that the risk of 

unauthorized disclosure may be 

minimized. Sections 73.22(f)(2) and 

73.23(f)(2) have been changed to reflect 

that nationwide, overnight service 

would not be a requirement for a 

commercial delivery company to 

transport SGI. 

Section 73.22(g) Processing of 

Safeguards Information on Electronic 

Systems 

Comment: One commenter proposed 

that § 73.22(g) contain a provision 

permitting transfer of encrypted SGI 

over a computer network, similar to the 

proposed § 73.23(g)(2). In addition, a 

comment received noted that the DOE 

has an SGI protection plan that was 

approved by the NRC to satisfy current 

§ 73.21(h) and has a need to retain 

capabilities for handling SGI as 

approved, due to a distanced-managed 

site. This commenter therefore proposes 

adding a provision to § 73.22(g) to allow 

the use of other protective measures 

approved by the NRC pursuant to old 

§ 73.21(h) or new § 73.22(g). 

Response: Section 73.22(f)(3) permits 

electronic transmission of SGI by 

protected telecommunications circuits 

(including facsimile) or encryption 

(Federal Information Processing 

Standard [FIPS] 140–2 or later). 

Section 73.21(b)(1) of the revised 

proposed rule would explicitly preserve 

the Commission’s authority to require 

different SGI protection requirements in 

individual cases. If alternative 

protection methods can be devised that 

provide an equivalent level of 

protection for SGI, the Commission 

would consider approving those 

methods on a case-by-case basis. 

Section 73.22(i) Destruction of Matter 

Containing Safeguards Information 

Comment: Two commenters 

expressed concern over § 73.22(i), 

which contains requirements for the 

destruction of matter containing SGI. 

One commenter suggests that § 73.22(i) 

seemingly permits the use of ‘‘strip 

shredders’’ for destruction if pieces are 

one-half inch or less and mixed. The 

commenter states that this is 

inconsistent with advice given by NRC 

staff members who believe that a crosscut shredder must be utilized and 

proposes that the rule clarify whether 

the use of ‘‘strip shredders’’ is 

permissible. Another commenter 

suggested that the wording of § 73.22(i) 

be modified to specify pieces one-half 

inch or smaller on a side to provide 

important clarification of how small the 

pieces would have to be to constitute 

destruction. 

Response: The revised proposed rule 

has been changed in response to this 

comment. The rule would allow the use 

of strip shredders and other shredders 

that shred pieces no wider than a 

quarter of an inch if the pieces are 

thoroughly mixed. 

§ 73.23 Protection of Safeguards 

Information—Modified Handling: 

Specific Requirements 

Comment: A commenter suggested 

that establishment and implementation 

of the SGI–M program by licensees with 

an existing SGI program is unnecessary. 

Response: Persons who establish, 

implement, and maintain handling, 

access, and control procedures for SGI 

described in § 73.22 would have a 

program sufficient to protect SGI–M 


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described in § 73.23 and would not need 

to establish a second or separate SGI–M 

program. However, special attention 

would be required when transmitting 

SGI to ensure proper document marking 

and handling. 

A primary difference between the SGI 

protection requirements in §§ 73.22 and 

73.23 is in the marking of the 

information. SGI in the former category 

is marked ‘‘Safeguards Information’’

while the latter category is marked 

‘‘Safeguards Information—Modified 

Handling.’’ The different markings are 

associated with different storage 

requirements. SGI described in § 73.22 

must be stored in a locked security 

storage container, but SGI described in 

§ 73.23 and marked as SGI–M has a less 

stringent storage requirement—the 

information must be stored in a locked 

file drawer or cabinet. 

A person who possesses both types of 

SGI—i.e., that described in §§ 73.22 and 

73.23—and who always stores SGI in a 

locked security storage container under 

§ 73.22(c)(2) would be in compliance 

with the regulations because that person 

would achieve the maximum level of 

protection required by the regulations. 

But not everyone will possess both 

types of SGI—some will only possess 

SGI falling under § 73.23, in which case 

a locked security storage container 

would not be required. Thus, when a 

person with a § 73.22 program sends 

SGI to a person with only a § 73.23 

program, proper document marking 

would be essential. 

Proper marking is necessary when SGI 

is communicated so that the recipient 

does not receive a document with 

markings that would require storage in 

a container that the recipient does not 

possess. Without the appropriate 

document markings, the sender could 

cause a violation of the regulations. 

This commenter implies that the SGI–

M designation means the information 

will be held ‘‘secret,’’ which is not the 

case. Individuals with a ‘‘need to know’’

the information who are determined to 

be trustworthy and reliable may be 

granted access to SGI. Access to ‘‘secret’’

National Security Information is beyond 

the scope of this rulemaking and is 

governed by separate requirements. 

Comment: One commenter stated that 

if the NRC believes that information 

associated with less than 15 grams of 

SNF or HLW should be protected as 

SGI, it should be designated as ‘‘SGI–

M.’’ The commenter also proposed that 

information associated with the 

transportation of 15 grams of SNF or 

HLW should be protected as SGI 

pursuant to §§ 73.21 and 73.22. 

Response: The Commission did not 

propose to protect the information 

identified by the commenter as SGI or 

SGI–M. If in the future the Commission 

establishes physical security 

requirements for the transportation of 

the materials referred to by the 

commenter, the Commission will 

determine whether to also require 

protection of security-related 

information as SGI or SGI–M in 

accordance with §§ 73.21(b)(1) and (2). 

Comment: A commenter 

recommended against the creation of the 

SGI–M category because the category is 

overly broad, the need for restrictions 

on such material has not been clearly 

established, and the risks associated 

with the release of such information do 

not justify secrecy. This commenter 

expressed concerns that holding lessdangerous SGI–M information as secret 

will decrease accountability and 

eliminate the public’s ability to be 

aware of and participate in safety 

matters that concern their communities. 

Response: The Commission disagrees 

that protection of the SGI described in 

§ 73.23 is unnecessary. The information 

that would be protected under § 73.23 

describes security measures and 

physical protection information related 

to radioactive materials that could be 

used in a radiological dispersion device. 

Securing those materials is vital to the 

public health and safety and the 

common defense and security. 

Protecting detailed information about 

how those materials are secured is 

equally vital. 

This rulemaking is not intended to 

decrease the Commission’s 

accountability or unduly burden the 

public’s ability to participate in NRC 

proceedings. Members of the public are 

always free to submit their views on 

safety and security matters by filing a 

petition for rulemaking under 10 CFR 

2.802, by filing a request to institute 

proceedings to modify, suspend, or 

revoke a license under 10 CFR 2.206, 

and by attending public meetings or 

writing letters to the NRC. In addition, 

members of the public may comment on 

rulemakings and environmental impact 

statements, and where appropriate, file 

a petition to intervene and/or request a 

hearing in an adjudicatory matter. 

Comment: A commenter questioned 

the appropriateness of a statement in the 

original proposed rule implying that the 

risk of theft of materials covered by 

§ 73.23, particularly special nuclear 

material, could be low. 

Response: Special nuclear material 

would be addressed by §§ 73.22 and 

73.23 and would require different levels 

of protection based on its form and 

quantity. The Commission believes that 

a graded approach based on risk and 

associated consequences is appropriate. 

As a result, a higher risk of disclosure 

or higher consequence due to a 

malevolent act requires commensurate 

levels of protection. The same is true 

whether the assets are source, 

byproduct, or special nuclear materials. 

Comment: One commenter suggested 

that the NRC, in its final rule, provide 

greater detail on the criteria for deciding 

access to SGI–M material. In addition, 

the commenter suggested that, because 

of the lower risk status of SGI–M 

material, the NRC should allow greater 

access to SGI–M by establishing less 

rigorous restrictions and easier 

procedures for public access. 

Response: The Commission agrees 

that SGI–M material presents lesser 

risks if publicly disclosed than SGI 

material, but the risks are still 

significant. Because of those risks, broad 

public access is not permitted. Only 

trustworthy and reliable individuals 

who have a ‘‘need to know’’ the 

information may be authorized access to 

SGI–M. 

The revised proposed rule defines 

‘‘background check’’ and 

‘‘trustworthiness and reliability’’ to 

clarify the Commission’s general 

expectations for granting access to SGI 

or SGI–M. Specifying discrete qualifying 

or disqualifying factors is not possible 

because trustworthiness and reliability 

determinations and need-to-know 

determinations must be made on a caseby-case basis after considering all 

relevant information. 

To implement the amendments to 

section 149 of the AEA contained in the 

Energy Policy Act of 2005, the revised 

proposed rule would require 

fingerprinting and Federal Bureau of 

Investigation criminal history checks, 

which would constitute part of the 

background check used to determine 

trustworthiness and reliability, before 

access to SGI. 

Comment: One commenter proposed 

that the NRC modify the preamble to 

define the exact materials and quantities 

to which the SGI–M requirements of 

§ 73.23 would apply. 

Response: The introductory text to 

§ 73.23 has been revised to define 

exactly the facilities, materials, and 

quantities for which the SGI–M 

requirements of § 73.23 apply. The 

section would apply to panoramic and 

underwater irradiators, defined in 10 

CFR 36.2, that possess greater than 370 

TBq (10,000 Ci) of byproduct material in 

the form of sealed sources; 

manufacturers and distributors of items 

containing source, byproduct, or special 

nuclear material in greater than or equal 

to Category 2 quantities of concern; 

research and test reactors that possess 

less than a formula quantity of strategic 


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special nuclear material; and 

transportation of greater than or equal to 

Category 1 quantities of concern. 

Comment: One commenter stated that 

§ 73.23 would conflict with existing 

requirements in 49 CFR part 15 with 

respect to the protection of information 

associated with transporting radioactive 

materials. The commenter suggests that 

if the rule is adopted as proposed, 

licensees may be contending with two 

sets of regulations. 

Response: The NRC’s regulations are 

not in conflict with DOT regulations. 

DOT regulations in 49 CFR 172.804 

provide that DOT-required security 

plans ‘‘that conform to regulations, 

standards, protocols, or guidelines 

issued by other Federal agencies * * * 

may be used to satisfy the requirements 

in this subpart, provided such security 

plans address requirements specified in 

this subpart’’. Thus, security plans 

required by the NRC can be developed 

so that they also comply with DOT 

requirements. 

DOT information protection 

requirements for transportation security 

plans are less stringent than the SGI and 

SGI–M requirements established by this 

rule. As a general matter, the 

Commission does not intend that 

transportation security plans required 

by the DOT be protected under this rule. 

However, licensees subject to this rule 

who would be required by NRC 

regulations or orders to implement 

transportation security measures would 

be required to protect those measures 

and plans as SGI or SGI–M, as 

appropriate. Licensees that incorporate 

NRC-required security measures and 

procedures into existing DOT-required 

transportation security plans would be 

required to protect portions of the 

transportation security plan under this 

revised proposed rule. To avoid that 

result, licensees may wish to keep 

descriptions of their NRC-required 

security measures and procedures 

separate from DOT-required security 

plans. 

Section 73.23(a) Information To Be 

Protected 

Section 73.23(a)(1) Physical Protection 

Comment: One commenter objected to 

§ 73.23(a)(1)(i) as too broad in its use of 

the term ‘‘all portions’’ with respect to 

the NRC’s authority to restrict physical 

security plans that are labeled as SGI–

M. The commenter suggested that 

§ 73.23(a)(1)(i) creates an ‘‘unnecessary 

level of secrecy’’ and contends that 

establishing ‘‘such intense secrecy for a 

brand new and less dangerous category 

of information seems completely 

unwarranted.’’ The commenter 

recommended instead that if portions of 

the physical security plans can be 

released to the public, the agency 

should be permitted to disclose those 

portions. 

Response: The Commission agrees 

that some portions of a licensee’s 

physical security plan or procedures 

may be non-SGI and has deleted the 

phrase ‘‘all portions of’’ from revised 

proposed rule. The Commission 

disagrees that protection of the SGI 

described in § 73.23 is unnecessary. The 

information protected under § 73.23 

describes security measures and 

physical protection programs for 

radioactive materials that could be used 

in a radiological dispersion device. 

Securing those materials is vital to the 

public health and safety and the 

common defense and security. 

Protecting detailed information about 

how those materials are secured is 

equally vital. 

Comment: One commenter proposed 

that the NRC clarify the identification of 

emergency power sources in 

§ 73.23(a)(1)(iii) to apply only to alarm 

system power sources. 

Response: The revised proposed rule 

would protect information in alarm 

system layouts and is intended to 

protect information that identifies 

emergency power sources for alarm 

systems. The revised proposed rule text 

has been changed to clarify this point. 

Comment: One commenter suggested 

that the NRC revise § 73.23(a)(1)(vii) to 

agree with the wording in 

§ 73.22(a)(1)(ix). 

Response: The Commission agrees 

with the comment and the revised 

proposed rule has been revised to add 

the word ‘‘composite’’ to 

§ 73.23(a)(1)(vii). 

Comment: One commenter proposed 

the deletion of § 73.23(a)(1)(viii) as it is 

redundant with other § 73.23(a)(1) 

subsections. 

Response: The commenter did not 

identify a specific redundancy or point 

out how the proposed language would 

cause confusion or other harm. 

Retaining the provision affords 

protection for SGI that might not fit 

squarely under other categories. 

Consequently, the Commission has not 

changed the provision in the revised 

proposed rule. 

Comment: Two commenters proposed 

replacing the phrase ‘‘safeguards or 

security emergencies’’ in 

§ 73.23(a)(1)(ix) with ‘‘security 

contingency events,’’ which is used 

more frequently. Another commenter 

suggested that the words ‘‘Information 

concerning’’ in § 73.23(a)(1)(ix) were 

unclear and suggested that the NRC 

specify what information concerning 

response forces qualifies as SGI–M. 

Response: The Commission has 

changed the revised rule to make 

consistent use of the phrase ‘‘security 

contingency events.’’ The phrase 

‘‘information concerning’’ in 

§ 73.23(a)(1)(ix) has been changed to 

‘‘information relating to.’’ The original 

proposed rule adequately describes the 

types of information that would be 

protected by § 73.23(a)(1)(ix) by giving a 

number of examples of the information 

the Commission seeks to protect, 

including response force size, armament 

of the response forces, and arrival times. 

Similar information about the 

operational and tactical capabilities of 

response forces would be protected by 

§ 73.23(a)(1)(ix). The revised proposed 

rule has not been revised to provide 

further examples. 

Comment: Three commenters 

provided comments on § 73.23(a)(1)(x). 

Two commenters recommended 

revising the wording at the end of the 

paragraph to read: ‘‘by significantly 

increasing the likelihood of radiological 

sabotage or theft or diversion of source, 

byproduct, or special nuclear material,’’

in order to correspond to the phrase 

used in the definition of ‘‘SGI’’ in the 

proposed § 73.2. One commenter 

suggested that withholding such 

information from disclosure as SGI–M 

would prevent public knowledge of 

safety and emergency information that 

would directly impact nearby 

communities in the event of an 

accident, and doing so under the SGI–

M provisions would ‘‘allow the agency 

to apply vague and broad secrecy 

authority to an already broad and 

undefined category since NRC does not 

detail precisely which facilities and 

materials SGI–M covers.’’ Therefore, 

this commenter recommends that the 

NRC eliminate this provision and not 

allow emergency planning and safety 

reports to be protected from public 

disclosure under the new SGI–M 

category. 

Response: The revised proposed rule 

text has been changed in response to the 

first comment. The wording at the end 

of § 73.23(a)(1)(x) now corresponds with 

the definition of SGI in § 73.2. 

The Commission disagrees that 

§ 73.23(a)(1)(x) is overly broad, or that it 

would prevent public knowledge of 

vital safety and emergency information. 

The protection that would be required 

for engineering and safety analyses and 

emergency planning information under 

§ 73.23(a)(1)(x) is appropriately limited 

to information that could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 


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security by significantly increasing the 

likelihood of theft, diversion, or 

sabotage of source, byproduct, or special 

nuclear material. 

The Commission recognizes that the 

public needs information about safety 

and emergency planning and will 

continue to make much of that 

information publicly available. But a 

limited amount of safety and emergency 

planning related information, if publicly 

disclosed, could be used to identify 

security measures for the protection of 

nuclear facilities and materials, thereby 

significantly increasing the likelihood of 

radiological sabotage or theft and 

diversion. For example, emergency 

planning information that specifies 

response times for local law 

enforcement, or identifies the size, 

tactics, and capabilities of first 

responders to a radiological event could 

be useful to a potential adversary in 

planning an attack. 

Section 73.23(a)(2) Physical Protection 

in Transit 

Comment: One commenter suggests 

that, in the final rule, § 73.23(a)(2)(i) use 

the term ‘‘transportation security plan’’

for consistency, rather than 

‘‘transportation physical security plan’’

as the original proposed rule reads. 

Another commenter suggests that 

§ 73.23(a)(2)(i) is too broad in that it 

does not specify what information falls 

into this category. This commenter 

recommends that at least some portion 

of transportation security plans should 

be available to communities to foster 

awareness about the safety measures 

applied to nuclear materials shipments 

passing through their towns. In 

addition, the commenter proposes that 

§ 73.23(a)(2)(i) be reworded to clarify 

that the public will retain access to all 

information to which it is entitled by 

the AEA. 

Response: The phrase ‘‘transportation 

physical security plan’’ does not appear 

in the revised proposed rule. The 

revised proposed rule would require 

protection of ‘‘the composite physical 

security plan for transportation’’ in 

§ 73.22(a)(2)(i) and ‘‘information 

regarding transportation security 

measures, including physical security 

plans and procedures’’ in 

§ 73.23(a)(2)(i). The revision was made 

in part because not all licensees subject 

to the rule are explicitly required to 

have a ‘‘transportation physical security 

plan.’’

The revised proposed rule is intended 

to protect information detailing the 

physical security measures and 

procedures used to protect source, 

byproduct, and special nuclear material 

in transit, whether or not those 

measures and procedures are contained 

in a document labeled ‘‘transportation 

security plan.’’ Therefore no definition 

of ‘‘transportation security plan’’ or its 

revised formulations is needed. 

The NRC frequently shares general 

transportation security information with 

communities and other stakeholders. 

Licensees may be able to share general 

information about their security 

procedures as well, however, the 

Commission strongly cautions against 

this practice to avoid an inadvertent 

disclosure of SGI. 

The Commission disagrees that 

§ 73.23(a)(2)(i) needs to be reworded to 

make clear that the public will retain 

access to all information to which it is 

legally entitled. The comment states a 

truism that need not be incorporated 

into NRC regulations. 

Comment: One commenter suggested 

that §§ 73.23(a)(2)(ii) and (iii) are not 

clear in what is considered SGI, for 

example, if the regulation pertains to a 

specific shipment or only to the general 

arrangements for all shipments that may 

be affected. The commenter stated that, 

if specific to the shipment, it is 

burdensome in that it requires face-toface meetings when such arrangements 

are normally made over the telephone. 

In addition, the commenter stated that 

the phrase ‘‘limitations of 

communication during transport’’ in 

§ 73.23(a)(2)(iii) was not sufficiently 

clear. 

Response: These sections apply to 

information related to the protection of 

shipments of certain quantities of source 

material, byproduct material, and SNM 

in greater than or equal to Category 1 

quantities of concern. The information 

described in § 73.23(a)(2)(ii) concerns 

arrangements with and capabilities of 

local police response forces, and 

locations of safe havens, whether related 

to a specific shipment or arrangements 

for shipments that may be affected. The 

handling requirements for SGI–M do not 

mandate ‘‘face-to-face’’ meetings. With 

respect to telephone conversations, 

§ 73.23(f)(3) provides that SGI–M must 

be transmitted electronically only by 

protected telecommunications circuits 

or encryption approved by the NRC 

except under emergency or 

extraordinary conditions. To the extent 

that the commenter is referring to 

arrangements regarding scheduling and 

itinerary information, the revised 

proposed rule text specifies that such 

information is not considered SGI–M. 

See 10 CFR 73.23(a)(2)(i). The phrase 

‘‘limitations of communication during 

transport’’ in § 73.23(a)(2)(iii) of the 

original proposed rule (now 

§ 73.23(a)(2)(iv)) has been deleted and 

replaced by the phrase ‘‘Details of alarm 

and communication systems, 

communication procedures, and duress 

codes.’’

Comment: One commenter expressed 

concerns that § 73.23(a)(2)(v) would 

exempt safety analyses, emergency 

planning procedures, or other 

information about the protection of 

transported materials from public 

disclosure as SGI–M. The commenter 

recommended revising § 73.23(a)(2)(v) 

in order to ensure that the public has 

access to emergency procedures and 

safety analyses information needed to 

protect communities. 

Response: In response to this and 

other comments, the phrase ‘‘emergency 

planning procedures or scenarios’’ has 

been changed to ‘‘security-related 

procedures or scenarios’’. The 

Commission recognizes that the public 

needs information about safety and 

emergency planning and will continue 

to make much of that information 

publicly available. But a limited amount 

of safety and emergency planningrelated information, if publicly 

disclosed, could be used to identify 

security measures for the protection of 

nuclear facilities and materials, thereby 

significantly increasing the likelihood of 

sabotage or theft and diversion. For 

example, emergency planning 

information that specifies response 

times for local law enforcement, or 

identifies the size, tactics, and 

capabilities of first responders to a 

radiological event could be useful to a 

potential adversary in planning an 

attack. 

The Commission disagrees that this 

revised proposed rule would prevent 

public knowledge of vital safety and 

emergency information. The protection 

required for the information designated 

under § 73.23(a)(1)(x) would be 

appropriately limited to information 

that could reasonably be expected to 

have a significant adverse effect on the 

health and safety of the public or the 

common defense and security by 

significantly increasing the likelihood of 

theft, diversion, or sabotage of source, 

byproduct, or SNM. 

Section 73.23(a)(3) Inspections, 

Audits, and Evaluations 

Comment: One commenter expressed 

concerns over the proposed § 73.23(a)(3) 

and recommended that the NRC add 

current regulations that allow the public 

to access SGI–M information about 

defects and weaknesses at nuclear 

facilities after they have been corrected. 

The commenter suggested that the 

existing provision is useful and logical 

in maintaining accountability and 

public confidence, particularly given 

the lower risk associated with material 


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in the new SGI–M category. The 

commenter noted that the NRC proposes 

to eliminate this provision with respect 

to SGI information and recommends 

that the NRC add the provision to the 

SGI–M regulations. 

Response: The Commission agrees 

with this comment and has revised the 

proposed rule in part, accordingly. 

However, as stated in the revised text, 

the disclosure of such information is not 

automatic, and is subject to an 

assessment taking into account such 

factors as the results of trend analyses 

and the impacts of disclosures on other 

licensees having similar physical 

security systems. The partial revision of 

the proposed rule text is consistent with 

the policy to increase the amount of 

public information released pursuant to 

the Security Oversight Process. 

Section 73.23(h) Decontrolling 

Information 

Comment: One commenter stated that 

the decision to decontrol information 

would be a difficult assessment if 

consideration has to be given to using it 

in combination with non-SGI, and that 

detailed guidance and/or training would 

need to be given. The rule says that the 

approval to decontrol information can 

be made by three options: (1) Only by 

the NRC; or (2) the licensee with NRC 

approval; or (3) in consultation with the 

individual that made the original 

determination, if possible. The 

commenter stated that having these 

three options does not make sense, as 

there should be one ultimate authority 

that states whether it is permissible to 

decontrol the information so that there 

is no ambiguity and all licensees use the 

same method. 

Response: The Commission agrees 

that the decision to remove information 

from the SGI category can be difficult. 

Consideration must be given not only to 

the nature of the information itself, but 

to whether public disclosure of that 

information would identify other SGI. If 

so, the information should not be 

decontrolled. 

Persons in possession of SGI who are 

considering decontrolling the 

information should consult with the 

NRC, although the revised proposed 

rule would not require it in every case. 

Information could be decontrolled 

without NRC approval after consulting 

with the individual or organization that 

originally made the SGI determination, 

provided the information no longer 

meets the criteria of this rule. Retaining 

this option gives licensees and others a 

measure of flexibility in their SGIprotection procedures. 

SGI generated by the NRC would only 

be decontrolled with NRC approval. 

This would ensure that NRC orders, 

guidance, and other regulatory 

documents would not be inconsistently 

decontrolled. 

Part 76: Certification of Gaseous 

Diffusion Plants 

Comment: One commenter suggested 

that § 76.113(c) should be revised to 

provide that information on the security 

of CAT I SSNM should be protected 

under 10 CFR parts 25 and 95 as 

classified information. 

Response: The rule language in 

§§ 73.21 and 73.22 clearly indicates that 

it would only apply to information that 

is not classified as Restricted Data or 

National Security Information. If the 

specific information is considered to be 

Restricted Data or National Security 

Information it would be protected as 

such and the SGI provisions would not 

apply. However, the Commission 

recognizes that the current language in 

§ 76.113(c), which suggests that security 

information related to formula 

quantities of strategic special nuclear 

material would be protected as SGI, may 

be perceived as inconsistent with the 

NRC’s general practice of treating that 

information as classified Restricted Data 

or National Security Information. The 

revised proposed rule text has been 

changed to provide clarity. 

Comment: One commenter 

recommended that changes to 

§§ 76.115(d) and 76.117(c) should be 

deleted from the revised proposed rule 

because documents transmitted to 

gaseous diffusion plants (GDP) by the 

NRC are protected as classified material 

and because the classified matter 

protection program at each GDP already 

meets or exceeds the protection 

requirements for SGI, both current and 

proposed. Therefore, the commenter 

believes that the current programs at the 

GDPs provide for adequate protection of 

sensitive information, that application 

of the proposed SGI requirements to the 

GDPs will cause the expenditure of 

resources with little additional 

protection of sensitive information, and 

that, therefore, the proposed revision to 

§§ 76.115(d) and 76.117(c) is not 

necessary. Two commenters suggest that 

§§ 76.115 and 76.117 should refer to 

§§ 73.21 and 73.23, not § 73.22. 

Response: The NRC Staff believes that 

the proper category for security-related 

information at the GDPs is SGI. While 

the GDPs are protecting their security 

plans and other related documents as 

classified material, other persons that 

might obtain the information would 

have no obligation to protect the 

security-related information as SGI or as 

classified material. The NRC does not 

believe that protection of the securityrelated information as proprietary under 

§ 2.390 provides adequate protection, 

particularly if a third party were to 

somehow obtain the information. The 

GDPs may continue to protect the 

security-related information covered by 

the rule as classified material, however, 

the information should be properly 

marked as SGI. This is consistent with 

the treatment of similar information for 

part 70 licensees. No changes to the 

revised proposed rule text are necessary. 

Comment: One commenter proposed 

that § 76.113 be revised to specify 

whether NRC certificate holders should 

protect DOE’s Unclassified Controlled 

Nuclear Information (UCNI) information 

to a level equivalent to SGI or SGI–M. 

The commenter supports protection of 

UCNI to an SGI-equivalent level. 

Response: Section 76.133 has been 

changed in the revised proposed rule to 

make it clear that the information would 

be protected in accordance with DOE 

requirements. 

Part 150 Exemptions and Continued 

Regulatory Authority in Agreement 

States and in Offshore Waters Under 

Section 274 

Comment: One commenter suggested 

that a provision be added to § 150.15 to 

indicate that persons in Agreement 

States remain under the jurisdiction of 

the NRC’s regulations for control of SGI, 

as the current rule by its terms only 

provides that persons in Agreement 

States remain under the jurisdiction of 

NRC regulations for control of SGI–M, 

not SGI. The commenter recommends 

that the NRC should retain full authority 

over all SGI regulations and therefore 

recommends that § 150.15(a)(9) be 

revised in the final rule to include 

§ 73.22. 

Response: There are no Agreement 

State licensees that would possess SGI, 

only SGI–M. However, the NRC has 

added § 73.22 to the revised proposed 

rule to cover the possibility that an 

Agreement State licensee in the future 

might need to possess SGI. 

Other or Related Issues 

Comment: One commenter suggested 

that although the original proposed rule 

states that the purpose of the rule is to 

‘‘[e]xpand the types of security 

information covered by the definition of 

SGI in § 73.21 to include access 

authorization for background screening’’

there is no associated requirement that 

can be found in either §§ 73.22 or 73.23 

for background screening information to 

be protected as SGI. Another commenter 

noted that it would fully support 

changes in regulations on SGI that 

would preserve access authorizations 

for appropriate persons when needed, as 


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well as allow union leadership access to 

applicable safeguarded information. 

Response: The commenter is correct 

about the lack of an explicit requirement 

in either §§ 73.22 or 73.23 for ‘‘access 

authorization for background 

screening.’’ Detailed background 

screening requirements for determining 

trustworthiness and reliability are set 

forth in a licensee’s or an applicant’s 

composite physical security plan, which 

is included in §§ 73.22(a)(1)(i) and 

73.23(a)(1)(i) as a type of SGI. 

As to the second comment, 

authorization for access to SGI always 

considers need because one criterion for 

granting such access is an established 

‘‘need-to-know’’. The revised proposed 

rule preserves the application of the 

‘‘need to know’’ criterion as a 

requirement in §§ 73.22(b) and 73.23(b). 

The issue of access to SGI by agents 

representing employees of NRC 

licensees in employment-related 

grievances has previously been 

addressed in response to an earlier 

comment on that subject. 

Comments on Information Collection 

Requirements 

Comment: The Office of Management 

and Budget (OMB) received two 

comment letters on the proposed 

information collection requirements 

associated with §§ 73.21, 73.22, and 

73.23. An industry commenter stated 

that the estimate of the total number of 

hours needed annually to complete the 

requirement or request (5,926 or an 

average of nine hours per recordkeeper) 

is incorrect. The commenter estimates 

that initially thousands of hours will be 

required of each recordkeeper to review 

and mark the additional SGI or SGI–M 

documents as required in 

§§ 73.22(a)(1)(xii) and 73.23(a)(1)(x). In 

addition, the ongoing requirement of the 

original proposed rule would also 

exceed nine hours per recordkeeper. 

Response: The average number of 

hours that would be needed annually to 

complete the information collection 

requirement in the original proposed 

rule of 9 hours per respondent was an 

average that covered a wide range of 

entities from nuclear power reactors to 

irradiators. The calculation of the 9 

hours accounted for the range of those 

affected by the information collection 

requirement by assuming larger entities 

would have a larger number of 

documents to mark than smaller 

entities. The average burden of 9 hours 

seems low because there are many more 

smaller entities in the calculation than 

larger entities. The burden for power 

reactors, including implementation and 

ongoing burden, was approximately 26 

hours annually for each power reactor 

site. It is expected that the information 

collection burdens for the revised 

proposed rule will change to reflect the 

requirements in the revised rule. 

Comment: The commenter also 

disagreed with the following statement 

in the Abstract portion of the Paperwork 

Reduction Act Statement in the Federal 

Register notice for the original proposed 

rule: ‘‘The proposed amendments would 

be consistent with Commission 

practices reflected in previously issued 

orders and advisories.’’ According to the 

commenter, this statement is incorrect 

because the NRC has not previously 

directed that all of the information 

specified in proposed 10 CFR 73.22 be 

protected as SGI. 

Response: The original proposed 

amendments reflected Commission 

practices set forth in previously issued 

orders and advisories, results of the 

Commission’s comprehensive review of 

security policies and requirements, and 

comments received in the original 

proposed rulemaking. Any increased 

information collection burdens 

associated with the revised proposed 

amendments will be accounted for in 

the calculation of the burden estimate in 

a new OMB clearance package. 

Comment: A commenter suggested 

that eliminating portion marking 

requirements for documents containing 

SGI, and allowing the entire document 

to be marked as SGI, was a way to 

minimize the information collection 

burden. 

Response: Under §§ 73.22(d)(3) and 

73.23(d)(3), portion marking would only 

be required for transmittal documents 

for correspondence with the NRC. For 

example, cover letters that transmit a 

security plan or license application are 

required to be portion marked, but the 

attached plan or application is not. The 

burden associated with portion marking 

these documents is small, and would be 

outweighed by the benefit of being able 

to make correspondence with the NRC 

publicly available. 

Comment: A commenter provided two 

burden estimates for nuclear power 

reactor implementation of the original 

proposed rule. The first estimate 

assumed that the commenter’s 

‘‘comments or similar clarifications’’

would not be accounted for in the final 

rule. The second estimate assumed the 

commenter’s ‘‘comments or similar 

clarifications’’ would be accounted for 

in the final rule. The commenter 

concluded that the estimates showed a 

‘‘great and expansive potential for 

misinterpretation’’ of the original 

proposed rule. 

Response: The NRC has revised the 

original proposed rule language so that 

potential for misinterpretation would be 

minimized. The NRC has revised the 

number of recordkeepers in the OMB 

clearance package associated with 

power reactors from 104 to 64. The 

decrease in recordkeepers reflects 

multiple reactors at one site sharing SGI 

documents. The NRC has not included 

the cost of a dedicated copy machine 

and dedicated computers for 

reproducing and processing SGI 

documents. These costs are not 

requirements of the revised proposed 

rule and therefore will not be included 

in the OMB clearance package. 

Comment: One commenter requested 

that an accurate regulatory analysis and 

backfit analysis be completed and made 

available for public comment before the 

rule is finalized. 

Response: The regulatory analysis for 

the original proposed rule was available 

for public comment. It has been revised 

where appropriate in response to those 

comments and is being made available 

for comment with this revised proposed 

rule. A backfit analysis is not required 

because the requirements of this revised 

proposed rule that are not in the current 

10 CFR 73.21 are being proposed as a 

matter of adequate protection. 

Comment: A commenter requested 

that the NRC develop a rulemaking 

associated with the transportation of 

certain types and quantities of 

radioactive materials with the DOT. 

Response: A coordinated rulemaking 

with the DOT is not possible given the 

expedited rulemaking required for the 

protection of the common defense and 

security. 

Comment: A public meeting was 

requested by industry to ensure that the 

NRC staff understands certain concerns, 

such as the impacts on licensees of 

implementation of the rule, due to the 

large number of documents and the 

breadth of information held by a greater 

number of licensees. 

Response: The expedited rulemaking 

schedule did not allow the NRC time to 

hold a public meeting. However, NRC 

staff had several telephone 

conversations with the commenter in 

order to understand the commenter’s 

concerns regarding the OMB clearance 

package and the regulatory analysis. 

Comments on Regulatory Analysis 

Comment: One comment stated that 

the full-compliance baseline assumption 

in the main analysis of the regulatory 

analysis is incorrect because it is 

assumed that all licensee costs were 

incurred under Commission orders that 

were never imposed and that this does 

not account for licensee costs incurred 

under the rule. In addition, under the 

‘‘Pre-Order Analysis’’ in the regulatory 

analysis, the period of compliance is 


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assumed to be ten years. This time 

period is too short given the perpetual 

nature of the rule. 

Response: The NRC concurs with the 

comment that the full-compliance 

baseline assumption of the main 

analysis does not capture the costs 

associated with the rule that have not 

already been incurred under the current 

regulation at 10 CFR 73.21 or under 

Commission orders. Accordingly, the 

regulatory analysis has been revised to 

capture these costs under the main 

analysis. The NRC also concurs that the 

assumed ten year period of compliance 

is not long enough for some licensees, 

such as nuclear power reactors. 

Therefore, the NRC has calculated the 

annual costs for nuclear power reactors 

over a 33-year period. This is the 

approximate length of plant life 

remaining for power reactors assuming 

100 percent license renewal. 

Comment: A commenter stated that 

the assertion in the regulatory analysis 

that the original proposed rule would 

increase public confidence in the NRC 

and its licensees is not supported by 

data, nor is there a basis for such a 

subjective judgment. 

Response: In response to the comment 

that there is no basis for the qualitative 

benefit of increased public confidence 

resulting from the revised proposed 

rule, the NRC has revised the regulatory 

analysis to exclude either a qualitative 

value or impact related to public 

confidence in the NRC or its licensees. 

Comment: Another comment on the 

regulatory analysis is that the backfit 

analysis in Section XIV only considers 

the ‘‘main’’ analysis and therefore does 

not consider the perpetual and 

substantial costs to licensees associated 

with the rule. 

Response: A backfit analysis is not 

required because the requirements of 

this rule that are not in the current 10 

CFR 73.21 are being proposed as a 

matter of adequate protection. 

Comment: A commenter suggested 

that the rule be delayed until an 

accurate regulatory analysis and backfit 

analysis are completed. 

Response: The NRC believes that the 

revised regulatory analysis is an 

accurate analysis of the values and 

impacts associated with the revised 

proposed rule. The original regulatory 

analysis was available for public 

comment and has been revised where 

appropriate in response to comments. 

As stated above, a backfit analysis is not 

required. 

Comment: The regulatory analysis 

should consider the actual substantial 

cost of implementing the rule and 

should also quantify the need for 

SGI–M under § 73.23. 

Response: The regulatory analysis 

accounts for the costs of implementing 

the revised proposed rule. Assigning a 

quantitative value to the need for 

SGI–M under § 73.23 is not possible. 

However, as discussed in the regulatory 

analysis, there are substantial 

qualitative benefits associated with 

protecting SGI–M under § 73.23. 

C. Section-by-Section Analysis 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.4 ........................ A new definition of Safeguards Information is added to § 2.4: 

Safeguards Information means information not classified 

as National Security Information or Restricted Data which 

specifically identifies a licensee’s or applicant’s detailed 

control and accounting procedures for the physical protection of special nuclear material in quantities determined by 

the Commission through order or regulation to be significant to the public health and safety or the common defense and security; detailed security measures (including 

security plans, procedures, and equipment) for the physical protection of source, byproduct, or special nuclear 

material in quantities determined by the Commission 

through order or regulation to be significant to the public 

health and safety or the common defense and security; 

security measures for the physical protection and location 

of certain plant equipment vital to the safety of production 

or utilization facilities; and any other information within the 

scope of Section 147 of the Atomic Energy Act of 1954, 

as amended, the unauthorized disclosure of which, as determined by the Commission through order or regulation, 

could reasonably be expected to have a significant adverse effect on the health and safety of the public or the 

common defense and security by significantly increasing 

the likelihood of sabotage or theft or diversion of source, 

by product, or special nuclear material.

A definition of Safeguards Information has been added to 

this section in the revised proposed rule because the term 

is used in this part. This definition also appears in § 73.2. 

2.336(f)(1) ............ The following paragraph is added to § 2.336, ‘‘General discovery.’’ ‘‘In the event of a dispute over disclosure of documents and records including Safeguards Information referred to in Sections 147 and 181 of the Atomic Energy 

Act, as amended, the presiding officer may issue an order 

requiring disclosure if—‘‘[the requirements in 

§ 2.336(f)(1)(i) through (iv) are met].

This paragraph is added to the revised proposed rule in response to comments regarding discovery of Safeguards 

Information in NRC adjudicatory proceedings. Section 

2.336(f)(1) applies only in a dispute over disclosure of 

Safeguards Information. In the absence of a dispute over 

disclosure, participants in an adjudicatory proceeding may 

exchange information, including Safeguards Information. 

However, such disclosures would be subject to a protective order issued by the presiding officer of the proceeding 

to protect against the unauthorized disclosure of the information. 


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TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.336(f)(1)(i) ......... The following paragraph is added: ‘‘The presiding officer 

finds that the individual seeking access to Safeguards Information to participate in an NRC adjudication has the 

requisite ‘‘need to know’’, as defined in § 73.2;’’

This paragraph makes clear that: (1) ‘‘Need to know,’’ as defined in § 73.2, applies in NRC adjudicatory proceedings, 

and (2) the presiding officer of the proceeding makes the 

‘‘need to know’’ determination for access to SGI in a dispute over the ‘‘need to know’’ determination. In other 

words, access to Safeguards Information always requires 

a ‘‘need to know.’’ In the specific instance of a dispute 

over ‘‘need to know’’ in an NRC adjudicatory proceeding, 

the presiding officer makes the ‘‘need to know’’ determination as defined in § 73.2. 

2.336(f)(1)(ii) ........ The following paragraph is added: ‘‘The individual has undergone an FBI criminal history check, unless exempt 

under §§ 73.22(b)(3) or 73.23(b)(3), as applicable, by submitting fingerprints to the NRC Office of Administration, 

Security Processing Unit, Mail Stop T–6E46, U.S. Nuclear 

Regulatory Commission, Washington DC 20555–0001, 

and otherwise following the procedures in § 73.57(d) for 

submitting and processing fingerprints. However, before 

an adverse determination by the NRC Office of Administration on an individual’s criminal history check, the individual shall be afforded the protections of § 73.57;’’

This paragraph requires that individuals seeking access to 

Safeguards Information in order to participate in an NRC 

adjudicatory proceeding must undergo an FBI criminal history check, including fingerprinting, unless they are exempt from this requirement under §§ 73.22(b)(3) or 

73.23(b)(3). Those provisions cross-reference § 73.59, 

which lists categories of individuals who are exempt from 

the FBI criminal history and background check requirements for access to Safeguards Information by virtue of 

their occupational status. This paragraph also extends the 

protections provided by § 73.57 to participants in NRC adjudicatory proceedings before an adverse determination is 

made by the NRC Office of Administration on their criminal history check. 

2.336(f)(1)(iii) ....... The following paragraph is added: ‘‘The NRC Office of Administration has found, based upon a background check, 

that the individual is trustworthy and reliable, unless exempt from the background check requirement pursuant to 

§§ 73.22(b)(3) or 73.23(b)(3), as applicable. However, before adverse determination by the NRC Office of Administration on an individual’s background check for trustworthiness and reliability, the individual shall be afforded 

the protections provided by § 73.57.’’

This paragraph requires that individuals seeking access to 

Safeguards Information in order to participate in an NRC 

adjudicatory proceeding must undergo a background 

check for trustworthiness and reliability unless exempt 

from that requirement under §§ 73.22(b)(3) or 73.23(b)(3), 

which cross-reference § 73.59. This paragraph extends 

the protections provided by § 73.57 to participants in NRC 

adjudicatory proceedings before an adverse determination 

by the NRC Office of Administration on their background 

checks for trustworthiness and reliability. 

2.336(f)(1)(iv) ....... Participants, potential witnesses, and attorneys for whom the 

NRC Office of Administration has made a final adverse 

determination on trustworthiness and reliability may request the presiding officer to review the adverse determination. The request may also seek to have the Chairman of the Atomic Safety and Licensing Board Panel designate an officer other than the presiding officer of the proceeding to review the adverse determination. For purposes of review, the adverse determination must be in 

writing and set forth the grounds for the determination. 

The request for review shall be served on the NRC staff 

and may include additional information for review by the 

presiding officer. The request must be filed within 15 days 

after receipt of the adverse determination by the individual 

against whom the adverse determination has been made. 

Within 10 days of receipt of the request for review and 

any additional information, the NRC staff will file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. The presiding officer may 

reverse the Office of Administration’s final adverse determination only if the officer finds, based on all the information submitted, that the adverse determination constitutes 

an abuse of discretion. The presiding officer’s decision 

must be rendered within 15 days after receipt of the staff 

filing indicating that the request for review and additional 

information has not changed the NRC Office of Administration’s adverse determination.

This paragraph establishes detailed procedures for participants, potential witnesses, and attorneys to appeal a final 

adverse determination by the NRC Office of Administration on an individual’s trustworthiness and reliability determination for access to SGI. 

Participants, potential witnesses, and attorneys may request 

that the Chairman of the Atomic Safety and Licensing 

Board Panel designate an officer other than the proceeding officer of the proceeding to review the NRC Office 

of Administration’s adverse determination. 

In addition, this paragraph contains the following requirements: Documentation by the Office of Administration of 

an adverse determination and the time periods for filing 

and service of the request for review, and issuance by the 

presiding officer of a decision on the request for review. 

The standard for reversal by the presiding officer of the 

Office of Administration’s adverse determination is a finding that the determination constitutes an abuse of discretion. 

2.336(f)(2) ............ The following paragraph is added: ‘‘The presiding officer 

may include in an order any protective terms and conditions (including affidavits of non-disclosure) as may be 

necessary and appropriate to limit the disclosure to parties 

in the proceeding, to interested States and other governmental entities participating under § 2.315(c), and to their 

qualified witnesses and counsel.’’

This provision authorizes the presiding officer to prescribe 

terms and conditions necessary and appropriate to ensure 

that disclosure of Safeguards Information is limited to authorized individuals. 


rwilkins on PROD1PC63 with PROPOSAL_3
64030 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.336(f)(3) ............ The following paragraph is added: ‘‘When Safeguards Information protected from unauthorized disclosure under Section 147 of the Atomic Energy Act, as amended, is received and possessed by a participant other than the 

NRC staff, it must also be protected according to the requirements of § 73.21 and the requirements of § 73.22 or 

§ 73.23 of this chapter, as applicable.’’

This paragraph extends requirements for the protection of 

Safeguards information in §§ 73.21, 73.22, and 73.23, as 

applicable, to anyone in possession or receipt of Safeguards Information. 

2.336(f)(4) ............ The following paragraph is added: ‘‘The presiding officer 

may also prescribe additional procedures to effectively 

safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of 

the procedural rights which would be available if Safeguards Information were not involved.’’

This paragraph authorizes the presiding officer of the proceeding to prescribe measures in addition to those described in §§ 73.21, 73.22, and 73.23, as applicable, to 

prevent the disclosure of Safeguards Information to unauthorized individuals. 

2.336(f)(5) ............ The following paragraph is added: ‘‘In addition to any other 

sanction that may be imposed by the presiding officer for 

violation of an order issued pursuant to this paragraph, 

violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under Section 147 of the Atomic Energy Act, as amended, may be 

subject to a civil penalty imposed under § 2.205.’’

This paragraph authorizes civil penalties for disclosure of 

Safeguards Information in violation of a presiding officer’s 

protective order or orders. 

2.336(f)(6) ............ The following paragraph is added: ‘‘For the purpose of imposing the criminal penalties contained in Section 223 of 

the Atomic Energy Act, as amended, any order issued 

pursuant to this paragraph with respect to Safeguards Information is considered to be an order issued under Section 161b of the Atomic Energy Act.’’

This paragraph authorizes criminal penalties for disclosure 

of Safeguard Information in violation of a presiding officer’s protective order or orders. 

2.705(c)(2) ........... The following paragraph is added to § 2.705, ‘‘Discovery—

additional methods.’’

‘‘In the case of documents and records including Safeguards 

Information referred to in Sections 147 and 181 of the 

Atomic Energy Act, as amended, the presiding officer may 

issue an order requiring disclosure if—’’

This paragraph is added to the revised proposed rule in response to comments regarding discovery of SGI in NRC 

adjudicatory proceedings. The paragraph authorizes the 

presiding officer to issue an order requiring disclosure of 

certain documents and records, including Safeguards Information, provided that the requirements noted and discussed below are met. 

2.705(c)(2)(i) ........ The following paragraph is added: ‘‘The presiding officer 

finds that the individual seeking access to Safeguards Information in order to participate in an NRC proceeding 

has the requisite ‘‘ need to know,’’ as defined in § 73.2’’; 

This provision makes clear that a ‘‘need to know,’’ as defined in § 73.2, applies to an individual seeking access to 

SGI in order to participate in an NRC proceeding. The 

presiding officer of the proceeding makes the ‘‘need to 

know’’ determination for access to SGI in a dispute over 

the ‘‘need to know’’ determination. In other words, access 

to Safeguards Information always require a ‘‘need to 

know.’’ In the specific instance of a dispute over the ‘‘need 

to know’’ in an NRC adjudicatory proceeding, the presiding officer makes the ‘‘need to know’’ determination as 

defined in § 73.2. 

2.705(c)(2)(ii) ....... The following paragraph is added: ‘‘The individual has undergone an FBI criminal history check, unless exempt 

under §§ 73.22(b)(3) or 73.23(b)(3), as applicable, by submitting fingerprints to the NRC Office of Administration, 

Security Processing Unit, Mail Stop T–6E46, U.S. Nuclear 

Regulatory Commission, Washington, DC 20555–0001, 

and otherwise follow the procedures in § 73.57(d) for submitting and processing fingerprints. However, before an 

adverse determination by the NRC Office of Administration on an individual criminal history check, the individual 

shall be afforded the protections of 73.57; and’’

This paragraph requires that individuals seeking access to 

Safeguards Information in order to participate in an NRC 

adjudicatory proceeding must under go an FBI criminal 

history check, including fingerprinting, unless they are exempt from this requirement under §§ 73.22(b)(3) or 

73.23(b)(3). Those provisions cross-reference § 73.59, 

which lists categories of individuals who are exempt from 

the FBI criminal history and background check requirements for access to Safeguards Information by virtue of 

their occupational status. This paragraph also extends the 

protections provided by § 73.57 to participants in NRC adjudicatory proceedings before an adverse determination is 

made by the NRC Office of Administration on their FBI 

criminal history check. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64031 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.705(c)(2)(iii) ....... The following paragraph is added: ‘‘NRC Office of Administration has found, based upon a background check, that 

the individual is trustworthy and reliable, unless exempt 

§§ 73.22(b)(3) or 73.23(b)(3) However, before an adverse 

determination by the NRC Office of Administration on an 

individual’s background check for trustworthiness and reliability, the individual shall be afforded the protections provided by § 73.57.’’

This paragraph provides that individuals seeking access to 

Safeguards Information in order to participate in an NRC 

adjudicatory proceeding must under go a background 

check for trustworthiness and reliability unless exempt 

from this requirement under §§ 73.22(b)(3) or 73.23(b)(3). 

Those provisions cross-reference § 73.59, which lists categories of individuals who are exempt from the FBI criminal history check and background check requirements for 

access to SGI by virtue of their occupational status. This 

paragraph also extends the protections provided by 

§ 73.57 before an adverse determination by the NRC Office of Administration on a background check for trustworthiness and reliability. 

2.705(c)(2)(iv) ...... The following paragraph is added: ‘‘An individual seeking to 

participate in an NRC adjudicatory proceeding for whom 

the NRC Office of Administration has made a final adverse determination on trustworthiness and reliability may 

request the presiding officer to review the adverse determination. For purposes of review, the adverse determination must be in writing and set forth the grounds for the 

determination. The request for review shall be served on 

the NRC staff and may include additional information for 

review by the presiding officer. The request must be filed 

within 15 days after receipt of the adverse determination 

by the individual against whom the adverse determination 

has been made. Within 10 days of receipt the request for 

review and any additional information, the NRC staff will 

file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. The presiding 

officer may reverse the Office of Administration’s final adverse determination only if the officer finds, based on all 

the information submitted, that the adverse determination 

constitutes an abuse of discretion. The presiding officer’s 

decision must be rendered within 15 days after receipt of 

the staff filing indicating that the request for review and 

additional information has not changed the NRC Office of 

Administration’s adverse determination.’’

This paragraph establishes detailed procedures for an individual seeking access to SGI in order to participate in an 

NRC adjudicatory proceeding to appeal a final adverse 

determination by the NRC Office of Administration on 

trustworthiness and reliability for access to SGI. The paragraph contains the following requirements: Documentation 

by the Office of Administration of an adverse determination and the time periods for filing and service of the request for review, responding to the request, and for 

issuance of a decision by the presiding officer on a request for review. The presiding officer may reverse the Office of Administration’s final adverse determination only if 

the officer finds, based on all the information submitted, 

that the adverse determination constitutes an abuse of 

discretion. 

2.705(c)(3) ........... The following paragraph is added: ‘‘The presiding officer 

may include in an order any protective terms and conditions (including affidavits of non-disclosure) as may be 

necessary and appropriate to limit the disclosure to parties 

in the proceeding, to interested States and other governmental entities participating under § 2.315(c), and to their 

qualified witnesses and counsel.’’

This provision authorizes the presiding officer to prescribe 

terms and conditions necessary and appropriate to ensure 

that disclosure of Safeguards Information is limited to authorized individuals. 

2.705(c)(4) ........... The following paragraph is added: ‘‘When Safeguards Information protected from unauthorized disclosure under Section 147 of the Atomic Energy Act, as amended, is received and possessed by a party other than the NRC 

staff, it must also be protected according to the requirements of § 73.21 and the requirements of § 73.22 or 

§ 73.23 of this chapter, as applicable.’’

This paragraph extends requirements for protection of Safeguards Information in § §73.21, 73.22, and 73.23, as applicable, to anyone in possession of Safeguards Information. 

2.705(c)(5) ........... The following paragraph is added: ‘‘The presiding officer 

may also prescribe additional procedures to effectively 

safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of 

the procedural rights which would be available if Safeguards Information were not involved.’’

This paragraph authorizes the presiding officer of the proceeding to prescribe measures in addition to those described in §§ 73.21, 73.22, and 73.23, as applicable, to 

prevent disclosure of Safeguards Information to unauthorized individuals. 

2.705(c)(6) ........... The following paragraph is added: ‘‘In addition to any other 

sanction that may be imposed by the presiding officer for 

violation of an order issued pursuant to this paragraph, 

violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under Section 147 of the Atomic Energy Act, as amended, may be 

subject to a civil penalty imposed under § 2.205.’’

This paragraph authorizes civil penalties for disclosure of 

Safeguards Information in violation of a presiding officer’s 

protective order or orders. 


rwilkins on PROD1PC63 with PROPOSAL_3
64032 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.705(c)(7) ........... The following paragraph is added: ‘‘For the purpose of imposing the criminal penalties contained in Section 223 of 

the Atomic Energy Act, as amended, any order issued 

pursuant to this paragraph with respect to Safeguards Information is considered to be an order issue under section 

161b of the Atomic Energy Act.’’

This paragraph authorizes criminal penalties for disclosure 

of Safeguards Information in violation of a presiding officer’s protective order or orders. 

2.709(f) ................. This subsection of § 2.709, ‘‘Discovery against the NRC 

staff’’ has been revised and subdivided as noted below. 

This paragraph has been revised in response to comments 

regarding discovery of SGI in NRC adjudicator proceedings. It has been subdivided in the revised proposed 

rule for clarity. This paragraph continues to apply to discovery documents and records including Safeguards Information, against the NRC staff. 

2.709(f)(1) ............ This paragraph reads: ‘‘In the case of requested documents 

and records, (including Safeguards Information referred to 

in Section 147 and 181 of the Atomic Energy Act, as 

amended) exempt from disclosure under § 2.390, the presiding officer may issue an order disclosure to the Executive Director of Operations or delegate of the Executive 

Director for Operations, to produce the documents or 

records (or any other order issued ordering productions of 

the document or records) if—’’

This paragraph sets forth the circumstances in which 

§ 2.709(f) applies. As in the original proposed rule, 

§ 2.709(f) establishes procedures for the discovery against 

the NRC staff of documents and records, including Safeguards Information, which are exempt from disclosure 

under § 2.390, ‘‘Public inspections, exemptions, requests 

for withholding.’’

2.709(f)(1)(i) ......... The following is added: ‘‘The presiding officer finds that the 

individual seeking access to Safeguards Information to 

participate in an NRC adjudication has the requisite ‘‘need 

to know’’, as defined in § 73.2;’’ The phrase ‘‘but whose 

disclosure is found by the presiding officer to be necessary to a proper decision in the proceeding’’ has been 

deleted from § 2.709(f).

This paragraph makes clear that: (1) ‘‘Need to know,’’ as defined in § 73.2, applies in NRC adjudicatory proceedings, 

and (2) the presiding officer of the proceeding makes the 

‘‘need to know’’ determination for access to SGI in a dispute over the ‘‘need to know’’ determination. In other 

words access to Safeguards Information always requires a 

‘‘need to know.’’ In the specific instance of a dispute over 

‘‘need to know’’ in an NRC adjudicatory proceeding, the 

presiding officer makes the ‘‘need to know’’ determination 

as defined in § 73.2. 

2.709(f)(1)(ii) ........ The following paragraph is added: ‘‘The individual has undergone an FBI criminal history check, unless exempt 

§§ 73.22(b)(3) or § 73.23(b)(3), by submitting fingerprints 

to the NRC Office of Administration, Security Processing 

Unit, Mail Stop T–6E46, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001, and otherwise following the procedures in § 73.57(d) for submitting and 

processing fingerprints. However, before an adverse determination by the NRC Office of Administration on an individual’s criminal history check the individual shall be afforded the protections provided by § 73.57; and’’

This paragraph makes clear that individuals seeking access 

to Safeguards Information in order to participate in an 

NRC adjudicatory proceeding must undergo an FBI criminal history check, including fingerprinting, unless they are 

exempt from this requirement under §§ 73.22(b)(3) or 

73.23(b)(3), which cross-reference § 73.59. Section 73.59 

lists categories of individuals who are exempt from the 

FBI criminal history and background check requirements 

for access to Safeguards Information by virtue of their occupational status. This paragraph extends the protections 

provided by § 73.57 to participants in NRC adjudications 

before an adverse determination by the NRC Office of Administration on their FBI criminal history check. 

2.709(f)(1)(iii) ....... The following paragraph is added: ‘‘The NRC Office of Administration finds, based upon a background check, that 

the individual is trustworthy and reliable, unless exempt 

under §§ 73.22(b)(3) or 73.23(b)(3), as applicable. However, before an adverse determination by the NRC Office 

of Administration on an individual’s background check for 

trustworthiness and reliability, the individual shall be afforded the protections provided by § 73.57.’’

This paragraph makes clear that individuals seeking access 

to Safeguards Information in order to participate in an 

NRC adjudicatory proceeding must undergo a background 

check for trustworthiness and reliability unless exempt 

from this requirement under §§ 73.22(b)(3) or 73.23(b)(3), 

as applicable. These provisions cross-reference § 73.59, 

which lists categories of individuals who are exempt from 

the FBI criminal history check and background check requirements for access to SGI by virtue of their occupational status. This paragraph extends the protections provided by § 73.57 to participants in NRC adjudications before an adverse determination by the NRC Office of Administration on their background checks. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64033 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.709(f)(1)(iv) ....... The following paragraph is added: Participants, potential witnesses, and attorneys for whom the NRC Office of Administration has made a final adverse determination on trustworthiness and reliability may request the presiding officer 

to review the adverse determination. The request may 

also seek to have the Chairman of the Atomic Safety and 

Licensing Board Panel designate an officer other than the 

presiding officer of the proceeding to review the adverse 

determination. For purposes of review, the adverse determination must be in writing and set forth the grounds for 

the determination. The request for review shall be served 

on the NRC staff and may include additional information 

for review by the presiding officer. The request must be 

filed within 15 days after receipt of the adverse determination by the individual against whom the adverse determination has been made. Within 10 days of receipt of the 

request for review and any additional information, the 

NRC staff will file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. 

The presiding officer may reverse the Office of Administration’s final adverse determination only if the officer finds, 

based on all the information submitted, that the adverse 

determination constitutes an abuse of discretion. The presiding officer’s decision must be rendered within 15 days 

after receipt of the staff filing indicating that the request for 

review and additional information has not changed the 

NRC Office of Administration’s adverse determination.

This paragraph establishes detailed procedures for participants, potential witnesses, and attorneys to appeal a final 

adverse determination by the NRC Office of Administration on an individual’s trustworthiness and reliability determination for access to SGI. 

Participants, potential witnesses, and attorneys may request 

that the Chairman of the Atomic Safety and Licensing 

Board Panel designate an officer other than the proceeding officer of the proceeding to review the NRC Office 

of Administration’s adverse determination. 

In addition, this paragraph contains the following requirements: Documentation by the Office of Administration of 

an adverse determination and the time periods for filing 

and service of the request for review, and issuance by the 

presiding officer of a decision on the request for review. 

The standard for reversal by the presiding officer of the 

NRC Office of Administration’s final adverse determination 

is a finding that the determination constitutes an abuse of 

discretion. 

2.709(f)(2) ............ The following paragraph is added: ‘‘The presiding officer 

may include in an order any protective terms and conditions (including affidavits of non-disclosure) as may be 

necessary and appropriate to limit the disclosure to parties 

in a proceeding, to interested States and other governmental entities participating under § 2.315(c), and to their 

qualified witnesses and counsel.’’

This provision authorizes the presiding officer to prescribe 

terms and conditions necessary and appropriate to ensure 

that disclosure of Safeguards Information is limited to authorized individuals. 

2.709(f)(3) ............ The following paragraph is added: ‘‘When Safeguards Information protection from unauthorized disclosure under Section 147 of the Atomic Energy Act, as amended, is received and possessed by a participant other than the 

NRC staff, it must also be protected according to the requirements of § 73.21 and the requirements of § 73.22 or 

§ 73.23 of this chapter, as applicable.’’

This paragraph extends requirements for protection of Safeguards Information in §§ 73.21, 73.22, and 73.23, as applicable, to anyone in possession of Safeguards Information. 

2.709(f)(4) ............ The following paragraph is added: ‘‘The presiding officer 

may also prescribe additional procedures to effectively 

safeguard and prevent disclosure of Safeguards Information to unauthorized persons with minimum impairment of 

the procedural rights which would be available if Safeguards Information were not involved.’’

This paragraph authorizes the presiding officer of the proceeding to prescribe measures in addition to those described in §§ 73.21, 73.22, and 73.23, as applicable to 

prevent disclosure of Safeguards Information to unauthorized individuals. 

2.709(f)(5) ............ The following paragraph is added: ‘‘In addition to any other 

sanction that may be imposed by the presiding officer for 

violation of an order issued pursuant to this paragraph, 

violation of an order pertaining to the disclosure of Safeguards Information protected from disclosure under Section 147 of the Atomic Energy Act, as amended, may be 

subject to a civil penalty imposed under § 2.205.’’

This paragraph authorizes civil penalties for disclosure of 

Safeguards Information in violation of a presiding officer’s 

protective order or orders. 

2.709(f)(6) ............ The following paragraph is added: ‘‘For the purpose of imposing the criminal penalties contained in Section 223 of 

the Atomic Energy Act, as amended, any order issued 

pursuant to this paragraph with respect to Safeguards Information is considered to be an order under Section 161b 

of the Atomic Energy Act.’’

This paragraph authorizes criminal penalties for disclosure 

of Safeguards Information in violation of a presiding officer’s protective order or orders. 

2.1010(b)(6) ......... This paragraph of § 2.1010, ‘‘Pre-License application presiding officer’’ has been reorganized and subdivided. The 

paragraph begins as follows: ‘‘Whether the material 

should be disclosed under a protective order containing 

such protective terms and conditions (including affidavits 

of nondisclosure) as may be necessary and appropriate to 

limit the disclosure to potential parties, interested government participants, and parties in a proceeding, or to their 

qualified witnesses and counsel.’’

This paragraph is revised in response to comments regarding discovery of SGI in NRC adjudicatory proceedings. It 

has been subdivided for clarity. As in § 2.1010(b)(6) of the 

original proposed rule, this paragraph authorizes the PreLicense Application Presiding Officer to resolve disputes 

over disclosure of Safeguards Information. 


rwilkins on PROD1PC63 with PROPOSAL_3
64034 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.1010(b)(6)(i) ...... The following paragraph is added: ‘‘The Pre-License Application Presiding Office may issue an order requiring disclosure of Safeguards Information if—’’This paragraph authorizes the Pre-License Application Presiding Officer to issue an order requiring disclosure of 

Safeguards Information if the requirements in the subsequent provisions are met. 

2.1010(b)(6)(i)(A) The following paragraph is added: ‘‘The Pre-License Application Presiding Officer finds that the individual seeking 

access to Safeguards Information in order to participate in 

an NRC adjudication has the requisite ‘‘need to know,’’ as 

defined in § 73.2’’; 

This paragraph makes clear that (1) ‘‘need to know’’, as defined in § 73.2, applies in the context of NRC adjudicatory 

proceedings, and (2) the presiding officer of the proceeding makes the ‘‘need to know’’ determination for access to SGI in a dispute over the ‘‘need to know’’ determination. In other words, access to Safeguards Information always requires a ‘‘need to know.’’ In a dispute over 

‘‘need to know’’ in an NRC adjudicatory proceeding, the 

presiding officer makes the ‘‘need to know’’ determination 

as that term is defined in § 73.2. 

2.1010(b)(6)(i)(B) The following paragraph is added: ‘‘The individual has undergone an FBI criminal history check, unless exempt 

under §§ 73.22(b)(3) or 73.23(b)(3), as applicable by submitting fingerprints to the NRC Office of Administration, 

Security Processing Unit, Mail Stop T–6E46, U.S. Nuclear 

Regulatory Commission, Washington D.C. 20555–0001, 

and otherwise following the procedures in § 73.57(d) for 

submitting and processing fingerprints. However, before 

an adverse determination by the NRC Office of Administration on an individual’s criminal history check, the individual shall be afforded the protections of § 73.57;’’

This paragraph requires that individuals seeking access to 

Safeguards Information in order to participate in an NRC 

adjudicatory proceeding must undergo an FBI criminal history check, including fingerprinting, unless they are exempt from this requirement under §§ 73.22(b) or 73.23(b). 

Those provisions cite § 73.59, which lists categories of individuals who are exempt from the FBI criminal history 

check and background requirements for access to Safeguards Information by virtue of their occupational status. 

This paragraph also extends the protections provided by 

§ 73.57 to participants in NRC adjudications before an adverse determination by the NRC Office of Administration 

on their FBI criminal history checks. 

2.1010(b)(6)(i)(C) The following paragraph is added: ‘‘A finding by the NRC 

Office of Administration, based upon a background check, 

that the individual is trustworthy and reliable, unless exempt under §§ 73.22(b)(3) or 73.23(b)(3), as applicable. 

However, before an adverse determination on an individual’s background check for trustworthiness and reliability, 

the individual shall be afforded the protections provided by 

§ 73.57.’’

This paragraph makes clear that individuals seeking access 

to Safeguards Information in order to participate in an 

NRC adjudicatory proceeding must undergo a background 

check for trustworthiness and reliability unless exempt 

from this requirement under §§ 73.22(b)(3)(b)(3) or 

73.23(b)(3). Those provisions contain a cross-reference to 

§ 73.59, which lists categories of individuals who are exempt from the FBI criminal history check and background 

check requirements for access to Safeguards Information 

by virtue of their occupational status. This paragraph extends the protections provided by § 73.57 to participants in 

NRC adjudications before an adverse determination by 

the NRC Office of Administration on their background 

checks for trustworthiness and reliability. 

2.1010(b)(6)(i)(D) Participants, potential witnesses, and attorneys for whom the 

NRC Office of Administration has made a final adverse 

determination on trustworthiness and reliability may request the presiding officer to review the adverse determination. The request may also seek to have the Chairman of the Atomic Safety and Licensing Board Panel designate an officer other than the presiding officer of the proceeding to review the adverse determination. For purposes of review, the adverse determination must be in 

writing and set forth the grounds for the determination. 

The request for review shall be served on the NRC staff 

and may include additional information for review by the 

presiding officer. The request must be filed within 15 days 

after receipt of the adverse determination by the individual 

against whom the adverse determination has been made. 

Within 10 days of receipt of the request for review and 

any additional information, the NRC staff will file a response indicating whether the request and additional information has caused the NRC Office of Administration to reverse its adverse determination. The presiding officer may 

reverse the Office of Administration’s final adverse determination only if the officer finds, based on all the information submitted, that the adverse determination constitutes 

an abuse of discretion. The presiding officer’s decision 

must be rendered within 15 days after receipt of the staff 

filing indicating that the request for review and additional 

information has not changed the NRC Office of Administration’s adverse determination.

This paragraph establishes detailed procedures for participants, potential witnesses, and attorneys to appeal a final 

adverse determination by the NRC Office of Administration on an individual’s trustworthiness and reliability determination for access to SGI. Participants, potential witnesses, and attorneys may request that the Chairman of 

the Atomic Safety and Licensing Board Panel designate 

an officer other than the proceeding officer of the proceeding to review the NRC Office of Administration’s adverse determination. In addition, this paragraph contains 

the following requirements: documentation by the Office of 

Administration of an adverse determination and the time 

periods for filing and service of the request for review, responding to the request, and for issuance of a decision by 

the presiding officer. The standard for reversal by the presiding officer of the NRC Office of Administration’s final 

adverse determination made by the NRC Office of Administration. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64035 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

2.1010(b)(6)(ii) ..... The following provision is added: ‘‘The Pre-License Application Presiding Officer may include in an order any protective terms and conditions (including affidavits of non-disclosure) as may be necessary and appropriate to limit the 

disclosure to parties in the proceeding, to interested 

States and other governmental entities participating under 

§ 2.315(c) and to their qualified witnesses and counsel.’’

This provision authorizes the Pre-License Application Presiding Officer to prescribe terms and conditions necessary 

to insure that disclosure of Safeguards Information is limited to authorized individuals. 

2.1010(b)(6)(iii) .... The following paragraph is added: ‘‘When Safeguards Information protected from unauthorized disclosure under Section 147 of the Atomic Energy Act of 1954, as amended, 

is received and possessed by a party other than the NRC 

staff, it must also be protected according to the requirement of § 73.21 and the requirements of § 73.22 or 

§ 73.23 of this chapter, as applicable.’’

This paragraph extends requirements for protection of Safeguards Information in §§ 73.21, 73.22, and 73.23, as applicable, to anyone in possession of Safeguards Information. 

2.1010(b)(6)(iv) .... The following paragraph is added: ‘‘The Pre-License Application Presiding Officer may also prescribe additional procedures as will effectively safeguard and prevent disclosure of Safeguards Information to unauthorized persons 

with minimum impairment of the procedural rights which 

would be available if Safeguards Information were not involved.’’

This paragraph authorizes the Pre-License Application Presiding Officer to prescribe measures in addition to those 

described in §§ 73.21, 73.22, and 73.23 as applicable, to 

prevent disclosure of Safeguards Information to unauthorized individuals. 

2.1010(b)(6)(v) ..... The following paragraph is added: ‘‘In addition to any other 

sanction that may be imposed by the Pre-License Application Presiding Officer for violation of an order issued pursuant to this paragraph, violation of an order pertaining to 

the disclosure of Safeguards Information protected from 

disclosure under Section 147 of the Atomic Energy Act of 

1954, as amended, may be subject to a civil penalty imposed under § 2.205.’’

This paragraph authorizes civil penalties for disclosure of 

Safeguards Information in violation of a protective order or 

orders. 

2.1010(b)(6)(vi) .... The following paragraph is added: ‘‘For the purpose of imposing the criminal penalties contained in Section 223 of 

the Atomic Energy Act of 1954, as amended, any order 

issued pursuant to this paragraph with respect to Safeguards Information is considered to be an order under 

Section 161b of the Atomic Energy Act of 1954, as 

amended.’’

This paragraph authorizes criminal penalties for disclosure 

of Safeguards Information in violation of a protective order 

or orders. 

30.32(j) ................. The following phrases are deleted: ‘‘in quantities determined 

by the Commission through order or regulation to be significant to the public health and safety or the common defense and security who prepares a physical security plan, 

security procedures for emergencies, or guard qualification and training procedures,’’ and ‘‘the plans, procedures, 

and other related.’’ The phrase ‘‘subject to the requirements of part 73 of this chapter’’ is added.

The deletions are made to simplify the original proposed rule 

text and make clear that applicants must protect all SGI 

and SGI–M, not just that contained in physical security 

plans, security procedures for emergencies, or guard qualification and training procedures. The addition to the text 

makes clear that not all applicants for a part 30 license 

would be subject to physical security or information security requirements. 

30.34(i) ................. The following phrase is deleted: ‘‘physical security plans, security procedures for emergencies, guard qualification and 

training procedures, and other related.’’ The word ‘‘are’’ is 

changed to ‘‘is.’’

This change conforms this section with the requirements of 

§ 30.32(j). 

40.31(m) ............... A new first sentence is added: ‘‘Each applicant for a license 

for the possession of source material at a facility for the 

production of uranium hexafluoride shall protect Safeguards Information against unauthorized disclosure in accordance with the requirements in §§ 73.21 and 73.22 of 

this chapter, as applicable.’’ A new second sentence is 

added: ‘‘Each applicant for a license for source material 

subject to the requirements of part 73 of this chapter shall 

protect unauthorized disclosure in accordance with the requirements in § 73.21 and the requirements in § 73.22 or 

§ 73.23 of this chapter, as applicable.’’

This change clarifies that applicants for licenses for the production of uranium hexafluoride would be required to protect security information as SGI in accordance with 

§§ 73.21 and 73.22. Other source material licensees must 

protect SGI and SGI–M in accordance with §§ 73.21, 

73.22, and 73.23, as applicable. 

40.41(h) ................ The phrase ‘‘physical security plans, security procedures for 

emergencies, guard qualification and training procedures, 

and other related’’ is removed. The word ‘‘are’’ is changed 

to ‘‘is.’’

The change corrects a verb tense and also simplifies the 

text to make clear that applicants would be required to 

protect all SGI and SGI–M not just that contained in physical security plans, security procedures for emergencies, 

or guard qualification and training procedures. 

50.34(e) ................ The section is revised to read ‘‘Each applicant for a license 

to operate a production or utilization facility shall protect 

Safeguards Information against unauthorized disclosure in 

accordance with the requirements in § 73.21 and the requirements in § 73.22 or § 73.23 of this chapter, as applicable.’’

This change is made to simplify the revised proposed rule 

text and make clear that applicants would be required to 

protect all SGI and SGI–M, not just that contained in 

physical security plans, security procedures for emergencies, or guard qualification and training procedures. 


rwilkins on PROD1PC63 with PROPOSAL_3
64036 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

50.54(v) ................ The following phrase is deleted: ‘‘Physical security, safeguards contingency and guard qualification and training 

plans and other related.’’ The word ‘‘are’’ is changed to 

‘‘is.’’

This change is to conform with the change in § 50.34(e). 

52.17(d) ................ The addition of this section requires applicants for early site 

permits under this part to protect Safeguards Information 

against unauthorized disclosure in accordance with the requirements in §§ 73.21 and 73.22 of this chapter, as applicable.

This change is made in concert with the change to §§ 52.47 

and 52.79 to require applicants for standard design certifications and combined licenses to protect SGI from unauthorized disclosure. 

60.21(d) ................ The word ‘‘as’’ is deleted. The phrase ‘‘the detailed security 

measures for physical protection of high-level radioactive 

waste, including the design for physical protection, the 

safeguards contingency plan, the security organization 

personnel training and qualification plan, and other related 

security information’’ is replaced with ‘‘and shall protect 

classified information in accordance with the requirements 

of parts 25 and 95 of this chapter, as applicable.’’

This change is made to simplify the revised proposed rule 

text and make clear that applicants would be required to 

protect all SGI and SGI–M, not just that contained in 

physical security, safeguards contingency, or guard qualification and training plans. The change also reflects that 

applicants under Part 60 would be required to protect 

classified information. 

60.42(d) ................ The phrase ‘‘the detailed security measures for physical protection of high-level radioactive waste, including the design for physical protection, the safeguards contingency 

plan, the security organization personnel training and 

qualification plan, and other related security information’’

is replaced with ‘‘Safeguards Information.’’ A new sentence is added: ‘‘The licensee shall ensure that classified 

information is protected in accordance with the requirements of parts 25 and 95 of this chapter, as applicable.’’

This change conforms this section to the requirements of 

§ 60.21(d). 

63.21(d) ................ A cross-reference to § 73.23 is added. The word ‘‘as’’ is deleted. The phrase ‘‘the detailed security measures for 

physical protection of high-level radioactive waste, including the design for physical protection, the safeguards contingency plan, and the security organization personnel 

training and qualification plan, and other related Safeguards Information’’ is replaced with ‘‘as applicable, and 

shall protect classified information in accordance with the 

requirements of parts 25 and 95 of this chapter, as applicable.’’

This change is made in concert with the change to part 60 

to reflect protection of the same type of information for 

part 60 and part 63 applicants. 

63.42(e) ................ A cross-reference to § 73.23 is added. The phrase ‘‘the detailed security measures for physical protection of highlevel radioactive waste, including the design for physical 

protection, the safeguards contingency plan, and security 

organization personnel training and qualification plan, and 

other related’’ is removed. The phrase ‘‘and shall protect 

classified information in accordance with the requirements 

of parts 25 and 95 of this chapter, as applicable’’ is added.

This change conforms this section to the requirements of 

§ 63.21(d). 

70.22(l) ................. The section is revised to read ‘‘Each applicant for a license 

shall protect Safeguards Information against unauthorized 

disclosure in accordance with the requirements in § 73.21 

and the requirements of § 73.22 or § 73.23 of this chapter, 

as applicable, and shall protect classified information in 

accordance with the requirements of parts 25 and 95 of 

this chapter, as applicable.’’

This change is made to simplify the rule text and make clear 

that all SGI and SGI–M would have to be protected, not 

just that contained in physical security, safeguards contingency, or guard qualification and training plans. The 

change also reflects that applicants under part 70 would 

be required to protect classified information. 

70.22(o) ................ This paragraph is deleted ....................................................... This paragraph is eliminated as it is no longer necessary in 

light of the change to § 70.22(l). 

§ 70.32(j) .............. The phrases ‘‘a formula quantity of strategic’’ and ‘‘physical 

security, safeguards contingency, and guard qualification 

and training plans and other related’’ are deleted. The 

word ‘‘are’’ is changed to ‘‘is.’’ The phrase ‘‘and shall protect classified information in accordance with the requirements of parts 25 and 95 of this chapter, as applicable’’ is 

added.

The deletions are made to simplify the revised proposed rule 

text and make clear that all SGI and SGI–M would have 

to be protected, not just SGI or SGI–M contained in physical security, safeguards contingency, or guard qualification and training plans. There is also a change to correct 

verb tense. The deletions are made to simplify the revised 

proposed rule text and make clear that all SGI and SGI–M 

would have to be protected, not just SGI or SGI–M contained in physical security, safeguards contingency, or 

guard qualification and training plans. 

70.32(l) ................. The paragraph is deleted ........................................................ This paragraph is eliminated as it is no longer necessary in 

light of the change to § 70.32(j). 

71.11 .................... The phrase ‘‘spent fuel’’ is changed to ‘‘irradiated reactor 

fuel.’’ The word ‘‘a’’ is added before ‘‘critical mass.’’

This change corrects a grammatical error and makes the 

terminology consistent with that used in 10 CFR part 73. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64037 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

72.212(b)(5)(v) ..... The phrase ‘‘receives, transfers, and possesses power reactor spent fuel, power reactor-related Greater than Class C 

(GTCC) waste, and other’’ is changed to ‘‘receives and 

possesses power reactor spent fuel and other.’’

This change recognizes that generally licensed independent 

spent fuel storage installations are not authorized to transfer SNF pursuant to § 72.120, nor are such facilities authorized to possess Greater than Class C waste. 

73.2 ...................... Definitions of the new terms ‘‘background check’’ and 

‘‘quantities of concern’’ are added. The revised proposed 

rule states; ‘‘Background check includes, at a minimum, a 

criminal history check, verification of identify, employment 

history, education, and personal references. Individuals 

engaged in activities subject to regulation by the Commission, applicants for licenses to engage in Commission-regulated activities, and individuals who have notified the 

Commission in writing of an intent to file an application for 

licensing, certification, permitting, or approval of a product 

or activity subject to regulation by the Commission are required under § 73.57 to conduct criminal history checks 

before granting access to Safeguards Information. A background check must be sufficient to support the trustworthiness and reliability determination so that the person 

performing the check and the Commission have assurance that granting individuals access to Safeguards Information does not constitute an unreasonable risk to the 

public health and safety or the common defense and security.’’

The term ‘‘background check’’ replaces the term ‘‘comprehensive background check’’ to more clearly distinguish 

the background check requirements for access to SGI 

from other regulations requiring a ‘‘background investigation’’ for other purposes (10 CFR 73.56, ‘‘Personnel access authorization requirements for nuclear power plants). 

In additional criminal history check, including 

fingerprinting, is included as part of the background check 

because the background check establishes the overall 

trustworthiness and reliability of an individual for access to 

SGI. The response to comments on the definition of 

‘‘background check’’ contains more details on this definition. 

The definition of ‘‘quantities of concern’’ reads: ‘‘ ‘Quantities 

of Concern’ means the quantities of the radionuclides 

meeting or exceeding the threshold limits set forth in 

Table I–1 of Appendix I of this part.’’

The term ‘‘quantities of concern’’ is being added to the revised proposed rule because the term now appears in 

new ‘‘Appendix I to part 73, Category 1 and Category 2 

Radioactive Materials, Table I–1—Quantities of Concern 

Threshold Limits.’’ As defined, the term would mean the 

quantities of the radionuclides meeting or exceeding the 

threshold limits set forth in the table. 

The revised proposed rule would amend definition of ‘‘need 

to know’’ to read: ‘‘ ‘Need to know’ means a determination 

by a person having responsibility for protecting Safeguards Information that a proposed recipient’s access to 

Safeguards Information is necessary in the performance 

of official, contractual, licensee, applicant, or certificate 

holder employment.’’

The definition of the term ‘‘need to know’’ is amended to 

make clear that the term applies to licensees, applicants, 

certificate holders, and participants in adjudications. 

In an adjudication, ‘‘need to know’’ means a determination 

by the originator of the information that (a) the information 

is necessary to enable the proposed recipient to proffer 

and/or adjudicate a specific contention in that proceeding, 

and (b) the proposed recipient of the specific Safeguards 

Information possesses demonstrable knowledge, skill, 

training, or education to effectively utilize the specific 

Safeguards Information in the proceeding. Where the information is in the possession of the originator and the 

NRC staff (dual possession), whether in its original form 

or incorporated into another document by the recipient, 

the NRC staff makes the determination. In the event of a 

dispute regarding ‘‘need to know’’ determination, the presiding officer of the proceeding makes the determination.

The definition of ‘‘need to know’’ has two parts to add specificity to the definition. The first part defines ‘‘need to 

know’’ determinations outside of adjudications. The second part defines ‘‘need to know’’ determinations in the 

context of adjudications. 

73.2 Cont ............. The definition of ‘‘Safeguards Information’’ is amended to 

add the phrases ‘‘licensee’s or applicant’s,’’ ‘‘the physical 

protection of,’’ and ‘‘within the scope of Section 147 of the 

Atomic Energy Act of 1954, as amended,’’ to change the 

phrase ‘‘radiological sabotage’’ to ‘‘sabotage,’’ and to remove the word ‘‘otherwise.’’

The definition of ‘‘SGI’’ is changed in order to provide clarification that SGI is information that identifies a ‘‘licensee’s 

or applicant’s’’ detailed control and accounting procedures 

for the physical protection of special nuclear material and 

includes only information ‘‘within the scope of Section 147 

of the Atomic Energy Act of 1954, as amended. 

The definition of ‘‘trustworthiness and reliability’’ has been 

revised by deleting the original proposed definition and 

substituting ‘‘Trustworthiness and reliability are characteristics of an individual considered dependable in judgment, 

character, and performance, such that disclosure of Safeguards Information to that individual does not constitute 

an unreasonable risk to the public health and safety or 

common defense and security.’’

The definition of ‘‘trustworthiness and reliability’’ is changed 

in response to comments that it was not sufficiently clear. 


rwilkins on PROD1PC63 with PROPOSAL_3
64038 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.8(b) .................. Section (b) is updated to read: ‘‘The approved information 

collection requirements contained in this part appear in 

§§ 73.5, 73.20, 73.21, 73.22, 73.23, 73.24, 73.25, 73.26, 

73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 73.56, 

73,57, 73.60, 73.67, 73.70, 73.71, 73.72, 73.73, 73.74, 

and appendices B, C, and G.’’

This paragraph is updated to include all of the approved information collection requirements contained in part 73. 

73.21(a)(1)(i) ........ This paragraph is reorganized and edited to read: ‘‘Establish, implement, and maintain an information protection 

system that includes the applicable measures for Safeguards Information specified in § 73.22 related to: Power 

reactors; a formula quantity of strategic special nuclear 

material; transportation of or delivery to a carrier for transportation of a formula quantity of strategic special nuclear 

material or more than 100 grams of irradiated reactor fuel; 

uranium hexafluoride production facilities; fuel fabrication 

facilities; uranium enrichment facilities; independent spent 

fuel storage installations; and geologic repository operations areas.’’

This paragraph is changed in response to comments to 

more clearly set out which facilities, materials, and licensees are subject to the requirements of § 73.22. The paragraph is reorganized for clarity. 

73.21(a)(1)(ii) ....... This paragraph is reorganized and edited to read: ‘‘Establish, implement, and maintain an information protection 

system that includes the applicable measures for Safeguards Information specified in § 73.23 related to: Panoramic and underwater irradiators that possess greater 

than 370 TBq (10,000 Ci) of byproduct material in the 

form of sealed sources; manufacturers and distributors of 

items containing source, byproduct, or special nuclear material in greater than or equal to Category 2 quantities of 

concern; research and test reactors that possess special 

nuclear material of moderate strategic significance or special nuclear material of low strategic significance; and 

transportation of greater than or equal to Category 2 

quantities of concern.’’

This subsection is changed in response to comments to 

more clearly set out which facilities, materials, and licensees are subject to the requirements of § 73.23. The paragraph is reorganized for clarity. This paragraph has been 

drafted to be consistent with orders previously issued by 

the Commission, e.g., Panoramic and Underwater 

Irradiator Security Orders, RAMQC Transportation Orders, 

Manufacturer and Distributor Security Orders, Increased 

Controls Orders. 

73.21(a)(2) ........... The word ‘‘Federal’’ is added to the list of law enforcement 

officials and the cross reference is changed from 

‘‘§ 73.21(a)(i)’’ to ‘‘§ 73.21(a)(1).’’ The word ‘‘deemed’’ is 

changed to ‘‘presumed.’’

In response to a comment, this paragraph is amended to 

provide that information protection procedures used by 

Federal police are presumed to meet the general performance requirement of § 73.21(a)(1). The word ‘‘deemed’’ is 

changed to ‘‘presumed’’ to be consistent with 

§ 73.21(b)(1), which preserves the Commission’s authority 

to impose different SGI handling requirements on any person who produces, receives, or acquires SGI. The crossreference to § 73.21(a)(i) is changed to § 73.21(a)(1) to 

correct a typographical error. 

73.21(b)(1) ........... The phrase ‘‘Safeguards Information handling requirements’’

is changed to ‘‘Safeguards Information protection requirements.’’ The phrase ‘‘or in addition to’’ is added. The 

cross-reference to §§ 73.21(a)(1) and (2) are deleted and 

reference to ‘‘this part’’ is substituted.

This change clarifies that the Commission may impose information protection requirements different from or in addition to those specified in part 73 on any person who produces, receives, or acquires SGI, provided the Commission’s action is within the scope of its authority under Section 147 of the Atomic Energy Act of 1954, as amended. 

73.21(b)(2) ........... A new section is added: ‘‘The Commission may require, by 

regulation or order, that information within the scope of 

Section 147 of the Atomic Energy Act of 1954, as amended related to facilities or materials not specifically described in §§ 73.21, 73.22 or 73.23 be protected under 

this part.’’

This paragraph is added to indicate that the Commission 

may impose the requirements of part 73 on facilities or 

materials not specifically described in §§ 73.21, 73.22, or 

73.23, provided the Commission’s action is within the 

scope of Section 147 of the Atomic Energy Act of 1954, 

as amended. 

73.22 .................... The phrase ‘‘licensees authorized to possess’’ is deleted. 

The phrase ‘‘and fuel cycle facilities’’ is deleted and replaced with ‘‘uranium hexafluoride production facilities, 

fuel fabrication facilities, and uranium enrichment facilities; 

independent spent fuel storage installations; and geologic 

repository operations areas.’’

The introductory text to § 73.22 is changed to conform with 

the changes in § 73.21(a)(1)(i). The change specifically 

identifies which fuel cycle facilities are subject to the requirements of § 73.22. 

73.22(a) ................ The phrase ‘‘non-public’’ is added. The phrase ‘‘protective 

measures, interim compensatory measures, additional security measures, and the following as applicable’’ is deleted.

The first change clarifies that only non-public security-related 

requirements are to be protected as SGI. The second 

change more closely tracks the current rule language in 

§ 73.21(b)(1). 

73.22(a)(1) ........... The section is revised to read ‘‘Information not classified as 

Restricted Data or National Security Information related to 

physical protection, including: ’’

References to specific licensees are eliminated. The original 

proposed rule language inappropriately limited the scope 

of the section. The revision clarifies the scope of the revised proposed rule and simplifies the rule text. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64039 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.22(a)(1)(i) ........ The phrase ‘‘All portions of’’ is deleted ................................... This paragraph, which, as originally proposed, would have 

protected ‘‘all portions’’ of a composite physical security 

plan for a site, is amended in response to comments that 

such plans may contain a mix of safeguards and non-SGI. 

The NRC acknowledges that there may be some non-SGI 

in various licensee security plans and accordingly has deleted the phrase ‘‘all portions’’ in the revised proposed rule 

text. 

73.22(a)(1)(ii) ....... The phrase ‘‘not easily discernible by members of the public’’ is added.The phrase ‘‘not easily discernible to members of the public’’

is added to reflect that aspects of a licensee’s or applicant’s physical security system that can be readily observed by members of the public are not necessarily considered SGI. 

73.22(a)(1)(iii) ...... The phrases ‘‘for security equipment’’ and ‘‘not easily discernible by members of the public’’ are added.The phrase ‘‘for security equipment’’ is added in response to 

comments requesting clarification of which emergency 

power sources are referred to in the rule. The phrase ‘‘not 

easily discernible to members of the public’’ is added to 

reflect that aspects of a licensee’s or applicant’s alarm 

system layouts that can be readily observed by members 

of the public are not necessarily considered SGI. 

73.22(a)(1)(iv) ...... The phrase ‘‘Written physical security orders and procedures 

for members of the security organization, duress codes, 

and patrol schedules’’ is revised to read ‘‘Physical security 

orders and procedures issued by the licensee for members of the security organization detailing duress codes, 

patrol routes and schedules, or responses to security contingency events’’; 

This paragraph, which, as originally proposed, covered only 

written physical security orders and procedures, is amended so that it would not be limited to written security orders 

and procedures. The paragraph is also changed to clarify 

that it would apply to physical security orders and procedures written by the licensee. In addition, the revised proposed rule replaces ‘‘patrol routes’’ with ‘‘patrol routes and 

schedules.’’ The phrase ‘‘safeguards or security emergencies’’ is changed to ‘‘security contingency events’’ to 

emphasize that the requirement is security-related, and to 

maintain consistency with other regulatory provisions. 

73.22(a)(1)(v) ....... The phrase ‘‘On-site and off-site communications systems in 

regard to their use for security purposes’’ is revised to 

read ‘‘Site-specific design features of plant security communications systems.’’

This paragraph, which, as originally proposed, would have 

protected ‘‘[o]n-site and off-site communications systems 

in regard to their use for security purposes,’’ is amended 

in the revised proposed rule to read ‘‘[s]ite-specific design 

features of plant security communications systems,’’ in response to a comment that licensees cannot and should 

not control information describing off-site communications 

systems. The revised proposed rule would require protection only of information regarding on-site communications 

systems. 

73.22(a)(1)(vii) ..... The phrase ‘‘physical security plans, safeguards contingency 

plans’’ is changed to ‘‘security plans, contingency measures.’’

This change uses broader language so that SGI protection 

is not limited to formal security plans or contingency 

plans. Not all licensees will have formally designated 

plans. The goal is to protect information about the physical security system and security procedures, whether or 

not they are contained in a single written plan. 

73.22(a)(1)(viii) ..... The phrase ‘‘All portions of’’ is deleted. The phrase ‘‘safeguards contingency plan’’ is changed to ‘‘safeguards contingency plan/measures.’’This paragraph, which, as proposed, would have protected 

‘‘all portions’’ of a composite safeguards contingency plan, 

is amended in response to comments that such plans may 

contain a mix of safeguards and non-SGI. The NRC acknowledges that there may be some non-SGI in various licensee security plans and accordingly deleted the phrase 

‘‘all potions.’’ The revision also protects information about 

contingency measures not contained in a formal contingency plan. 

73.22(a)(1)(ix) ...... The phrase ‘‘All portions of’’ is deleted. The phrase ‘‘guard 

qualification and training plan’’ is changed to ‘‘guard qualification and training plan/measures.’’

This paragraph, which, as originally proposed, would have 

protected ‘‘all portions’’ of a composite guard qualification 

and training plan, is amended in response to comments 

that such plans may contain a mix of safeguards and nonSGI. The NRC acknowledges that there may be some 

non-SGI in various licensee security plans and accordingly 

deleted the phrase ‘‘all portions.’’ The revised proposed 

rule would also protect information about guard training 

not contained in a formal training and qualification plan. 


rwilkins on PROD1PC63 with PROPOSAL_3
64040 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.22(a)(1)(x) ....... The phrase ‘‘Information concerning onsite or offsite response forces, including size, identity, armament, and arrival times of such forces committed to respond to security 

emergencies’’ is revised to read ‘‘Information relating to 

onsite or offsite response forces, including size, armament 

of response forces, and arrival times of such forces committed to respond to security contingency events;’’

This paragraph is reworded slightly for clarification. The 

phrase ‘‘safeguards or security emergencies’’ is changed 

to ‘‘security contingency events’’ to emphasize that the requirement is security-related, and to maintain consistency 

with other regulatory provisions. 

73.22(a)(1)(xi) ...... The phrase ‘‘The elements and characteristics of the Design 

Basis Threat in a level of detail greater than as specified 

in § 73.1 or other information that would disclose the Design Basis Threat, including the tactics and capabilities required to defend against that threat’’ is revised to read: 

‘‘The Adversary Characteristics Document or other implementing guidance associated with the Design Basis 

Threat in § 73.1;’’

As originally proposed, this section referred generically to 

‘‘information that would disclose the details of the Design 

Basis Threat.’’ The section has been reworded to explicitly 

identify the information that would be protected under the 

revised proposed rule. The Design Basis Threat is set out 

in its entirety in § 73.1. The information protected is the 

Adversary Characteristics Document and other Design 

Basis Threat implementing guidance, which contain detailed descriptions of the operational and tactical capabilities of the hypothetical adversary force more generally described in the Design Basis Threat rule. 

73.22(a)(1)(xii) ..... The phrase ‘‘related to the physical protection’’ at the beginning of the original proposed rule text is changed to ‘‘revealing site-specific details.’’ The phrase ‘‘unauthorized 

disclosure of such information’’ is changed to ‘‘unauthorized disclosure of such analyses, procedures, scenarios, 

or other information.’’ In addition, the phrase ‘‘emergency 

planning’’ is deleted and is replaced with ‘‘security-related.’’ The phrase ‘‘material or a facility’’ at the end of the 

original proposed rule text is changed to ‘‘source, byproduct, or special nuclear material.’’

This paragraph is revised in response to comments that the 

section was too broadly-worded as proposed. The revision 

clarifies that the analyses, procedures, scenarios, and 

other information described in this section are considered 

SGI only if they reveal ‘‘site-specific details’’ about the 

physical protection of the facility or source, byproduct, or 

special nuclear material. The substitution of ‘‘security-related’’ for ‘‘emergency planning’’ is made to clarify that 

emergency preparedness plans should remain publicly 

available, unless a specific emergency preparedness procedure contains information which could potentially need 

to be protected as SGI. 

73.22(a)(1)(xiii) ..... This paragraph is deleted ....................................................... This paragraph is deleted as unnecessary. The information 

this section would have protected is protected under 

§ 73.22(a)(1)(xi). 

73.22(a)(2) ........... The word ‘‘otherwise’’ and the phrase ‘‘protection of’’ are deleted.The words ‘‘protection of’’ are deleted to correct a grammatical error in the original proposed rule. The word ‘‘otherwise’’ is deleted to simplify the revised proposed rule text. 

73.22(a)(2)(i) ........ The phrase ‘‘All portions of the composite transportation 

physical security plan’’ is changed to ‘‘The composite 

physical security plan for transportation;’’

This paragraph, which, as proposed, would have protected 

‘‘all portions’’ of a composite physical security plan for 

transportation, is amended in response to comments that 

such plans may contain a mix of SGI and non-SGI. The 

NRC acknowledges that there may be some non-SGI in 

various licensee security plans and accordingly deleted 

the phrase ‘‘all portions.’’

73.22(a)(2)(ii) ....... The section is revised to read ‘‘Schedules and itineraries for 

specific shipments of source material, byproduct material, 

high-level nuclear waste, or irradiated reactor fuel. Schedules for shipments of source material, byproduct material, 

high-level nuclear waste, or irradiated reactor fuel are no 

longer controlled as Safeguards Information 10 days after 

the last shipment of a current series’’; 

This section has been changed to more closely track the relevant statutory language in Section 147 of the AEA, and 

to reflect the NRC’s practice of decontrolling shipment 

schedules and itineraries after completion of the shipment. 

73.22(a)(2)(vi) ...... The phrase ‘‘safeguards or security emergencies’’ is 

changed to ‘‘security contingency events.’’

This paragraph is reworded slightly for clarification. The 

phrase ‘‘safeguards or security emergencies’’ is changed 

to ‘‘security contingency events’’ to emphasize that the requirement is security-related, and to maintain consistency 

with other regulatory provisions. 

73.22(a)(2)(vii) ..... The phrase ‘‘radiological sabotage’’ is changed to ‘‘sabotage.’’ The phrase ‘‘irradiated reactor fuel’’ is added.The word ‘‘radiological’’ is deleted because the definition of 

SGI relates broadly to sabotage, not only ‘‘radiological 

sabotage.’’ The addition of ‘‘irradiated reactor fuel’’ makes 

the terminology of this paragraph consistent with that used 

elsewhere in 10 CFR part 73. 

73.22(a)(2)(viii) ..... The phrase ‘‘and other information’’ is added. The phrase 

‘‘unauthorized disclosure of such information’’ is changed 

to ‘‘unauthorized disclosure of such analyses, procedures, 

scenarios, or other information.’’ The phrase ‘‘such material’’ at the end of the original proposed rule text is 

changed to ‘‘source, byproduct, or special nuclear material.’’

This paragraph is revised in response to comments that the 

section was too broadly worded as proposed. The revision 

clarifies that the analyses, procedures, scenarios, and 

other information described in this section are considered 

SGI only if they reveal site-specific details about the physical protection of the facility or source, byproduct, or special nuclear material. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64041 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.22(a)(3) ........... The section is revised to read ‘‘Information not classified as 

National Security Information or Restricted Data pertaining 

to safeguards and security inspections and reports, including:’’

References to specific licensees are eliminated. The original 

proposed rule language inappropriately limited the scope 

of the section. The revisions clarify the scope of the revised proposed rule and simplify the rule text. 

73.22(a)(3)(ii) ....... The phrase ‘‘after the investigation has been completed’’ is 

changed to ‘‘after corrective actions have been completed.’’

This paragraph is changed to reflect that NRC will release 

general investigation reports after corrective action has 

been taken, unless the information is properly withheld 

under the Freedom of Information Act. Reports of investigation will not be released before corrective action is 

taken because the reports could be used to exploit security deficiencies. 

73.22(a)(4) ........... The word ‘‘paragraph’’ is changed to ‘‘section.’’ The words 

‘‘as defined’’ are changed to ‘‘as set forth.’’

This paragraph is changed to correct a grammatical error. 

73.22(a)(5) ........... The phrase ‘‘Other information’’ is changed to ‘‘Other information within the scope of Section 147 of the Atomic Energy Act of 1954, as amended.’’ The phrase ‘‘material or a 

facility’’ at the end of the original proposed rule text is 

changed to ‘‘source, byproduct, or special nuclear material 

or a facility.’’

This paragraph is changed in response to comments that it 

was too broadly-worded as proposed. The change makes 

clear that the Commission retains the authority to issue 

further orders or regulations requiring the protection of 

categories of information not described in the regulations, 

provided the information still falls within the cope of Section 147 of the Atomic Energy Act of 1954, as amended. 

73.22(b) ................ This paragraph has been revised and reorganized in the revised proposed rule for clarity. However, the conditions of 

access to SGI—established need to know, FBI criminal 

history check, and background check to determine trustworthiness and reliability—have not changed. The background check to determine trustworthiness and reliability 

contained in § 73.22(b)(1)(i)(A) of the original proposed 

rule is in § 73.22(b)(2) of the revised proposed rule. The 

exemptions from criminal history and background checks 

contained in § 73.22(b)(1)(i)–(vi) are cross-referenced in 

§ 73.22(b)(3) of revised proposed rule. The specific exemptions are listed in § 73.59.

The structure of this paragraph has been revised for clarification. These revisions are intended to make clear that 

no one would have access to SGI without first establishing 

a ‘‘need to know’’. They are intended to make clear that 

unless an individual is exempt by virtue of his or her occupational status all individuals would be required to undergo an FBI criminal history check and a background check 

to determine trustworthiness and reliability before obtaining access to SGI. 

73.22(b)(1) ........... This section has been revised and simplified. It now reads in 

its entirety: ‘‘Except as the Commission may otherwise authorize, no person may have access to Safeguards Information unless the person has an established ‘‘need to 

know’’ for the information and has undergone a Federal 

Bureau of Investigation criminal history check using the 

procedures set forth in § 73.57.’’

This paragraph has been revised to require an established 

‘‘need to know’’ and an FBI criminal history check before 

access to SGI. There would be no exception to the ‘need 

to know’ requirement. All exemptions to the FBI criminal 

history and background check requirements are now contained in § 73.22(b)(3)(i)–(vii). 

73.22(b)(2) ........... This section now reads: ‘‘In addition, a person to be granted 

access to SGI must be trustworthy and reliable, based on 

a background check or other means approved by the 

Commission.’’

The paragraph has been revised to clarify that individuals 

are subject to a background check before they must be 

granted access to SGI. The determination that an individual is trustworthy and reliable would be based upon a 

background check. The background check for trustworthiness and reliability would be in addition the FBI 

criminal history check. The term ‘‘background check’’ is 

defined in §73.2.

73.22(b)(3) ........... This section provides that §73.59 lists the categories of individuals who are exempt from the requirements of 

§ 73.22(b)(1) & (2) by virtue of their occupational status.

This paragraph provides that § 73.59 lists the categories of 

individuals who would be exempt from a FBI criminal history check requirement in § 73.22(b)(1) and the background check to determine trustworthiness and reliability 

requirements in § 73.22(b)(2) by virtue of their occupation 

status. These individuals are not exempt from the ‘‘need 

to know’’ requirement. 

73.22(b)(4) ........... This section has been added. It reads: ‘‘For persons participating in an NRC adjudicatory proceeding other than 

those identified in § 73.9, the ‘‘need to know’’ determination shall be made by the originator of the Safeguards Information upon receipt of a request for access to the 

Safeguards Information. Where the information is in the 

possession of the originator and the NRC staff (dual possession), whether in its original form or incorporated into 

another document by the recipient, the NRC staff makes 

the determination. In the event of a dispute regarding the 

‘‘need to know’’ determination, the presiding officer of the 

proceeding shall determine whether the ‘‘need to know’’

findings in § 73.2 can be made.’’

This paragraph was added to clarify when the need to know 

determination would be made and who would determine 

whether a participant in an NRC adjudicatory proceeding 

has a ‘‘need to know.’’


rwilkins on PROD1PC63 with PROPOSAL_3
64042 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.22(b)(5) ........... This paragraph was § 73.22(b)(3) in the original proposed 

rule. The phrase ‘‘except as set forth in paragraph (b)(1)’’

has been deleted and replaced with ‘‘except as set forth in 

this section.’’

The change of the phrase ‘‘as set forth in paragraph (b)(1)’’

to ‘‘as set in this section’’ results from the restructuring of 

§ 73.22(b). 

73.22(c)(1) ........... The phrase ‘‘Safeguards Information within alarm stations, 

continuously manned guard posts or ready rooms need 

not be locked in a locked security storage container’’ is 

changed to ‘‘Safeguards Information within alarm stations, 

or rooms continuously occupied by authorized individuals 

need not be stored in a locked security storage container.’’

This paragraph is revised to make clear that SGI could be 

left outside of a locked security storage container if attended by individuals authorized access to SGI. The original proposed rule could have been interpreted to allow unauthorized persons access to SGI. 

73.22(c)(2) ........... The phrase ‘‘so as to prevent disclosure to an unauthorized 

individual not authorized access to Safeguards Information’’ is changed to ‘‘so as to prevent disclosure to an individual not authorized access to Safeguards Information.’’

The word ‘‘may’’ is changed to ‘‘shall.’’

The word ‘‘unauthorized’’ is removed because it was redundant. The word ‘‘shall’’ is replacing ‘‘may’’ because it is a 

requirement that locked security storage containers do not 

identify contents as SGI. 

73.22(d)(1) ........... The phrase ‘‘must be marked ‘Safeguards Information’ ’’ is 

changed to ‘‘must be marked to indicate the presence of 

such information.’’ The phrase ‘‘to indicate the presence of 

protected information’’ is deleted from the end of the first 

sentence. The word ‘‘each’’ in the last sentence is 

changed to ‘‘the.’’

This paragraph is revised in response to comments that the 

proposed document-marking language was too prescriptive. The changes are intended to allow more flexibility in 

document marking. The change from ‘‘each’’ to ‘‘the’’ is to 

conform this paragraph with § 73.23(d)(1). 

73.22(d)(1)(iii) ...... The word ‘‘would’’ is changed to ‘‘will’’ ................................... The word ‘‘would’’ is changed to ‘‘will.’’

73.22(d)(2) ........... The phrase ‘‘In addition to the ‘Safeguards Information’

markings’’ is changed to ‘‘In addition to the markings.’’

The phrase ‘‘transmittal letters or memoranda’’ is changed 

to ‘‘any transmittal letters or memoranda to or from the 

NRC,’’ and ‘‘e.g.’’ is changed to ‘‘i.e.’’

This paragraph is revised in response to comments that the 

proposed language was too prescriptive. The changes are 

intended to allow more flexibility in document marking. 

73.22(d)(3) ........... The phrase ‘‘Portion marking of documents or other information is required for correspondence to and from the NRC’’

is changed to ‘‘Portion marking is required only for correspondence to and from the NRC (i.e., cover letters, but 

not attachments) that contains Safeguards Information.’’

The word ‘‘transmittal’’ is added before ‘‘document.’’

This paragraph is revised in response to comments seeking 

clarification of which documents require portion marking. 

The intent of the revised section is to require portion 

marking only for cover letters and similar documents that 

transmit correspondence to or from the NRC. Attachments 

to the transmittal document do not need to be portion 

marked. This requirement would enable the NRC to better 

identify some of its security-related regulatory activities to 

the public because it will be administratively easier to redact and disclose portion-marked transmittal documents. 

73.22(d)(4) ........... This paragraph as proposed is deleted and substituted with 

a revision of the proposed § 73.22(d)(5). The revised proposed rule § 73.22(d)(4) reads ‘‘Marking of documents 

containing or transmitting Safeguards Information shall, at 

a minimum include the words ‘Safeguards Information’ to 

ensure identification of protected information for the protection of facilities and material covered by 10 CFR 

73.22.’’

This paragraph is deleted from the revised proposed rule in 

response to comments opposing the requirement to remark SGI that existed before the effective date of a final 

rule. 

73.22(d)(5) ........... The proposed paragraph was revised and moved to 

§ 73.22(d)(4). 

The paragraph is reworded and renumbered as § 73.22(d)(4) 

in the revised proposed rule. The revision requires that future document markings include the words ‘‘Safeguards 

Information’’ ensure easy identification and a level of consistency among those required to mark such information. 

73.22(e) ................ The phrase ‘‘If Safeguards Information is reproduced on a 

digital copier that would retain Safeguards Information in 

its memory, then the copier may not be connected to a 

network’’ is changed to ‘‘Equipment used to reproduce 

Safeguards Information must be evaluated to ensure that 

unauthorized individuals cannot access Safeguards Information (e.g., unauthorized individuals cannot access SGI 

by gaining access to retained memory or network 

connectivity).’’

This paragraph is revised to provide more general instructions on reproduction of SGI. The original proposed rule 

limited the instructions to digital copiers. The revision applies a performance-based standard to any equipment 

used to reproduce SGI. 

73.22(f)(2) ............ The phrase ‘‘nationwide overnight’’ is deleted ........................ This paragraph is revised so that commercial delivery companies transporting SGI do not have to provide nationwide 

overnight service. SGI may be transported by trusted, 

local carriers, so long as the carrier has computer tracking 

capabilities. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64043 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.22(f)(3) ............ This paragraph has been revised to read: ‘‘Except under 

emergency or extraordinary conditions, Safeguards Information shall be transmitted outside an authorized place of 

use or storage only by (a) NRC approved secure electronic devices, such as facsimiles or telephone devices, 

provided that transmitters and receivers implement processes that will provide high assurance that Safeguards Information is protected before and after the transmission or 

(b) electronic mail through the internet, provided that (i) 

the information is encrypted by the NRC-approved 

encryption modules and algorithms; (ii) the information is 

produced by a self contained secure automatic data process system; and (iii) transmitters and receivers implement 

the information handling processes that will provide high 

assurance that Safeguards Information is protected before 

and after transmission. Physical security events required 

to be reported pursuant to § 73.71 are considered to be 

extraordinary conditions.’’

The paragraph has been revised and updated to more accurately reflect information security requirements. 

73.22(g)(1) ........... The word ‘‘may’’ is changed to ‘‘shall’’ in the third sentence. The phrase ‘‘shall be’’ is replacing ‘‘may be’’ to clarify that 

stand-alone computers or computer systems are required 

not to be physically or in any other way connected to a 

network accessible by users who are not authorized access to SGI. 

73.22(g)(3) ........... The word ‘‘automated’’ is deleted ........................................... The word ‘‘automated’’ unnecessarily appeared in the original proposed rule and has been deleted. 

73.22(i) ................. The phrase ‘‘tearing into small pieces’’ is deleted from the 

second sentence. The third sentence is change from 

‘‘Piece sizes one half inch or smaller composed of several 

pages or documents and thoroughly mixed would be considered completely destroyed’’ to ‘‘Piece sizes no wider 

than one quarter inch composed of several pages or documents and thoroughly mixed are considered completely 

destroyed.’’ The word ‘‘must’’ is changed to ‘‘shall.’’

This paragraph is revised to eliminate redundant language 

and to clarify that document destruction results in piece 

sizes no wider than one-quarter inch, thoroughly mixed. 

Changing the word ‘‘must’’ to ‘‘shall’’ conforms this paragraph with § 73.23(i). 

73.23 .................... The first sentence is deleted and replaced with ‘‘This section 

contains specific requirements for the protection of Safeguards Information related to panoramic and underwater 

irradiators that possess greater than 370 TBq (10,000 Ci) 

of byproduct material in the form of sealed sources; manufactures and distributors of items containing source, byproduct, or special nuclear material in greater than or 

equal to Category 2 quantities of concern; transportation 

of more than 1000 TBq (27,000 Ci) but less than or equal 

to 100 grams of spent nuclear fuel; research and test reactors that possess special nuclear material of moderate 

strategic significance or special nuclear material of low 

strategic significance; and transportation of greater than or 

equal to Category 2 quantities of concern.’’ In the second 

sentence, the word ‘‘protection’’ is replaced by ‘‘handling.’’

This section is changed in response to comments requesting 

that the rule more clearly set out which facilities, materials, and licensees and subject to the requirements of 

§ 73.23. It has been drafted to be consistent with orders 

previously issued by the Commission, e.g., Panoramic 

and Underwear Irradiator Security Orders, RAMQC Transportation Orders, Manufacturer and Distributor Orders, Increased Control Orders. The word ‘‘handling’’ is used to 

conform the sentence with the paragraph. 

73.23(a) ................ The phrase ‘‘non-public’’ is added. The phrase ‘‘Safeguards 

Information’’ is changed to ‘‘Safeguards Information designated as Safeguards Information-Modified Handling.’’

The words ‘‘non-public’’ are added for clarification. The 

phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information designated as Safeguards InformationModified Handling’’ to better distinguish SGI–M, needing 

modified protection, from SGI for reactors and fuel cycle 

facilities that require a higher level of protection. 

73.23(a)(1). .......... This section is revised to read ‘‘Information not classified as 

Restricted Data or National Security Information related to 

physical protection, including:’’

References to specific licensees are eliminated. The original 

proposed rule language improperly limited the scope of 

the section. The revision clarify the scope of the revised 

proposed rule and simplify the rule text. 

73.23(a)(1)(i) ........ The phrase ‘‘All portions of’’ is deleted ................................... This paragraph, which, as originally proposed, would have 

protected ‘‘all portions’’ of a composite physical security 

plan, is amended in response to comments that such 

plans may contain a mix of SGI and non-SGI. The NRC 

acknowledges that there may be some non-SGI in various 

licensee security plans and accordingly deleted the phrase 

‘‘all portions’’ in the revised proposed rule. 

73.23(a)(1)(ii) ....... The phrase ‘‘not easily discernible by members of the public’’ is added.The phrase ‘‘not easily discernible to members of the public’’

is added to reflect that aspects of a licensee’s or applicant’s alarm system layouts that can be readily observed 

by members of the public are not necessarily considered 

SGI. 


rwilkins on PROD1PC63 with PROPOSAL_3
64044 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.23(a)(1)(iii) ...... The phrases ‘‘for security equipment’’ and ‘‘not easily discernible by members of the public’’ are added.The phrase ‘‘for security equipment’’ is added in response to 

comments requesting clarification of which emergency 

power sources are referred to in the rule. The phrase ‘‘not 

easily discernible to members of the public’’ is added to 

reflect that aspects of a licensee’s or applicant’s alarm 

system layouts that can be readily observed by members 

of the public would not necessarily be considered SGI. 

73.23(a)(1)(iv) ...... The phrase ‘‘Written physical security orders and procedures 

for members of the security organization, duress codes, 

and patrol schedules’’ is revised to read ‘‘Physical security 

orders and procedures issued by the licensee for members of the security organization detailing duress codes, 

patrol routes and schedules, or responses to security contingency events’’; 

This paragraph is revised to clarify that it applies to orders 

and procedures issued by the licensee regarding certain 

security activities. 

73.23(a)(1)(v) ....... The phrase ‘‘On-site and off-site communications systems in 

regard to their use for security purposes’’ is revised to 

read ‘‘Site-specific design features of plant security communications systems’’; 

This paragraph is revised in response to comments that the 

original proposed rule was overly broad. This paragraph 

now requires protection of site-specific design features of 

facility communications systems. 

73.23(a)(1)(vii) ..... The words ‘‘The composite’’ are added at the beginning of 

the section. The phrase ‘‘guard qualification and training 

procedures’’ is changed to ‘‘guard qualification and training plan/measures.’’

This paragraph is revised to more closely track the language 

in § 73.22(a)(1)(ix). Also, the revision protects information 

about guard training not contained in a formal training and 

qualification plan. 

73.23(a)(1)(ix) ...... The phrase ‘‘Information concerning offsite response forces, 

including size, identity, armament, and arrival times of 

such forces committed to respond to safeguards or security emergencies’’ is revised to read ‘‘Information relating 

to onsite or offsite response forces, including size, armament of response forces, and arrival times of such forces 

committed to respond to security contingency events; 

and’’

The paragraph is reworded slightly for clarification. The 

phrase ‘‘safeguards or security emergencies’’ is changed 

to ‘‘security contingency events’’ to emphasize that the requirement is security-related, and to maintain consistency 

with other regulatory provisions. 

73.23(a)(1)(x) ....... The phrase ‘‘related to the physical protection of’’ at the beginning of the original proposed rule text is changed to 

‘‘revealing site-specific details of.’’ The phrase ‘‘unauthorized disclosure of such information’’ is changed to ‘‘unauthorized disclosure of such analyses, procedures, scenarios, and information.’’ In addition, the phrase ‘‘emergency planning’’ is deleted and is replaced with ‘‘securityrelated.’’ The phrase ‘‘material or a facility’’ at the end of 

the original proposed rule text is changed to ‘‘source, byproduct, or special nuclear material’’.

This paragraph is revised in response to comments that the 

section was too broadly worded as proposed. The revision 

clarifies that the analyses, procedures, scenarios, and 

other information described in this section are considered 

SGI only if they reveal ‘‘site-specific details’’ about the 

physical protection of the facility or source, byproduct, or 

special nuclear material’’. The substitution of ‘‘security-related’’ for ‘‘emergency planning’’ is made to clarify that 

emergency preparedness plans should remain publicly 

available, unless a specific emergency preparedness procedure contains information which could potentially need 

to be protected as SGI. 

73.23(a)(2) ........... This section is revised to read ‘‘Information not classified as 

Restricted Data or National Information related to the 

physical protection of shipments of more than 1000 Tbq 

(27,000 Ci) but less than or equal to 100 grams of spent 

nuclear fuel, source material and byproduct material in 

Category 2 quantities of concern, and special nuclear material in less than a formula quantity (except for those materials covered under § 73.22), including:’’

The language is revised to more precisely define which 

types of information would be protected under the revised 

proposed rule. The word ‘‘otherwise’’ is removed to simplify the revised proposed rule text. 

73.23(a)(2)(i) ........ The phrase ‘‘security features of a transportation physical 

security plan’’ is changed to ‘‘transportation security measures, including physical security plans and procedures, immobilization devices, and escort requirements, more detailed than NRC regulations.’’ The phrase ‘‘Scheduling and 

itinerary information may be shared with others on a 

‘‘need to know’’ basis and is not designated as Safeguards Information-Modified Handling’’ has been deleted 

from this paragraph of the revised proposed rule.

This paragraph is revised so that it more accurately describes the type of information that would be protected. 

The original proposed rule would have required protection 

of a ‘‘transportation physical security plan,’’ but not all licensees subject to this section will have such a plan. The 

revised language is broader and would cover ‘‘information 

regarding transportation security measures, including 

physical security plans and procedures * * *’’


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64045 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.23(a)(2)(ii) ....... The text that appeared in this paragraph of the original proposed rule is renumbered to § 73.23(a)(2)(iii). In its place, 

the following paragraph has been added: ‘‘Scheduling and 

itinerary information for shipments (scheduling and 

itinerary information for shipments that are inherently selfdisclosing may be decontrolled after shipment departure. 

Scheduling and itinerary information for shipments that are 

not inherently self-disclosing may be decontrolled 2 days 

after the shipment is completed. Scheduling and itinerary 

information used for the purpose of preplanning, coordination, and advance notification may be shared with others 

on a ‘‘need to know’’ basis and need not be designated 

Safeguards Information-Modified Handling);’’

This paragraph has been added to include protection of information associated with transportation of radioactive materials in greater than or equal to Category 1 quantities of 

concern. 

73.23(a)(2)(iii) ...... Due to renumbering, this paragraph now reads: ‘‘Arrangements with and capabilities of local police response 

forces, and locations of safe havens;’’ The paragraph 

reading: ‘‘Limitations of communications during transport,’’

which appeared in this paragraph of the original proposed 

rule has been deleted.

This paragraph was renumbered from (ii) to (iii). 

73.23(a)(2)(iv) ...... In the revised proposed rule this paragraph reads: ‘‘Details 

of alarm and communication systems, communication procedures, and duress codes;’’

This paragraph has been added to include protection of information associated with the transportation of radioactive 

material in greater than or equal to Category 1 quantities 

of concern. 

73.23(a)(2)(v) ....... The phrase ‘‘safeguards or security emergencies’’ is 

changed to ‘‘security contingency events; and’’

This paragraph, which as (iv) in the original proposed rule, is 

reworded slightly for clarification in the revised proposed 

rule. The phrase ‘‘safeguards or security emergencies’’ is 

changed to ‘‘security contingency events’’ to emphasize 

that the requirement is security-related, and to maintain 

consistency with other regulatory provisions. 

73.23(a)(2)(vi) ...... The phrase ‘‘emergency planning’’ is deleted and is replaced 

with ‘‘security-related.’’ The phrase ‘‘and other information’’ is added after ‘‘security-related procedures or scenarios.’’ The phrase ‘‘unauthorized disclosure of such information’’ is changed to ‘‘unauthorized disclosure of such 

analyses, procedures, scenarios, or other information.’’

The phrase ‘‘sabotage of such material’’ at the end of the 

original proposed rule text is changed to ‘‘sabotage of 

source, byproduct, or special nuclear material.’’

This paragraph is revised in response to comments that the 

section was too broadly worded as proposed. The revision 

clarifies that the analyses, procedures, scenarios, and 

other information described in this section are considered 

SGI only if they reveal ‘‘site-specific details’’ about the 

physical protection of the facility or source, byproduct, or 

special nuclear material. The substitution of ‘‘security-related’’ for ‘‘emergency planning’’ is made to clarify that 

emergency preparedness plans should remain publicly 

available, unless a specific emergency preparedness procedure contains information which could potentially need 

to be protected as SGI. 

73.23(a)(3) ........... The phrase ‘‘relating to inspections and reports’’ is changed 

to ‘‘pertaining to safeguards and security inspections and 

reports.’’ The words ‘‘such as’’ are changed to ‘‘including,’’

and the word ‘‘otherwise’’ is deleted.

This paragraph is revised to more precisely define its scope, 

simplify the revised proposed rule text, and to be consistent with § 73.22(a)(2). 

73.23(a)(3)(ii) ....... The phrase ‘‘after the investigation has been completed’’ is 

changed to ‘‘after corrective actions have been completed.’’

This paragraph is changed to reflect that NRC would release 

general investigation reports after corrective action has 

been taken, unless the information is properly withheld 

under the Freedom of Information Act. Reports of investigation would not be released before corrective action is 

taken because the reports could be used to exploit security deficiencies. 

73.23(a)(4) ........... The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information—Modified Handling.’’ The word ‘‘defined’’ is changed to ‘‘set forth.’’The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information—Modified Handling’’ to better distinguish between these levels of safeguards information, 

which require different marking, storage, and handling requirements. 

73.23(a)(5) ........... The phrase ‘‘Other information’’ is changed to ‘‘Other information within the scope of Section 147 of the Atomic Energy Act of 1954, as amended.’’ The phrase ‘‘material or a 

facility’’ at the end of the original proposed rule text is 

changed to ‘‘source, byproduct, or special nuclear material 

or a facility.’’

This paragraph is changed in response to comments that it 

was too broadly-worded as proposed. The change makes 

clear that the Commission retains the authority to issue 

further orders or regulations requiring the protection of 

categories of information not described in the regulations, 

provided the information still falls within the scope of Section 147 of the Atomic Energy Act of 1954, as amended. 


rwilkins on PROD1PC63 with PROPOSAL_3
64046 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.23(b) ................ This paragraph has been revised and reorganized in the revised proposed rule. The revised proposed rule adds the 

requirement that before an individual may be granted access to SGI–M the individual must undergo an FBI criminal history check. The FBI criminal history check is in addition to an established ‘‘need to know’’ and a background 

check for trustworthiness and reliability.

This paragraph has been revised in the revised proposed 

rule to implement Section 652 of the Energy Policy Act of 

2005, to clarify the requirements for access to SGI–M, 

and to make the structure and language this section identical the structure and language of § 73.22(b). Note that 

pursuant to the Energy Policy Act of 2005, individuals to 

be granted access to SGI–M would be fingerprinted for 

purposes of an FBI criminal history check. 

73.23(b)(1) ........... The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information—Modified Handling.’’ The phrase ‘‘a 

determination of trustworthiness and reliability’’ is changed 

to ‘‘has undergone a Federal Bureau of Investigation 

criminal history check using the procedures set forth in 

§ 73.57.’’ Section 73.23(b)(1) now reads in its entirety: 

‘‘Except as the Commission may otherwise authorize, no 

person may have access to Safeguards Information designated as Safeguards Information—Modified Handling unless the person has an established ‘‘need to know’’ for the 

information and has undergone a Federal Bureau of Investigation criminal history check using the procedures set 

forth in § 73.57.’’

The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information designated as Safeguards Information—Modified Handling’’ to better distinguish between 

these levels of safeguards information, which require different marking, storage, and handling requirements. 

The phrase ‘‘and undergo a Federal Bureau of Investigation 

criminal history check to the extent required by 10 CFR 

73.57 before such access’’ has been added to this paragraph to implement Section 652 of the Energy Policy Act 

2005, which amended Section 149 of the AEA. Under the 

revised proposed rule, an FBI criminal history check, an 

established ‘‘need to know’’, and a background check for 

trustworthiness and reliability would be required to access 

to SGI. 

73.23(b)(2) ........... This section now reads: ‘‘In addition, a person to be granted 

access to SGI must be trustworthy and reliable, based on 

a background check or other means approved by the 

Commission.’’

This paragraph has been revised to clarify that individuals 

would subject to a background check before they may be 

granted access to SGI. The determination that an individual is trustworthy and reliable is based upon a background check, or other means approved by the Commission. The requirement of a background check for trustworthiness and reliability is in addition to the FBI criminal 

history check requirement. The term ‘‘background check’’

is defined in § 73.2. The requirement that individuals undergo a background check to determine their trustworthiness and reliability prior to access to SGI–M was in 

§ 73.23(b)(1)(i) of the original proposed rule. 

73.23(b)(3) ........... This section provides that § 73.59 lists the categories of individuals exempt from the criminal history and background 

check requirements of § 73.23(b)(1)&(2) by virtue of their 

occupational status. 

This paragraph is revised to provide that § 73.59 lists the individuals who would be exempt from the FBI criminal history check requirement in § 73.23(b)(1) and the background check for trustworthiness and reliability requirement in § 73.23(b)(2) by virtue of their occupational status. 

73.23(b)(4) ........... The following paragraph has been added: ‘‘For persons participating in an NRC adjudicatory proceeding other than 

those specified in § 73.59, the ‘need to know’ determination shall be made by the originator of the Safeguards Information upon receipt of a request for access to the 

Safeguards Information. Where the information is in the 

possession of the originator and the NRC staff, whether in 

its original form or incorporated into another document by 

the recipient, the NRC staff shall make the determination. 

In the event of a dispute regarding the ‘need to know’ determination, the presiding officer of the proceeding shall 

determine whether the ‘need to know’ findings in § 73.2 

can be made.’’

This paragraph was added to clarify when the ‘‘need to 

know’’ determination would be made and who would determine whether a participant in an NRC adjudicatory proceeding has a ‘‘need to know’’. 

73.23(b)(5) ........... This paragraph was § 73.23(b)(3) in the original proposed 

rule. The phrase ‘‘except as set forth in paragraph (b)(1)’’

has been deleted and replaced with ‘‘except as set forth in 

this section.’’

The change to this paragraph is the results from the restructuring of § 73.23(b). 

73.23(c)(1) ........... The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information designated as Safeguards InformationModifed Handling.’’ The phrase ‘‘Safeguards Information 

within alarm stations, continuously manned guard posts or 

ready rooms need not be locked in a file drawer or cabinet’’ is changed to ‘‘Safeguards Information designated as 

Safeguards Information-Modifed Handling within alarm 

stations or rooms continuously occupied by authorized individuals need not be locked in a file drawer or cabinet.’’

This paragraph is revised to make clear that SGI can be left 

outside of a locked security storage container if attended 

by individuals authorized access to SGI. The original proposed rule could have been interpreted to allow unauthorized persons access to SGI. The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information—Modified Handling’’ to better distinguish between these levels 

of safeguards information, which require different marking, 

storage, and handling requirements. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64047 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.23(c)(2) ........... The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information—Modified Handling.’’ The word ‘‘may’’

is changed to ‘‘shall.’’

The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information—Modified Handling’’ to better distinguish between these levels of safeguards information, 

which require different marking, storage, and handling requirements. The word ‘‘shall’’ is replacing ‘‘may’’ because 

it is a requirement that locked file drawers or cabinets do 

not identify contents as SGI–M. 

73.23(d)(1) ........... The phrase ‘‘must be marked ‘SGI-Modified Handling’ ’’ is 

changed to ‘‘must be marked to indicate the presence of 

Safeguards Information with modified handling requirements.’’ The phrase ‘‘to indicate the presence of protected 

information’’ is deleted from the end of the first sentence. 

The phrase ‘‘Safeguards Information’’ is changed to 

‘‘Safeguards Information designated as Safeguards Information—Modified Handling.’’

This paragraph is revised in response to comments that the 

proposed document-marking language was too prescriptive. The changes are intended to allow more flexibility in 

document marking. The phrase ‘‘Safeguards Information’’

is changed to ‘‘Safeguards Information—Modified Handling’’ to better distinguish between these levels of safeguards information, which require different marking, storage, and handling requirements. 

73.23(d)(1)(i) ........ The second appearance of the phrase ‘‘safeguards information’’ is deleted. The phrase ‘‘Safeguards Information’’ is 

changed to ‘‘Safeguards Information designated as Safeguards Information—Modified Handling.’’ The word ‘‘designation’’ is changed to ‘‘determination.’’

The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information—Modified Handling’’ to better distinguish between these levels of safeguards information, 

which require different marking, storage, and handling requirements. The word ‘‘designation’’ was changed to ‘‘determination’’ to conform § 73.23(d)(1)(i) to §73.22(d)(1)(i). 

The second reference to safeguards information is removed because it was redundant. 

73.23(d)(1)(iii) ...... The word ‘‘would’’ is changed to ‘‘will’’ ................................... The word ‘‘would’’ is changed to ‘‘will.’’

73.23(d)(2) ........... The phrase ‘‘In addition to the ‘SGI-Modified Handling’ markings’’ is changed to ‘‘In addition to the markings.’’ The 

phrase ‘‘transmittal letter or memoranda’’ is changed to 

‘‘any transmittal letters or memoranda to or from the 

NRC,’’ ‘‘e.g.’’ is changed to ‘‘i.e.,’’ and ‘‘must’’ is changed 

to ‘‘shall.’’ The phrase ‘‘Safeguards Information’’ is 

changed to ‘‘Safeguard Information designated as Safeguards Information—Modified Handling.’’ The word ‘‘document’’ is added after ‘‘transmittal.’’

This paragraph is revised in response to comments that the 

proposed language was too prescriptive. The changes are 

intended to allow more flexibility in document marking. 

The phrase ‘‘Safeguards Information’’ is changed to 

‘‘Safeguards Information—Modified Handling’’ to better 

distinguish between these levels of safeguards information, which require different marking, storage, and handling requirements. The word ‘‘document’’ was added to 

conform this paragraph to § 73.22(d)(2). 

73.23(d)(3) ........... The phrase ‘‘Portion marking of document or other information is required for correspondence to and from the NRC’’

is changed to ‘‘Portion marking is required only for correspondence to and from the NRC (i.e., cover letters, but 

not attachments) that contains Safeguards Information—

Modified Handling.’’ The last sentence of the original proposed rule text is deleted. The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information designated 

as Safeguards Information—Modified Handling.’’ The word 

‘‘transmittal’’ is added before ‘‘document.’’

This paragraph is revised in response to comments seeking 

clarification of which documents require portion marking. 

The intent of the revised section is to require portion 

marking only for cover letters and similar documents that 

transmit correspondence to or from the NRC. Attachments 

to the transmittal document do not need to be portion 

marked. This requirement would enable the NRC to better 

identify some of its security-related regulatory activities to 

the public because it will be administratively easier to redact and disclose portion-marked transmittal documents. 

The phrase ‘‘Safeguards Information’’ is changed to 

‘‘Safeguards Information—Modified Handling’’ to better 

distinguish between these levels of Safeguards Information, which require different marking, storage, and handling requirements. 

73.23(d)(4) ........... This paragraph did not appear in the original proposed rule 

and is added to parallel the requirement in § 73.22(d)(4). 

This paragraph did not appear in the original proposed 

rule and is added to parallel the requirement in 

§ 73.22(d)(4). 

This paragraph is added to parallel the requirement in 

§ 73.22(d)(4) that documents be marked with some minimum level of consistency. Consistency in document 

marking is important to ensure ready and proper identification of SGI, as well as consistent handling. 

73.23(e) ................ The phrase ‘‘If Safeguards Information is reproduced on a 

digital copier that would retain Safeguards Information in 

its memory, then the copier may not be connected to a 

network’’ is changed to ‘‘Equipment used to reproduce 

Safeguards Information designated as Safeguards Information-Modified Handling must be evaluated to ensure 

that unauthorized individuals cannot access the information (e.g., unauthorized individuals cannot access SGI by 

gaining access to retained memory or network 

connectivity).’’ The phrase ‘‘Safeguards Information’’ is 

changed to ‘‘Safeguards Information designated as Safeguards Information-Modified Handling.’’

This paragraph is revised to provide more general instructions on reproduction of SGI. The original proposed paragraph limited the instructions to digital copiers. The revision applies a performance-based standard to any equipment used to reproduce SGI. The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information-Modified Handling’’ to better distinguish between these levels 

of safeguards information, which require different marking, 

storage, and handling requirements. 

73.23(f)(1) ............ The phrase ‘‘Safeguards Information’’ and ‘‘SGI—Modified 

Handling’’ are changed to ‘‘Safeguards Information designated as Safeguards Information-Modified Handling.’’

The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information-Modified Handling’’ to better distinguish between these levels of safeguards information, 

which would require different marking, storage, and handling requirements. 


rwilkins on PROD1PC63 with PROPOSAL_3
64048 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.23(f)(2) ............ The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information designated as Safeguards InformationModified Handling.’’ The words ‘‘nationwide overnight’’ are 

deleted.

The phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information-Modified Handling’’ to better distinguish between these levels of safeguards information, 

which require different marking, storage, and handling requirements. The removal of the words ‘‘nationwide overnight’’ indicates that commercial delivery companies transporting SGI–M would not have to provide nationwide overnight service. SGI–M may be transported by trusted, local 

carriers, so long as the carrier has computer tracking capabilities. 

73.23(f)(3) ............ The words ‘‘or later’’ are added after ‘‘Federal Information 

Processing Standard [FIPS] 140–2.’’ The phrase ‘‘respond 

to a security event’’ is changed to ‘‘respond to a security 

contingency event.’’ The phrase ‘‘Safeguards Information’’

is changed to ‘‘Safeguards Information designated as 

Safeguards Information-Modified Handling.’’

The paragraph is reworded slightly for clarification. The 

phrase ‘‘safeguards or security event’’ is changed to ‘‘security contingency event’’ to emphasize that the requirement is security-related, and to maintain consistency with 

other regulatory provisions. The phrase ‘‘or later’’ is added 

to clarify that encryption technology that meets future Federal Information Processing Standards will be acceptable. 

The phrase ‘‘Safeguards Information’’ is changed to 

‘‘Safeguards Information-Modified Handling’’ to better distinguish between these levels of safeguards information, 

which require different marking, storage, and handling requirement. 

73.23(g)(1) ........... The phrase ‘‘Each file containing Safeguards Information’’ is 

changed to ‘‘Safeguards Information files.’’ The phrase 

‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information designated as Safeguards Information-Modified 

Handling.’’

The second sentence is edited to be more concise. The 

phrase ‘‘Safeguards Information’’ is changed to ‘‘Safeguards Information-Modified Handling’’ to better distinguish between these levels of safeguards information, 

which require different marking, storage, and handling requirements. 

73.23(g)(2) ........... The phrase ‘‘files shall be properly labeled as ‘SGI-Modified 

Handling’ ’’ is changed to ‘‘files shall be properly labeled to 

indicate the presence of Safeguards Information with 

modified handling requirements.’’ The phrase ‘‘Safeguards 

Information’’ is changed to ‘‘Safeguards Information designated as Safeguards Information-Modified Handling.’’

This paragraph is revised in response to comments that the 

proposed language was too prescriptive. The changes are 

intended to allow more flexibility in document marking. 

The phrase ‘‘Safeguards Information’’ is changed to 

‘‘Safeguards Information-Modified Handling’’ to better distinguish between these levels of safeguards information, 

which require different marking, storage, and handling requirements. 

73.23(g)(3) ........... The word ‘‘automated’’ is deleted. The phrase ‘‘Safeguards 

Information’’ is changed to ‘‘Safeguards Information designated as Safeguards Information-Modified Handling.’’

The word ‘‘automated’’ unnecessarily appeared in the original proposed rule and is deleted. The phrase ‘‘Safeguards 

Information’’ is changed to ‘‘Safeguards Inforation-Modified Handling’’ to better distinguish between these levels 

of safeguards information, which would require different 

marking, storage, and handling requirements. 

73.23(h) ................ The word ‘‘must’’ in the last sentence is changed to ‘‘shall.’’

The phrase ‘‘Safeguards Information’’ is changed to 

‘‘Safeguards Information designated as Safeguards Information-Modified Handling.’’

The word ‘‘must’’ is changed to ‘‘shall’’ to be consistent with 

§ 73.22(h). The phrase ‘‘Safeguards Information’’ is 

changed to ‘‘Safeguards Information-Modified Handling’’ to 

better distinguish between these levels of safeguards information, which require different marking, storage, and 

handling requirements. 

73.23(i) ................. The phrase ‘‘tearing into small pieces’’ is deleted from the 

second sentence. The third sentence is changed from 

‘‘Piece sizes one half inch or smaller composed of several 

pages or documents and thoroughly mixed would be considered completely destroyed’’ to ‘‘Piece sizes no wider 

than one quarter inch composed of several pages or documents and thoroughly mixed are considered completely 

destroyed.’’ The phrase ‘‘Safeguards Information’’ is 

changed to ‘‘Safeguards Information designated as Safeguards Information-Modifed Handling.’’

This paragraph is revised to eliminate redundant language 

and to clarify that document destruction results in piece 

sizes no wider than one-quarter inch, thoroughly mixed. 

The phrase ‘‘Safeguards Information’’ is changed to 

‘‘Safeguards Information-Modified Handling’’ to better distinguish between these levels of Safeguards Information, 

which require different marking, storage, and handling requirements. 

73.37(f)(2)(iv) ....... This section is revised to read ‘‘A statement that the information described below in § 73.37(f)(3) is required by 

NRC regulations to be protected in accordance with the 

requirements of §§ 73.21 and 73.22.’’

This change conforms cross-references in part 73 with the 

revised proposed rule. 

73.37(f)(3)(iii) ....... This section is revised to read ‘‘For the case of a single 

shipment whose schedule is not related to the schedule of 

any subsequent shipment, a statement that schedule information must be protected in accordance with the provisions of §§ 73.21 and 73.22 until at least 10 days after the 

shipment has entered or originated within the State.’’

This change conforms cross-references in part 73 with the 

revised proposed rule. 


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64049 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.37(f)(3)(iv) ....... This section is revised to read ‘‘For the case of a shipment 

in a series of shipments whose schedules are related, a 

statement that schedule information must be protected in 

accordance with the provisions of §§ 73.21 and 73.22 until 

10 days after the last shipment in the series has entered 

or originated within the State and an estimate of the date 

on which the last shipment in the series will enter or originate within the State.’’

This change conforms cross-references in part 73 with the 

revised proposed rule. 

73.37(g) ................ This section is revised to read ‘‘State officials, State employees, and other individuals, whether or not licensees of the 

Commission, who receive schedule information of the kind 

specified in § 73.37(f)(3) shall protect that information 

against unauthorized disclosure as specified in §§ 73.21 

and 73.22.’’

This change conforms cross-references in part 73 with the 

revised proposed rule. 

73.57 .................... The revised proposed rule would revise the title of this section to read ‘‘Requirements for criminal history checks of 

individuals granted unescorted access to a nuclear power 

facility or access to Safeguards Information.’’

The title of this section would be changed to reflect application of the criminal history check requirement, including 

fingerprinting, to employees of entities engaged in an activity subject to regulation by the Commission and entities 

who have provided written notice to the Commission of intent to file an application for licensing, certification, permitting, or approval of a product subject to regulation by the 

Commission. This change implements the Energy Policy 

Act of 2005. 

73.57(a)(1) ........... The revised proposed rule adds the phrase ‘‘or to engage in 

an activity subject to regulation by the Commission’’ to existing § 73.57(a)(1).

The original proposed rule has been revised to implement 

the Energy Policy Act of 2005’s requirement that all individuals with access to Safeguards Information undergo an 

FBI criminal history check, including fingerprinting. 

73.57(a)(2) ........... The revised proposed rule adds the phrase ‘‘to engage in an 

activity subject to regulation by the Commission, as well 

as each entity who has provided written notice to the 

Commission of intent to file an application for licensing, 

certification, permitting, or approval of a product subject to 

regulation by the Commission’’ to existing § 73.57(a)(2).

The original proposed rule has been revised to implement 

the Energy Policy Act of 2005’s requirement that all individuals with access to Safeguards Information undergo an 

FBI criminal history check, including fingerprinting. 

73.57(b)(2)(i) ........ The revised proposed rule deletes the phrase ‘‘or for access 

to Safeguards Information.’’ It adds a reference to § 73.23.

The phrase ‘‘or access to Safeguards Information’’ was deleted so that this paragraph would only address individuals exempt from § 73.57(b) for purposes of unescorted 

access to nuclear power facilities. 

73.57(b)(2)(ii) ....... The revised proposed rule revises the list of individuals exempt from § 73.57(b)(1). The phrase ‘‘Employees of other 

agencies of the United States Government’’ is changed to 

‘‘An employee of the Commission or the Executive Branch 

of the United States Government.’’ The phrase ‘‘the Governor of a State or his or her designated employee representatives’’ is changed to ‘‘The Governor of a State or 

his or her designated State employee representative.’’ The 

revised proposed rule adds ‘‘Representatives of the International Atomic Energy Agency (IAEA) engaged in activities associated with the U.S./IAEA Safeguards Agreement 

who have been certified by the NRC,’’ ‘‘Federal, State or 

local law enforcement personnel,’’ ‘‘State Radiation Control Program Directors and State Homeland Security Advisors or their designated State employee representatives,’’

and ‘‘Any agent, contractor, or consultant of aforementioned persons who has undergone equivalent criminal 

history and background checks’’ to the list of individuals 

exempt from § 73.57(b)(1). The revised proposed rule deletes ‘‘individuals to whom disclosure is ordered pursuant 

to § 2.709(f)’’ from the list.

The list of individuals exempt from the requirements of 

§ 73.57(b) for purposes of access to SGI has been revised 

to be consistent with the list of individuals exempt from 

the criminal history and background check requirements 

for access to SGI in §§ 73.22(b)(3) and 73.23(b)(3). Consistent with the statement of considerations accompanying 

§ 73.57 when it was first promulgated (52 FR 6310; 

(March 2, 1987)), the list of exempt individuals continues 

to be limited to individuals who have undergone the same 

or similar criminal history and background checks as a 

condition of employment or who have been certified by 

the NRC. 


rwilkins on PROD1PC63 with PROPOSAL_3
64050 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

73.57(e)(3) ........... The following paragraph has been added: ‘‘In addition to the 

right to obtain records from the FBI in paragraph (e)(1) of 

this section and the right to initiate challenge procedures 

inparagraph (e)(2) of this section, an individual participating in an NRC adjudication and seeking to obtain SGI 

for use in that adjudication may appeal a final adverse determination by the NRC Office of Administration to the 

Presiding Officer of the proceeding. Potential witnesses, 

participants without attorneys, and attorneys for whom the 

NRC Office of Administration has made a final adverse 

determination on trustworthiness and reliability may request that the Chairman of the Atomic Safety and Licensing Board Panel designate an officer other than the Presiding Officer of the proceeding to review the adverse determination.’’

This paragraph makes clear that an individual participating 

in an NRC adjudication and seeking access to SGI for use 

in the adjudication, may appeal to the presiding officer a 

final adverse determination by the NRC Office of Administration on the individual’s trustworthiness and reliability. 

73.59 .................... The title of this section is changed to: ‘‘Relief from 

fingerprinting, identification and criminal history records 

checks and background checks for designated categories 

of individuals.’’

The changes in the title of this section is needed because of 

changes in the text to broaden its scope to include relief 

from the requirements for background checks. The recently promulgated § 73.59 did not relieve the specified 

categories of individuals from background checks because 

no requirement to perform background checks prior to 

granting access to SGI currently existed. Thus, no relief 

was needed. Relieving these categories of individuals 

from the fingerprinting requirements while at the same 

time subjecting them to background checks would not be 

consistent with the underlying premise that these categories of individuals are trustworthy and reliable by virtue 

of their occupational status. 

In addition, § 73.59(a) would be deleted in its entirety, including the definition of SGI. The remainder of the section 

is redesignated to comply with Office of the Federal Register requirements.

Section 73.59(a) is being deleted in its entirety because that 

definition of SGI is captured in 10 CFR § 73.2. Instead, a 

cross-reference to the definition of SGI (and SGI–M) in 

§ 73.2 is made. including SGI–M within the scope of 

§ 73.59 is necessary is necessary to be consistent with 

the structure of the rest of the proposed SGI rule, which 

refers to both SGI and SGI–M. 

Section 73.59(d) is new and adds as a category of individuals: ‘‘The Comptroller General or an employee of the 

Government Accountability Office who has undergone 

fingerprinting for a prior U.S. Government criminal history 

check.’’

Section 73.59(d) is added because the Commission has determined to grant relief under § 73.59 for the Comptroller 

General or an employee of the Government Accountability 

Office who has undergone fingerprinting for a prior U.S. 

Government criminal history check. 

Section 73.59(f) would be revised to refer to both Safeguards Information and Safeguards Information designated as Safeguards Information-Modified Handling 

(SGI–M).

This revision is necessary to reflect the change in terminology in the FRN clarifying that SGI–M is Safeguards Information. 

Section 73.59(k) is also new and would exempt ‘‘Any agent, 

contractor, or consultant of the * * * persons who have 

undergone the equivalent criminal history and background 

checks to those required by 10 CFR §§ 73.22(b) or 

73.23(b).’’

New § 73.59(k) carries over into the new proposed rule the 

category of individuals described in former proposed 

§§ 73.22(b)(3)(vii) and 73.23(b)(3)(vii). 

10 CFR part 73 

Appendix I.

A new Appendix I is added that defines the quantities of 

concern described in the revised proposed rule.

In response to comments, the Commission has included a 

table of radionuclides and quantities that establishes the 

‘‘quantities of concern’’ referenced in this revised proposed rule. The table is based on International Atomic Energy Agency recommendation in its Code of Conduct on 

the Safety and Security of Radioactive Sources, and has 

been used to determine the types and quantities of materials that warrant additional security requirements, some of 

which have already been issued by order. Other protective 

measures are under development based in part on the 

threshold quantities established in this table. 

Radium-226 is being added to the listing of radionuclides ..... Section 651(e) of the Energy Policy Act of 2005 amended 

Section 11e. of the Atomic Energy Act of 1954 to include 

in the definition of byproduct material ‘‘any discrete source 

of radium-226 that is produced, extracted, or converted 

after extraction, before, on, or after the date of enactment 

of this paragraph for use for a commercial, medical, or research activity.’’


rwilkins on PROD1PC63 with PROPOSAL_3
Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64051 

TABLE 1.—CHANGES TO THE ORIGINAL PROPOSED RULE TEXT AND EXPLANATION OF CHANGES—Continued 

[Additional details regarding the changes may be found in the responses to comments.] 

10 CFR section Changes from the original proposed rule text Explanation of changes 

76.113(c) .............. The phrase ‘‘and parts 25 and 95 of this chapter’’ is added 

to the end of the first sentence. The second sentence 

reads: ‘‘Information designated by the U.S. Department of 

Energy (DOE) as Unclassified Controlled Nuclear Information must be protected in accordance with DOE requirements.

In response to public comment, this paragraph has been revised. As revised, Unclassified Controlled Nuclear Information would be protected in accordance with DOE requirements. 

150.15(a)(9) ......... A cross-reference to § 73.22 and the phrase ‘‘as applicable’’

are added.

A cross-reference to § 73.22 and the words ‘‘as applicable’’

are added for completeness. 

D. Request for Specific Comment 

A background check, which would 

contain as an element, a criminal 

history check (including fingerprinting), 

is necessary for access to SGI, in all 

circumstances, unless specifically 

exempt in accordance with the concepts 

in § 73.22(b)(3) and § 73.23(b)(3). Those 

provisions contain cross-reference to 

§ 73.59, which describes categories of 

individuals who are exempt from the 

criminal history check and background 

check requirements by virtue of their 

occupational status. These exemptions 

are authorized by section 149(a)(4)(B) of 

the AEA, under which the Commission 

may, by rule, exempt or relieve 

individuals from the fingerprinting, 

identification, and criminal history 

check requirements. The exercise of 

such authority pursuant to section 

149(a)(4)(B) requires a finding by the 

Commission that such action is 

consistent with its obligations to 

promote the common defense and 

security and to protect the health and 

safety of the public.’’ In the final rule 

promulgating § 73.59, the Commission 

made the required finding. The 

Commission is specifically seeking 

comment on the appropriateness of 

these revised provisions, as they apply 

to various categories of individuals. 

V. Criminal Penalties 

For the purpose of Section 223 of the 

Atomic Energy Act (AEA), the 

Commission is proposing to amend 10 

CFR parts 2, 30, 40, 50, 52, 60, 63, 70, 

71, 72, 73, 76, and 150 under one or 

more of Sections 147, 161b., 161i., or 

161o. of the AEA. Willful violations of 

the revised proposed rule would be 

subject to criminal enforcement. 

VI. Agreement State Issues 

The rule proposes changes to parts 2, 

30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 76, 

and 150 would be considered to be 

Category NRC compatibility and 

therefore are areas of exclusive NRC 

authority. Nonetheless, the original 

proposed rule was provided to the 

Agreement States for their review and 

comment prior to its publication of draft 

rule text on the NRC Web site and the 

publication of the rule in the Federal 

Register. Agreement States had an 

opportunity to review the revised 

proposed rule prior to publication. 

The Agreement States of Illinois and 

Washington commented on the original 

proposed rule prior to publication in the 

Federal Register. Both states expressed 

concern about the breadth of rule text 

reflecting the Commission’s authority to 

prohibit the unauthorized disclosure of 

SGI relating to such quantities of special 

nuclear material, source, and byproduct 

material as the Commission determines 

to be significant to the public health and 

safety or the common defense and 

security. In response to this concern, the 

Commission notes that it needs such 

broad authority to adequately protect 

SGI, and Section 147 of the AEA 

provides such authority to the 

Commission. The Commission has, 

however, modified certain aspects of the 

revised proposed rule, e.g. the definition 

of SGI, to more closely track the 

language in Section 147 of the AEA. 

An agency of the State of New York 

commented on the original proposed 

rule and asserted that the Commission 

lacks the statutory authority to impose 

regulations for the protection of SGI 

pertaining to Agreement State licensees. 

According to these comments, the term 

‘‘licensee’s or ‘‘applicant’s’’ [detailed 

information] in Section 147 cannot be 

construed as inclusive of State licensees 

or applicants. As explained previously 

in response to specific comments, the 

Commission does not agree with this 

commenter’s interpretation of Section 

147. 

VII. Voluntary Consensus Standards 

The National Technology Transfer Act 

of 1995 (Pub. L. 104–113), requires that 

Federal agencies use technical standards 

that are developed or adopted by 

voluntary consensus standards bodies 

unless the use of such a standard is 

inconsistent with applicable law or 

otherwise impractical. In this revised 

proposed rule, the NRC is using the 

following Government-unique standard: 

National Institute of Standards and 

Technology, Federal Information 

Processing Standard [FIPS] PUB–140–2, 

‘‘Security Requirements for 

Cryptographic Modules,’’ May 25, 2001. 

The NRC has determined that using this 

Government-unique standard is justified 

because no voluntary consensus 

standard has been identified that could 

be used instead. In addition, this 

Government-unique standard was 

developed using the same procedures 

used to create a voluntary consensus 

standard. 

VIII. Finding of No Significant Impact: 

Environmental Assessment 

The Commission has determined 

under the National Environmental 

Policy Act of 1969, as amended, and the 

Commission’s regulations in subpart A 

of 10 CFR part 51, that this revised 

proposed rule, if adopted, would not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment and, therefore, an 

environmental impact statement is not 

required. The basis for this 

determination is that the revised 

proposed rule relates to the designation, 

handling and protection of SGI and the 

collection of information on which a 

determination to grant individuals 

access to this information is based. The 

determination of this environmental 

assessment is that there would be no 

significant environmental impacts from 

this action. 

The NRC has sent a copy of the 

environmental assessment and the 

revised proposed rule to every State 

Liaison Officer and requested comments 

on the environmental assessment. No 

State provided comments on the draft 

environmental assessment. 

IX. Paperwork Reduction Act 

Statement 

This proposed rule amends 

information collection requirements that 

are subject to the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

This rule has been submitted to the 


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64052 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

Office of Management and Budget for 

review and approval of the information 

collection requirements. 

Type of submission, new or revision: 

Revision. 

The title of the information collection: 

10 CFR part 73, ‘‘Protection of 

Safeguards Information.’’

The form number if applicable: Not 

applicable. 

How often the collection is required: 

On occasion. Any person (including an 

individual) or entity who is permitted 

access to SGI or Safeguards Information 

designated for modified handling 

(SGI–M) must undergo a background 

check, including fingerprinting, to 

establish trustworthiness and reliability. 

That determination is valid for a 5-year 

period. Licensees must mark and protect 

SGI or SGI–M information from 

unauthorized disclosure on a 

continuous basis. 

Who will be required or asked to 

report: Persons (including individuals) 

or entities who are licensed, certified, or 

permitted to engage in an activity 

subject to regulation by the 

Commission, including utilization 

facilities; vendors; individuals who 

have filed an application for a license or 

certificate to engage in Commissionregulated activities; and individuals 

who have notified the Commission in 

writing of an intent to file an 

application for licensing, certification, 

permitting, or approval of a product or 

activity subject to regulation by the 

Commission. 

An estimate of the number of annual 

responses: 485. 

The estimated number of annual 

respondents: 485. 

An estimate of the total number of 

hours needed annually to complete the 

requirement or request: 4,741 (9.78 

hours per recordkeeper). 

Abstract: The NRC is proposing to 

amend its regulations for the protection 

of Safeguards Information (SGI) and add 

requirements for Safeguards Information 

for modified handling (SGI–M) to 

protect SGI and SGI–M from inadvertent 

release and unauthorized disclosure 

which might compromise the security of 

nuclear facilities and materials. The 

proposed amendments would affect 

certain licensees, information, and 

materials not currently subject to SGI 

regulations, but which are within the 

scope of Commission authority under 

the Atomic Energy Act of 1954, as 

amended (AEA). The NRC originally 

published the proposed rule in the 

Federal Register on February 11, 2005 

(70 FR 7196). The NRC is again 

publishing the proposed rule on SGI in 

order to allow the public to comment on 

changes to the rule text. These changes 

are in response to public comments and 

amendments to the AEA in the Energy 

Policy Act of 2005 (EPAct) and 

Commission Orders issued to licensees 

authorized to possess and transfer items 

containing certain quantities of 

radioactive material. 

The U.S. Nuclear Regulatory 

Commission is seeking public comment 

on the potential impact of the 

information collections contained in 

this proposed rule and on the following 

issues: 

1. Is the proposed information 

collection necessary for the proper 

performance of the functions of the 

NRC, including whether the information 

will have practical utility? 

2. Is the estimate of burden accurate? 

3. Is there a way to enhance the 

quality, utility, and clarity of the 

information to be collected? 

4. How can the burden of the 

information collection be minimized, 

including the use of automated 

collection techniques? 

A copy of the OMB clearance package 

may be viewed free of charge at the NRC 

Public Document Room, One White 

Flint North, 11555 Rockville Pike, Room 

O–1 F21, Rockville, MD 20852. The 

OMB clearance package and rule are 

available at the NRC worldwide Web 

site: http://www.nrc.gov/public-involve/ 

doc-comment/omb/index.html for 60 

days after the signature date of this 

notice and are also available at the 

RuleForum site, http:// 

ruleforum.llnl.gov. 

Send comments on any aspect of 

these proposed information collections, 

including suggestions for reducing the 

burden and on the above issues, by 

November 30, 2006 to the Records and 

FOIA/Privacy Services Branch 

(T–5 F52), U.S. Nuclear Regulatory 

Commission, Washington, DC 20555–

0001, or by Internet electronic mail to 

INFOCOLLECTS@NRC.GOV and to the 

Desk Officer, John A. Asalone, Office of 

Information and Regulatory Affairs, 

NEOB–10202, (3150–0002), Office of 

Management and Budget, Washington, 

DC 20503. Comments received after this 

date will be considered if it is practical 

to do so, but assurance of consideration 

cannot be given to comments received 

after this date. You may also e-mail 

comments to 

John_A._Asalone@omb.eop.gov or 

comment by telephone at (202) 395–

4650. 

Public Protection Notification 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a request for information or an 

information collection requirement 

unless the requesting document 

displays a currently valid OMB control 

number. 

X. Regulatory Analysis 

The Commission has prepared a 

revised regulatory analysis on this 

revised proposed rule. The revised 

analysis examines the costs and benefits 

of the alternatives considered by the 

Commission. The revised regulatory 

analysis is available for inspection in 

the NRC Public Document Room, 11555 

Rockville Pike, Rockville, MD 20852. 

The revised regulatory analysis is also 

available electronically via the NRC 

rulemaking Web site at http:// 

ruleforum.llnl.gov. Single copies of the 

revised analysis may be obtained from 

the Office of the General Counsel, U.S. 

Nuclear Regulatory Commission, at 

301–415–1633 or by e-mail at 

mur@nrc.gov. 

XI. Regulatory Flexibility Certification 

In accordance with the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 605(b), 

the NRC has determined that this rule, 

if adopted, would not have a significant 

economic impact upon a substantial 

number of small entities. The NRC 

estimates that the proposed regulation 

will affect approximately 152 NRC 

licensees, 87 Agreement State licensees, 

200 State contacts, and 29 applicants for 

licenses. The NRC estimates that small 

businesses as defined by 10 CFR 2.810 

comprise less than 1 percent of the total 

number of NRC licensees and state 

contacts affected by this regulation. The 

NRC does not have information on the 

small business status of the Agreement 

State licensees or applicants for NRC 

and Agreement State licenses affected 

by this regulation, therefore, in its 

February 11, 2005 original proposed 

rule and the regulatory analysis 

developed in support of the original 

proposed rule, the NRC requested 

public comments on the impact of the 

original proposed rule on small 

businesses. No comments were 

received. In the absence of information 

on the small business status of the 

Agreement State licensees and 

applicants for NRC and Agreement State 

licenses affected by this regulation and 

based on the small proportion of NRC 

licensees that qualify as small entities, 

the NRC estimates that the number of 

small entities among these licensees is 

also less than 1 percent. For a small 

entity, the implementation burden 

imposed by the regulation is estimated 

to be 41.8 hours, and the annual burden 

is estimated to be 3.5 hours. 

The potential benefits of preventing 

disclosure of SGI by unauthorized 

persons would significantly outweigh 

the economic impact on small licensees. 


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XII. Backfit Analysis 

The Commission has concluded, on 

the basis of the documented evaluation 

in the revised regulatory analysis, that 

the majority of the requirements in the 

revised proposed rule would not be 

backfits as defined in 10 CFR 

50.109(a)(4)(ii), 70.76(a)(4)(iii), 72.62, 

and 76.76(a)(4)(ii). The Commission has 

also concluded that the requirements in 

the rule that would constitute backfits 

are necessary to ensure insure that the 

facilities and materials described in the 

rule provide adequate protection to the 

public health and safety and are in 

accord with the common defense and 

security, as applicable. Therefore, a 

backfit analysis is not required and the 

cost-benefit standards of 10 CFR 

50.109(a)(3), 70.76, 72.62, and 76.76, do 

not apply. The documented evaluation 

in the revised regulatory analysis 

includes a statement of the objectives of 

and the reasons for the backfits that 

would be required by the revised 

proposed rule and sets forth the 

Commission’s conclusion that these 

backfits are not subject to the costbenefit standards of 10 CFR 50.109(a)(3), 

70.76, 72.62, and 76.76. 

List of Subjects 

10 CFR Part 2 

Administrative practice and 

procedure, Antitrust, Byproduct 

material, Classified information, 

Environmental protection, Nuclear 

materials, Nuclear power plants and 

reactors, Penalties, Sex discrimination, 

Source material, Special nuclear 

material, Waste treatment and disposal. 

10 CFR Part 30 

Byproduct material, Criminal 

penalties, Government contracts, 

Intergovernmental relations, Isotopes, 

Nuclear materials, Radiation protection, 

Reporting and recordkeeping 

requirements. 

10 CFR Part 40 

Criminal penalties, Government 

contracts, Hazardous materials 

transportation, Nuclear materials, 

Reporting and recordkeeping 

requirements, Source material, 

Uranium. 

10 CFR Part 50 

Antitrust, Classified information, 

Criminal penalties, Fire protection, 

Intergovernmental relations, Nuclear 

power plants and reactors, Radiation 

protection, Reactor siting criteria, 

Reporting and recordkeeping 

requirements. 

10 CFR Part 52 

Administrative practice and 

procedure, Antitrust, Backfitting, 

Combined license, Early site permit, 

Emergency planning, Fees, Inspection, 

Limited work authorization, Nuclear 

power plants and reactors, Probabilistic 

risk assessment, Prototype, Reactor 

siting criteria, Redress of site, Reporting 

and recordkeeping requirements, 

Standard design, Standard design 

certification. 

10 CFR Part 60 

Criminal penalties, High-level waste, 

Nuclear materials, Nuclear power plants 

and reactors, Reporting and 

recordkeeping requirements, Waste 

treatment and disposal. 

10 CFR Part 63 

Criminal penalties, High-level waste, 

Nuclear power plants and reactors, 

Reporting and recordkeeping 

requirements, Waste treatment and 

disposal. 

10 CFR Part 70 

Criminal penalties, Hazardous 

materials transportation, Material 

control and accounting, Nuclear 

materials, Packaging and containers, 

Radiation protection, Reporting and 

recordkeeping requirements, Scientific 

equipment, Security measures, Special 

nuclear material. 

10 CFR Part 71 

Criminal penalties, Hazardous 

materials transportation, Nuclear 

materials, Packaging and containers, 

Reporting and recordkeeping 

requirements. 

10 CFR Part 72 

Administrative practice and 

procedure, Criminal penalties, 

Manpower training programs, Nuclear 

materials, Occupational safety and 

health, Penalties, Radiation protection, 

Reporting and recordkeeping 

requirements, Security measures, Spent 

fuel, Whistleblowing. 

10 CFR Part 73 

Criminal penalties, Export, Hazardous 

materials transportation, Import, 

Nuclear materials, Nuclear power plants 

and reactors, Reporting and 

recordkeeping requirements, Security 

measures. 

10 CFR Part 76 

Certification, Criminal penalties, 

Radiation protection, Reporting and 

record keeping requirements, Security 

measures, Special nuclear material, 

Uranium enrichment by gaseous 

diffusion. 

10 CFR Part 150 

Criminal penalties, Hazardous 

materials transportation, 

Intergovernmental relations, Nuclear 

materials, Reporting and recordkeeping 

requirements, Security measures, 

Source material, Special nuclear 

material. 

For the reasons set out in the 

preamble and under the authority of the 

Atomic Energy Act of 1954, as amended; 

the Energy Reorganization Act of 1974, 

as amended; and 5 U.S.C. 553; the NRC 

is proposing to adopt the following 

amendments to 10 CFR parts 2, 30, 40, 

50, 52, 60, 63, 70, 71, 72, 73, 76 and 150. 

PART 2—RULES OF PRACTICE FOR 

DOMESTIC LICENSING PROCEEDINGS 

AND ISSUANCE OF ORDERS 

1. The authority citation for part 2 is 

revised to read as follows: 

Authority: Secs.149, 161, 181, 68 Stat. 948, 

953, as amended (42 U.S.C. 2201, 2231, 

2169); sec. 191, as amended, Pub. L. 87–615, 

76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 

Stat. 1242, as amended (42 U.S.C. 5841); 5 

U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 

U.S.C. 3504 note); Energy Policy Act of 2005, 

Pub. L. No. 109–58, 119 Stat. 594 (2005). 

Section 2.101 also issued under secs. 53, 62, 

63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 

935, 936, 937, 938, as amended (42 U.S.C. 

2073, 2092, 2093, 2111, 2133, 2134, 2135); 

sec. 114(f), Pub. L. 97–425, 96 Stat. 2213, as 

amended (42 U.S.C. 10143(f)), sec. 102, Pub. 

L. 91–190, 83 Stat. 853, as amended (42 

U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 

U.S.C. 5871). Sections 2.102, 2.103, 2.104, 

2.105, 2.721 also issued under secs. 102, 103, 

104, 105, 183i, 189, 68 Stat. 936, 937, 938, 

954, 955, as amended (42 U.S.C. 2132, 2133, 

2134, 2135, 2233, 2239). Sections 2.105 also 

issued under Pub. L. 97–415, 96 Stat. 2073 

(42 U.S.C. 2239). Sections 2.200–2.206 also 

issued under secs. 161 b, i, o, 182, 186, 234, 

68 Stat. 948–951, 955, 83 Stat. 444, as 

amended (42 U.S.C. 2201(b), (i), (o), 2236, 

2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). 

Section 2.205(j) also issued under Pub. L. 

101–410, 104 Stat. 90, as amended by section 

3100(s), Pub. L. 104–134, 110 Stat. 1321–373 

(28 U.S.C. 2461 note). Sections 2.600–2.606 

also issued under sec. 102, Pub. L. 91–190, 

83 Stat. 853, as amended (42 U.S.C. 4332). 

Sections 2.700a, 2.719 also issued under 5 

U.S.C. 554. Sections 2.754, 2.760, 2.770, 

2.780 also issued under 5 U.S.C. 557. Section 

2.764 also issued under secs. 135, 141, Pub. 

L. 97–425, 96 Stat. 2232, 2241 (42 U.S.C. 

10155, 10161). Section 2.790 also issued 

under sec. 103, 68 Stat. 936, as amended (42 

U.S.C. 2133), and 5 U.S.C. 552. Sections 

2.800 and 2.808 also issued under 5 U.S.C. 

553. Section 2.809 also issued under 5 U.S.C. 

553, and sec. 29, Pub. L. 85–256, 71 Stat. 579, 

as amended (42 U.S.C. 2039). Subpart K also 

issued under sec. 189, 68 Stat. 955 (42 U.S.C. 

2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 

(42 U.S.C. 10154). Subpart L also issued 

under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). 

Subpart M also issued under sec. 184 (42 


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U.S.C. 2234) and sec. 189, 68 stat. 955 (42 

U.S.C. 2239). Appendix A also issued under 

sec. 6, Pub. L. 91–560, 84 Stat. 1473 (42 

U.S.C. 2135). 

2. In § 2.4, a new definition for 

Safeguards Information is added in 

alphabetical order to read as follows: 

§ 2.4 Definitions. 

* * * * * 

Safeguards Information means 

information not classified as National 

Security Information or Restricted Data 

which specifically identifies a licensee’s 

or applicant’s detailed control and 

accounting procedures for the physical 

protection of special nuclear material in 

quantities determined by the 

Commission through order or regulation 

to be significant to the public health and 

safety or the common defense and 

security; detailed security measures 

(including security plans, procedures, 

and equipment) for the physical 

protection of source, byproduct, or 

special nuclear material in quantities 

determined by the Commission through 

order or regulation to be significant to 

the public health and safety or the 

common defense and security; security 

measures for the physical protection 

and location of certain plant equipment 

vital to the safety of production or 

utilization facilities; and any other 

information within the scope of Section 

147 of the Atomic Energy Act of 1954, 

as amended, the unauthorized 

disclosure of which, as determined by 

the Commission through order or 

regulation, could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 

security by significantly increasing the 

likelihood of sabotage or theft or 

diversion of source, byproduct, or 

special nuclear material. 

* * * * * 

3. In § 2.336, paragraph (f) is 

redesignated as (g), and a new paragraph 

(f) is added to read as follows: 

§ 2.336 General discovery. 

* * * * * 

(f)(1) In the event of a dispute over 

disclosure of documents and records 

including Safeguards Information 

referred to in Sections 147 and 181 of 

the Atomic Energy Act, as amended, the 

presiding officer may issue an order 

requiring disclosure if—

(i) The presiding officer finds that the 

individual seeking access to Safeguards 

Information to participate in an NRC 

adjudication has the requisite ‘‘need to 

know’’, as defined in § 73.2; 

(ii) The individual has undergone an 

FBI criminal history check, unless 

exempt under §§ 73.22(b)(3) or 

73.23(b)(3), as applicable, by submitting 

fingerprints to the NRC Office of 

Administration, Security Processing 

Unit, Mail Stop T–6E46, U.S. Nuclear 

Regulatory Commission, Washington 

D.C. 20555–0001, and otherwise 

following the procedures in § 73.57(d) 

for submitting and processing of 

fingerprints. However, before an adverse 

determination by the NRC Office of 

Administration on an individual’s 

criminal history check, the individual 

shall be afforded the protections 

provided by § 73.57; and 

(iii) The NRC Office of Administration 

has found, based upon a background 

check, that the individual is trustworthy 

and reliable, unless exempt under 

§§ 73.22(b)(3) or 73.23(b)(3), as 

applicable. However, before an adverse 

determination on an individual’s 

background check for trustworthiness 

and reliability, the individual shall be 

afforded the protections provided by 

§ 73.57. 

(iv) Participants, potential witnesses, 

and attorneys for whom the NRC Office 

of Administration has made a final 

adverse determination on 

trustworthiness and reliability may 

request the presiding officer to review 

the adverse determination. The request 

may also seek to have the Chairman of 

the Atomic Safety and Licensing Board 

Panel designate an officer other than the 

presiding officer of the proceeding to 

review the adverse determination. For 

purposes of review, the adverse 

determination must be in writing and 

set forth the grounds for the 

determination. The request for review 

shall be served on the NRC staff and 

may include additional information for 

review by the presiding officer. The 

request must be filed within 15 days 

after receipt of the adverse 

determination by the person against 

whom the adverse determination has 

been made. Within 10 days of receipt of 

the request for review and any 

additional information, the NRC staff 

will file a response indicating whether 

the request and additional information 

has caused the NRC Office of 

Administration to reverse its adverse 

determination. The presiding officer 

may reverse the Office of 

Administration’s final adverse 

determination only if the officer finds, 

based on all the information submitted, 

that the adverse determination 

constitutes an abuse of discretion. The 

presiding officer’s decision must be 

rendered within 15 days after receipt of 

the staff filing indicating that the 

request for review and additional 

information has not changed the NRC 

Office of Administration’s adverse 

determination. 

(2) The presiding officer may include 

in an order any protective terms and 

conditions (including affidavits of nondisclosure) as may be necessary and 

appropriate to limit the disclosure to 

parties in the proceeding, to interested 

States and other governmental entities 

participating under § 2.315(c), and to 

their qualified witnesses and counsel. 

(3) When Safeguards Information 

protected from unauthorized disclosure 

under Section 147 of the Atomic Energy 

Act, as amended, is received and 

possessed by a participant other than 

the NRC staff, it must also be protected 

according to the requirements of § 73.21 

and the requirements of § 73.22 or 

§ 73.23 of this chapter, as applicable. 

(4) The presiding officer may also 

prescribe additional procedures to 

effectively safeguard and prevent 

disclosure of Safeguards Information to 

unauthorized persons with minimum 

impairment of the procedural rights 

which would be available if Safeguards 

Information were not involved. 

(5) In addition to any other sanction 

that may be imposed by the presiding 

officer for violation of an order issued 

pursuant to this paragraph, violation of 

an order pertaining to the disclosure of 

Safeguards Information protected from 

disclosure under Section 147 of the 

Atomic Energy Act, as amended, may be 

subject to a civil penalty imposed under 

§ 2.205. 

(6) For the purpose of imposing the 

criminal penalties contained in Section 

223 of the Atomic Energy Act, as 

amended, any order issued pursuant to 

this paragraph with respect to 

Safeguards Information is considered to 

be an order issued under Section 161b. 

of the Atomic Energy Act. 

* * * * * 

4. In § 2.705, paragraph (c)(2) is 

revised and new paragraphs (c)(3) 

through (7) are added to read as follows: 

§ 2.705 Discovery-additional methods. 

* * * * * 

(c) * * * 

(2) In the case of documents and 

records including Safeguards 

Information referred to in Sections 147 

and 181 of the Atomic Energy Act, as 

amended, the presiding officer may 

issue an order requiring disclosure if—

(i) The presiding officer finds that the 

individual seeking access to Safeguards 

Information in order to participate in an 

NRC proceeding has the requisite ‘‘need 

to know’’, as defined in § 73.2; 

(ii) The individual has undergone an 

FBI criminal history check, unless 

exempt under §§ 73.22(b)(3) or 

73.23(b)(3), as applicable by submitting 

fingerprints to the NRC Office of 

Administration, Security Processing 


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Unit, Mail Stop T–6E46, U.S. Nuclear 

Regulatory Commission, Washington DC 

20555–0001, and otherwise following 

the procedures in § 73.57(d) for 

submitting and processing fingerprints. 

However, before an adverse 

determination on an individual’s 

criminal history check by the NRC 

Office of Administration, the individual 

shall be afforded the protections of 

§ 73.57; and 

(iii) The NRC Office of Administration 

has found, based upon a background 

check, that the individual is trustworthy 

and reliable, unless exempt under 

§§ 73.22(b)(3) or 73.23(b)(3). However, 

before an adverse determination on an 

individual’s background check for 

trustworthiness and reliability, the 

individual shall be afforded the 

protections of § 73.57. 

(iv) Participants, potential witnesses, 

and attorneys for whom the NRC Office 

of Administration has made a final 

adverse determination on 

trustworthiness and reliability may 

request the presiding officer to review 

the adverse determination. The request 

may also seek to have the Chairman of 

the Atomic Safety and Licensing Board 

Panel designate an officer other than the 

presiding officer of the proceeding to 

review the adverse determination. For 

purposes of review, the adverse 

determination must be in writing and 

set forth the grounds for the 

determination. The request for review 

shall be served on the NRC staff and 

may include additional information for 

review by the presiding officer. The 

request must be filed within 15 days 

after receipt of the adverse 

determination by the person against 

whom the adverse determination has 

been made. Within 10 days of receipt of 

the request for review and any 

additional information, the NRC staff 

will file a response indicating whether 

the request and additional information 

has caused the NRC Office of 

Administration to reverse its adverse 

determination. The presiding officer 

may reverse the Office of 

Administration’s final adverse 

determination only if the officer finds, 

based on all the information submitted, 

that the adverse determination 

constitutes an abuse of discretion. The 

presiding officer’s decision must be 

rendered within 15 days after receipt of 

the staff filing indicating that the 

request for review and additional 

information has not changed the NRC 

Office of Administration’s adverse 

determination. 

(3) The presiding officer may include 

in an order any protective terms and 

conditions (including affidavits of nondisclosure) as may be necessary and 

appropriate to limit the disclosure to 

parties in the proceeding, to interested 

States and other governmental entities 

participating under § 2.315(c), and to 

their qualified witnesses and counsel. 

(4) When Safeguards Information 

protected from unauthorized disclosure 

under Section 147 of the Atomic Energy 

Act, as amended, is received and 

possessed by a participant other than 

the NRC staff, it must also be protected 

according to the requirements of § 73.21 

and the requirements of § 73.22 or 

§ 73.23 of this chapter, as applicable. 

(5) The presiding officer may also 

prescribe additional procedures to 

effectively safeguard and prevent 

disclosure of Safeguards Information to 

unauthorized persons with minimum 

impairment of the procedural rights 

which would be available if Safeguards 

Information were not involved. 

(6) In addition to any other sanction 

that may be imposed by the presiding 

officer for violation of an order issued 

pursuant to this paragraph, violation of 

an order pertaining to the disclosure of 

Safeguards Information protected from 

disclosure under Section 147 of the 

Atomic Energy Act, as amended, may be 

subject to a civil penalty imposed under 

§ 2.205. 

(7) For the purpose of imposing the 

criminal penalties contained in Section 

223 of the Atomic Energy Act, as 

amended, any order issued pursuant to 

this paragraph with respect to 

Safeguards Information is considered to 

be an order issued under Section 161b. 

of the Atomic Energy Act. 

* * * * * 

5. In § 2.709, paragraph (f) is revised 

to read as follows: 

§ 2.709 Discovery against NRC staff. 

* * * * * 

(f) (1) In the case of requested 

documents and records (including 

Safeguards Information referred to in 

Sections 147 and 181 of the Atomic 

Energy Act, as amended) exempt from 

disclosure under § 2.390, the presiding 

officer may issue an order requiring 

disclosure to the Executive Director for 

Operations or a delegate of the 

Executive Director for Operations, to 

produce the document or records (or 

any other order issued ordering 

production of the document or records) 

if—

(i) The presiding officer finds that the 

individual seeking access to Safeguards 

Information to participate in an NRC 

adjudication has the requisite ‘‘need to 

know’’, as defined in § 73.2; 

(ii) The individual has undergone an 

FBI criminal history check, unless 

exempt under §§ 73.22(b)(3) or 

73.23(b)(3), by submitting fingerprints to 

the NRC Office of Administration, 

Security Processing Unit, Mail Stop T–

6E46, U.S. Nuclear Regulatory 

Commission, Washington DC 20555–

0001, and otherwise following the 

procedures in § 73.57(d) for submitting 

and processing fingerprints. However, 

before an adverse determination by the 

NRC Office of Administration on an 

individual’s criminal history check, the 

individual shall be afforded the 

protections of § 73.57; and 

(iii) The NRC Office of Administration 

finds, based on a background check, that 

the individual is trustworthy and 

reliable, unless exempt under 

§§ 73.22(b)(3) or 73.23(b)(3), as 

applicable. However, before an adverse 

determination by the NRC Office of 

Administration on an individual’s 

background check for trustworthiness 

and reliability, the individual shall be 

afforded the protections of § 73.57. 

(iv) Participants, potential witnesses, 

and attorneys for whom the NRC Office 

of Administration has made a final 

adverse determination on 

trustworthiness and reliability may 

request the presiding officer to review 

the adverse determination. The request 

may also seek to have the Chairman of 

the Atomic Safety and Licensing Board 

Panel designate an officer other than the 

presiding officer of the proceeding to 

review the adverse determination. For 

purposes of review, the adverse 

determination must be in writing and 

set forth the grounds for the 

determination. The request for review 

shall be served on the NRC staff and 

may include additional information for 

review by the presiding officer. The 

request must be filed within 15 days 

after receipt of the adverse 

determination by the person against 

whom the adverse determination has 

been made. Within 10 days of receipt of 

the request for review and any 

additional information, the NRC staff 

will file a response indicating whether 

the request and additional information 

has caused the NRC Office of 

Administration to reverse its adverse 

determination. The presiding officer 

may reverse the Office of 

Administration’s final adverse 

determination only if the officer finds, 

based on all the information submitted, 

that the adverse determination 

constitutes an abuse of discretion. The 

presiding officer’s decision must be 

rendered within 15 days after receipt of 

the staff filing indicating that the 

request for review and additional 

information has not changed the NRC 

Office of Administration’s adverse 

determination. 

(2) The presiding office may include 

in an order any protective terms and 


rwilkins on PROD1PC63 with PROPOSAL_3
64056 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

conditions (including affidavits of nondisclosure) as may be necessary and 

appropriate to limit the disclosure to 

parties in the proceeding, to interested 

States and other governmental entities 

participating under § 2.315(c), and to 

their qualified witnesses and counsel. 

(3) When Safeguards Information 

protected from disclosure under Section 

147 of the Atomic Energy Act, as 

amended, is received and possessed by 

a participant other than the NRC staff, 

it must also be protected according to 

the requirements of § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable. 

(4) The presiding officer may also 

prescribe additional procedures to 

effectively safeguard and prevent 

disclosure of Safeguards Information to 

unauthorized persons with minimum 

impairment of the procedural rights 

which would be available if Safeguards 

Information were not involved. 

(5) In addition to any other sanction 

that may be imposed by the presiding 

officer for violation of an order issued 

pursuant to this paragraph, violation of 

an order pertaining to the disclosure of 

Safeguards Information protected from 

disclosure under Section 147 of the 

Atomic Energy Act, as amended, may be 

subject to a civil penalty imposed under 

§ 2.205. 

(6) For the purpose of imposing the 

criminal penalties contained in Section 

223 of the Atomic Energy Act, as 

amended, any order issued pursuant to 

this paragraph with respect to 

Safeguards Information is considered to 

be an order issued under Section 161b. 

of the Atomic Energy Act. 

* * * * * 

6. In § 2.1003, paragraph (a)(4)(iii) is 

revised to read as follows: 

§ 2.1003 Availability of material. 

(a) * * * 

(4) * * * 

(iii) Which constitutes Safeguards 

Information under § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable. 

* * * * * 

7. In § 2.1010, paragraph (b)(6) is 

revised to read as follows: 

§ 2.1010 Pre-License application presiding 

officer. 

* * * * * 

(b) * * * 

(6) Whether the material should be 

disclosed under a protective order 

containing such protective terms and 

conditions (including affidavits of 

nondisclosure) as may be necessary and 

appropriate to limit the disclosure to 

potential parties, interested 

governmental participants, and parties 

in the proceeding, or to their qualified 

witnesses and counsel. 

(i) The Pre-License Application 

Presiding Officer may issue an order 

requiring disclosure of Safeguards 

Information if—

(A) The Pre-License Application 

Presiding Officer finds that the 

individual seeking access to Safeguards 

Information in order to participate in an 

NRC adjudication has the requisite 

‘‘need to know’’, as defined in § 73.2; 

(B) The individual has undergone an 

FBI criminal history check, unless 

exempt under §§ 73.22(b)(3) or 

73.23(b)(3), as applicable by submitting 

fingerprints to the NRC Office of 

Administration, Security Processing 

Unit, Mail Stop T–6E46, U.S. Nuclear 

Regulatory Commission, Washington DC 

20555–0001, and otherwise following 

the procedures in § 73.57(d) for 

submitting and processing fingerprints. 

However, before an adverse 

determination by the NRC Office of 

Administration on an individual’s 

criminal history, the individual shall be 

afforded the protections of § 73.57; and 

(C) A finding by the NRC Office of 

Administration, based on a background 

check, that the individual is trustworthy 

and reliable, unless exempt under 

§§ 73.22(b)(3) or 73.23(b)(3), as 

applicable. However, before an adverse 

determination by the NRC Office of 

Administration on an individual’s 

background check for trustworthiness 

and reliability, the individual shall be 

afforded the protections on § 73.57. 

(D) Participants, potential witnesses, 

and attorneys for whom the NRC Office 

of Administration has made a final 

adverse determination on 

trustworthiness and reliability may 

request the presiding officer to review 

the adverse determination. The request 

may also seek to have the Chairman of 

the Atomic Safety and Licensing Board 

Panel designate an officer other than the 

presiding officer of the proceeding to 

review the adverse determination. For 

purposes of review, the adverse 

determination must be in writing and 

set forth the grounds for the 

determination. The request for review 

shall be served on the NRC staff and 

may include additional information for 

review by the presiding officer. The 

request must be filed within 15 days 

after receipt of the adverse 

determination by the person against 

whom the adverse determination has 

been made. Within 10 days of receipt of 

the request for review and any 

additional information, the NRC staff 

will file a response indicating whether 

the request and additional information 

has caused the NRC Office of 

Administration to reverse its adverse 

determination. The presiding officer 

may reverse the Office of 

Administration’s final adverse 

determination only if the officer finds, 

based on all the information submitted, 

that the adverse determination 

constitutes an abuse of discretion. The 

presiding officer’s decision must be 

rendered within 15 days after receipt of 

the staff filing indicating that the 

request for review and additional 

information has not changed the NRC 

Office of Administration’s adverse 

determination. 

(ii) The Pre-License Application 

Presiding Officer may include in an 

order any protective terms and 

conditions (including affidavits of nondisclosure) as may be necessary and 

appropriate to limit the disclosure to 

parties in the proceeding, to interested 

states and other governmental entities 

participating under § 2.315(c), and to 

their qualified witnesses and counsel. 

(iii) When Safeguards Information, 

protected from disclosure under Section 

147 of the Atomic Energy Act of 1954, 

as amended, is received and possessed 

by a potential party, interested 

government participant, or party, other 

than the NRC staff, it shall also be 

protected according to the requirements 

of § 73.21 and the requirements of 

§§ 73.22 or 73.23 of this chapter, as 

applicable. 

(iv) The Pre-License Application 

Presiding Officer may also prescribe 

such additional procedures as will 

effectively safeguard and prevent 

disclosure of Safeguards Information to 

unauthorized persons with minimum 

impairment of the procedural rights 

which would be available if Safeguards 

Information were not involved. 

(v) In addition to any other sanction 

that may be imposed by the Pre-License 

Application Presiding Officer for 

violation of an order pertaining to the 

disclosure of Safeguards Information 

protected from disclosure under Section 

147 of the Atomic Energy Act of 1954, 

as amended, the entity in violation may 

be subject to a civil penalty imposed 

pursuant to § 2.205. 

(vi) For the purpose of imposing the 

criminal penalties contained in Section 

223 of the Atomic Energy Act of 1954, 

as amended, any order issued pursuant 

to this paragraph with respect to 

Safeguards Information shall be deemed 

to be an order issued under Section 

161b. of the Atomic Energy Act of 1954, 

as amended. 

* * * * * 


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PART 30—RULES OF GENERAL 

APPLICABILITY TO DOMESTIC 

LICENSING OF BYPRODUCT 

MATERIAL 

8. The authority citation for part 30 is 

revised to read as follows: 

Authority: Secs. 81, 82, 161, 182, 183, 186, 

68 Stat. 935, 948, 953, 954, 955, as amended, 

sec. 234, 83 Stat. 444, as amended (42 U.S.C. 

2111, 2112, 2201, 2232, 2233, 2236, 2282); 

secs. 201, as amended, 202, 206, 88 Stat. 

1242, as amended, 1244, 1246 (42 U.S.C. 

5841, 5842, 5846); sec. 1704, 112 Stat. 2750 

(44 U.S.C. 3504 note); Energy Policy Act of 

2005, Pub. L. No. 109–58, 119 Stat. 549 

(2005). Section 30.7 also issued under Pub. 

L. 95–601, sec. 10, 92 Stat. 2951 as amended 

by Pub. L. 102–486, sec. 2902, 106 Stat. 3123, 

(42 U.S.C. 5851). Section 30.34(b) also issued 

under sec. 184, 68 Stat. 954, as amended (42 

U.S.C. 2234). Section 30.61 also issued under 

sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 

9. In § 30.32, paragraph (j) is added to 

read as follows: 

§ 30.32 Application for specific licenses. 

* * * * * 

(j) Each applicant for a license for 

byproduct material subject to the 

requirements of part 73 of this chapter 

shall protect Safeguards Information 

against unauthorized disclosure in 

accordance with the requirements in 

§§ 73.21 and 73.23 of this chapter, as 

applicable. 

10. In § 30.34, paragraph (j) is added 

to read as follows: 

§ 30.34 Terms and conditions of licenses. 

* * * * * 

(j) Each licensee subject to the 

requirements of part 73 of this chapter 

shall ensure that Safeguards Information 

is protected against unauthorized 

disclosure in accordance with the 

requirements in §§ 73.21 and 73.23 of 

this chapter, as applicable. 

PART 40—DOMESTIC LICENSING OF 

SOURCE MATERIAL 

11. The authority citation for part 40 

is revised to read as follows: 

Authority: Secs. 62, 63, 64, 65, 81, 161, 

182, 183, 186, 68 Stat. 932, 933, 935, 948, 

953, 954, 955, as amended, secs. 11e(2), 83, 

84, Pub. L. 95–604, 92 Stat. 3033, as 

amended, 3039, sec. 234, 83 Stat. 444, as 

amended (42 U.S.C. 2014(e)(2), 2092, 2093, 

2094, 2095, 2111, 2113, 2114, 2201, 2232, 

2233, 2236, 2282); sec. 274, Pub. L. 86–373, 

73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 

amended, 202, 206, 88 Stat. 1242, as 

amended, 1244, 1246 (42 U.S.C. 5841, 5842, 

5846); sec. 275, 92 Stat. 3021, as amended by 

Pub. L. 97–415, 96 Stat. 2067 (42 U.S.C. 

2022); sec. 193, 104 Stat. 2835, as amended 

by Pub. L. 104–134, 110 Stat. 1321, 1321–349 

(42 U.S.C. 2243); sec. 1704, 112 Stat. 2750 (44 

U.S.C. 3504 note); Energy Policy Act of 2005, 

Pub. L. No. 109–59, 119 Stat. 594 (2005). 

Section 40.7 also issued under Pub. L. 95–

601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). 

Section 40.31(g) also issued under sec. 122, 

68 Stat. 939 (42 U.S.C. 2152). Section 40.46 

also issued under sec. 184, 68 Stat. 954, as 

amended (42 U.S.C. 2234). Section 40.71 also 

issued under sec. 187, 68 Stat. 955 (42 U.S.C. 

2237). 

12. In § 40.31, paragraph (m) is added 

to read as follows: 

§ 40.31 Application for specific licenses. 

* * * * * 

(m) Each applicant for a license for 

the possession of source material at a 

facility for the production of uranium 

hexafluoride shall protect Safeguards 

Information against unauthorized 

disclosure in accordance with the 

requirements in §§ 73.21 and 73.22 of 

this chapter, as applicable. Each 

applicant for a license for source 

material subject to the requirements of 

part 73 of this chapter shall protect 

Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements in § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable. 

13. In § 40.41, paragraph (h) is added 

to read as follows: 

§ 40.41 Terms and conditions of licenses. 

* * * * * 

(h) Each licensee subject to the 

requirements of part 73 of this chapter 

shall ensure that Safeguards Information 

is protected against unauthorized 

disclosure in accordance with the 

requirements in § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable. 

PART 50—DOMESTIC LICENSING OF 

PRODUCTION AND UTILIZATION 

FACILITIES 

14. The authority citation for part 50 

is revised to read as follows: 

Authority: Secs. 102, 103, 104, 105, 161, 

182, 183, 186, 189, 68 Stat. 936, 937, 938, 

948, 953, 954, 955, 956, as amended, sec. 

234, 83 Stat. 444, as amended (42 U.S.C. 

2132, 2133, 2134, 2135, 2201, 2232, 2233, 

2236, 2239, 2282); secs. 201, as amended, 

202, 206, 88 Stat. 1242, as amended, 1244, 

1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 

112 Stat. 2750 (44 U.S.C. 3504 note); Energy 

Policy Act of 2005, Pub. L. No. 109–58, 119 

Stat. 594 (2005). Section 50.7 also issued 

under Pub. L. 95–601, sec. 10, 92 Stat. 2951 

(42 U.S.C. 5841). Section 50.10 also issued 

under secs. 101, 185, 68 Stat. 955, as 

amended (42 U.S.C. 2131, 2235); sec. 102, 

Pub. L. 91–190, 83 Stat. 853 (42 U.S.C. 4332). 

Sections 50.13, 50.54(dd), and 50.103 also 

issued under sec. 108, 68 Stat. 939, as 

amended (42 U.S.C. 2138). 

Sections 50.23, 50.35, 50.55, and 50.56 also 

issued under sec. 185, 68 Stat. 955 (42 U.S.C. 

2235). Sections 50.33a, 50.55a and Appendix 

Q also issued under sec. 102, Pub. L. 91–190, 

83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 

and 50.54 also issued under sec. 204, 88 Stat. 

1245 (42 U.S.C. 5844). Sections 50.58, 50.91, 

and 50.92 also issued under Pub. L. 97–415, 

96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 

also issued under sec. 122, 68 Stat. 939 (42 

U.S.C. 2152). Sections 50.80—50.81 also 

issued under sec. 184, 68 Stat. 954, as 

amended (42 U.S.C. 2234). Appendix F also 

issued under sec. 187, 68 Stat. 955 (42 U.S.C. 

2237). 

15. In § 50.34, paragraph (e) is revised 

to read as follows: 

§ 50.34 Contents of applications; technical 

information. 

* * * * * 

(e) Each applicant for a license to 

operate a production or utilization 

facility shall protect Safeguards 

Information against unauthorized 

disclosure in accordance with the 

requirements in § 73.21 and the 

requirements in § 73.22 or § 73.23 of this 

chapter, as applicable. 

* * * * * 

16. In § 50.54, paragraph (v) is revised 

to read as follows: 

§ 50.54 Conditions of licenses. 

* * * * * 

(v) Each licensee subject to the 

requirements of part 73 of this chapter 

shall ensure that Safeguards Information 

is protected against unauthorized 

disclosure in accordance with the 

requirements in § 73.21 and the 

requirements in § 73.22 or § 73.23 of this 

chapter, as applicable. 

* * * * * 

PART 52—EARLY SITE PERMITS; 

STANDARD DESIGN 

CERTIFICATIONS; AND COMBINED 

LICENSES FOR NUCLEAR POWER 

PLANTS 

17. The authority citation for part 52 

is revised to read as follows: 

Authority: Sec. 161, 68 Stat. 948, as 

amended, sec. 274, 73 Stat. 688 (42 U.S.C. 

2201, 2021); sec. 201, 88 Stat. 1242, as 

amended (42 U.S.C. 5841); sec. 1704, 112 

Stat. 2750 (44 U.S.C. 3504 note); Energy 

Policy Act of 2005, Pub. L. No. 109–58, 119 

Stat. 594 (2005). Sections 150.3, 150.15, 

150.15a, 150.31, 150.32 also issued under 

secs. 11e(2), 81, 68 Stat. 923, 935, as 

amended, secs. 83, 84, 92 Stat. 3033, 3039 (42 

U.S.C. 2014e(2), 2111, 2113, 2114). Section 

150.14 also issued under sec. 53, 68 Stat. 930, 

as amended (42 U.S.C. 2073). Section 150.15 

also issued under secs. 135, 141, Pub. L. 97–

425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 

10161). Section 150.17a also issued under 

sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 

Section 150.30 also issued under sec. 234, 83 

Stat. 444 (42 U.S.C. 2282). 

18. In § 52.17, paragraph (d) is added 

to read as follows: 


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§ 52.17 Contents of applications. 

* * * * * 

(d) Each applicant for an early site 

permit under this part shall protect 

Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements in §§ 73.21 and 

73.22 of this chapter, as applicable. 

19. In § 52.47, paragraph (c) is added 

to read as follows: 

§ 52.47 Contents of applications. 

* * * * * 

(c) Each applicant for a standard 

design certification under this part shall 

protect Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements in §§ 73.21 and 

73.22 of this chapter, as applicable. 

20. In § 52.79, paragraph (e) is added 

to read as follows: 

§ 52.79 Contents of application; technical 

information. 

* * * * * 

(e) Each applicant for a combined 

license under this subpart shall protect 

Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements in §§ 73.21 and 

73.22 of this chapter, as applicable. 

PART 60—DISPOSAL OF HIGH-LEVEL 

RADIOACTIVE WASTES IN GEOLOGIC 

REPOSITORIES 

21. The authority citation for part 60 

is revised to read as follows: 

Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 

182, 183, 68 Stat. 929, 930, 932, 933, 935, 

948, 953, 954, as amended (42 U.S.C. 2071, 

2073, 2092, 2093, 2095, 2111, 2201, 2232, 

2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 

U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 

95–601, 92 Stat. 2951 (42 U.S.C. 2021a and 

5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 

(42 U.S.C. 4332); secs. 114, 121, Pub. L. 97–

425, 96 Stat. 2213g, 2228, as amended (42 

U.S.C. 10134, 10141), and Pub. L. 102–486, 

sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); 

sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 

note); Energy Policy Act of 2005, Pub. L. No. 

109–58, 119 Stat. 594 (2005). 

22. In § 60.21, paragraph (d) is added 

to read as follows: 

§ 60.21 Content of application. 

* * * * * 

(d) The applicant for a license to 

receive and possess source, special 

nuclear, and byproduct material at a 

geologic repository operations area 

sited, constructed, or operated in 

accordance with the Nuclear Waste 

Policy Act of 1982 shall protect 

Safeguards Information in accordance 

with the requirements in § 73.21 and the 

requirements in § 73.22 or § 73.23 of this 

chapter, as applicable, and shall protect 

classified information in accordance 

with the requirements of parts 25 and 95 

of this chapter, as applicable. 

23. In § 60.42, paragraph (d) is added 

to read as follows: 

§ 60.42 Conditions of license. 

* * * * * 

(d) The licensee shall ensure that 

Safeguards Information is protected 

against unauthorized disclosure in 

accordance with the requirements in 

§ 73.21 and the requirements in § 73.22 

or § 73.23 of this chapter, as applicable. 

The licensee shall ensure that classified 

information is protected in accordance 

with the requirements of parts 25 and 95 

of this chapter, as applicable. 

PART 63—DISPOSAL OF HIGH-LEVEL 

RADIOACTIVE WASTES IN A 

GEOLOGIC REPOSITORY AT YUCCA 

MOUNTAIN, NEVADA 

24. The authority citation for part 63 

is revised to read as follows: 

Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 

182, 183, 68 Stat. 929, 930, 932, 933, 935, 

948, 953, 954, as amended (42 U.S.C. 2071, 

2073, 2092, 2093, 2095, 2111, 2201, 2232, 

2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 

U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 

95–601, 92 Stat. 2951 (42 U.S.C. 2021a and 

5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 

(42 U.S.C. 4332); secs. 114, 121, Pub. L. 97–

425, 96 Stat. 2213g, 2238, as amended (42 

U.S.C. 10134, 10141), and Pub. L. 102–486, 

sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); 

sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 

note); Energy Policy Act of 2005, Pub. L. No. 

109–58, 119 Stat. 594 (2005). 

25. In § 63.21, paragraph (d) is added 

to read as follows: 

§ 63.21 Content of application. 

* * * * * 

(d) The applicant for a license to 

receive and possess source, special 

nuclear, and byproduct material at a 

geologic repository at Yucca Mountain, 

Nevada, shall protect Safeguards 

Information in accordance with the 

requirements in § 73.21, and the 

requirements in § 73.22, or § 73.23 of 

this chapter, as applicable, and shall 

protect classified information in 

accordance with the requirements of 

parts 25 and 95 of this chapter, as 

applicable. 

26. In § 63.42, paragraph (e) is added 

to read as follows: 

§ 63.42 Conditions of license. 

* * * * * 

(e) The licensee shall ensure that 

Safeguards Information is protected 

against unauthorized disclosure in 

accordance with the requirements in 

§ 73.21, and the requirements in § 73.22, 

or § 73.23 of this chapter, as applicable, 

and shall protect classified information 

in accordance with the requirements of 

parts 25 and 95 of this chapter, as 

applicable. 

PART 70—DOMESTIC LICENSING OF 

SPECIAL NUCLEAR MATERIAL 

27. The authority citation for part 70 

is revised to read as follows: 

Authority: Secs. 51, 53, 161, 182, 183, 68 

Stat. 929, 930, 948, 953, 954, as amended, 

sec. 234, 83 Stat. 444, as amended, (42 U.S.C. 

2071, 2073, 2201, 2232, 2233, 2282, 2297f); 

secs. 201, as amended, 202, 204, 206, 88 Stat. 

1242, as amended, 1244, 1245, 1246 (42 

U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 

Stat. 2835 as amended by Pub. L. 104–134, 

110 Stat. 1321, 1321–349 (42 U.S.C. 2243); 

sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 

note); Energy Policy Act of 2005, Pub. L. No. 

109–58, 119 Stat. 594 (2005). Sections 70.1(c) 

and 70.20a(b) also issued under secs. 135, 

141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 

U.S.C. 10155, 10161). 

Section 70.7 also issued under Pub. L. 95–

601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5851). 

Section 70.21(g) also issued under sec. 122, 

68 Stat. 939 (42 U.S.C. 2152). Section 70.31 

also issued under sec. 57d, Pub. L. 93–377, 

88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 

and 70.44 also issued under sec. 184, 68 Stat. 

954, as amended (42 U.S.C. 2234). Section 

70.81 also issued under secs. 186, 187, 68 

Stat. 955 (42 U.S.C. 2236, 2237). Section 

70.82 also issued under sec. 108, 68 Stat. 939, 

as amended (42 U.S.C. 2138). 

28. In § 70.22, paragraph (l) is revised 

to read as follows: 

§ 70.22 Contents of applications. 

* * * * * 

(l) Each applicant for a license shall 

protect Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements in § 73.21 and the 

requirements of § 73.22, or 73.23 of this 

chapter, as applicable, and shall protect 

classified information in accordance 

with the requirements of parts 25 and 95 

of this chapter, as applicable. 

* * * * * 

29. In § 70.32, paragraph (j) is revised 

to read as follows: 

§ 70.32 Conditions of licenses. 

* * * * * 

(j) Each licensee who possesses 

special nuclear material, or who 

transports, or delivers to a carrier for 

transport, a formula quantity of strategic 

special nuclear material, special nuclear 

material of moderate strategic 

significance, or special nuclear material 

of low strategic significance, or more 

than 100 grams of irradiated reactor fuel 

shall ensure that Safeguards Information 

is protected against unauthorized 

disclosure in accordance with the 

requirements in § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable, and shall protect 

classified information in accordance 


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with the requirements of parts 25 and 95 

of this chapter, as applicable. 

* * * * * 

PART 71—PACKAGING AND 

TRANSPORTATION OF RADIOACTIVE 

MATERIAL 

30. The authority citation for part 71 

is revised to read as follows: 

Authority: Secs. 53, 57, 62, 63, 81, 161, 

182, 183, 68 Stat. 930, 932, 933, 935, 948, 

953, 954, as amended, sec. 1701, 106 Stat. 

2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 

2093, 2111, 2201, 2232, 2233, 2297f); secs. 

201, as amended, 202, 206, 88 Stat. 1242, as 

amended, 1244, 1246 (42 U.S.C. 5841, 5842, 

5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 

3504 note); Energy Policy Act of 2005, Pub. 

L. No. 109–58, 119 Stat. 594 (2005). Section 

71.97 also issued under sec. 301, Pub. L. 96–

295, 94 Stat. 789–790. 

31. Section 71.11 is added to read as 

follows: 

§ 71.11 Protection of Safeguards 

Information. 

Each licensee, certificate holder, or 

applicant for a Certificate of Compliance 

for a transportation package for 

transport of irradiated reactor fuel, 

strategic special nuclear material, a 

critical mass of special nuclear material, 

or byproduct material in quantities 

determined by the Commission through 

order or regulation to be significant to 

the public health and safety or the 

common defense and security, shall 

protect Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements in § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable. 

PART 72—LICENSING 

REQUIREMENTS FOR THE 

INDEPENDENT STORAGE OF SPENT 

NUCLEAR FUEL, HIGH-LEVEL 

RADIOACTIVE WASTE, AND 

REACTOR-RELATED GREATER THAN 

CLASS C WASTE 

32. The authority citation for part 72 

is revised to read as follows: 

Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 

81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 

929, 930, 932, 933, 934, 935, 948, 953, 954, 

955, as amended, sec. 234, 83 Stat. 444, as 

amended (42 U.S.C. 2071, 2073, 2077, 2092, 

2093, 2095, 2099, 2111, 2201, 2232, 2233, 

2234, 2236, 2237, 2238, 2282); sec. 274, Pub. 

L. 86–373, 73 Stat. 688, as amended (42 

U.S.C. 2021); sec. 201, as amended, 202, 206, 

88 Stat. 1242, as amended, 1244, 1246 (42 

U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec. 

10, 92 Stat. 2951 as amended by Pub. L. 102–

486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 

5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 

(42 U.S.C. 4332); secs. 131, 132, 133, 135, 

137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230, 

2232, 2241, sec. 148, Pub. L. 100–203, 101 

Stat. 1330–235 (42 U.S.C. 10151, 10152, 

10153, 10155, 10157, 10161, 10168); sec. 

1704, 112 Stat. 2750 (44 U.S.C. 3504 note); 

Energy Policy Act of 2005, Pub. L. No. 109–

58, 119 Stat. 549 (2005). 

Section 72.44(g) also issued under secs. 

142(b) and 148(c), (d), Pub. L. 100–203, 101 

Stat. 1330–232, 1330–236 (42 U.S.C. 

10162(b), 10168(c), (d)). Section 72.46 also 

issued under sec. 189, 68 Stat. 955 (42 U.S.C. 

2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 

(42 U.S.C. 10154). Section 72.96(d) also 

issued under sec. 145(g), Pub. L. 100–203, 

101 Stat. 1330–235 (42 U.S.C. 10165(g)). 

Subpart J also issued under secs. 2(2), 2(15), 

2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat. 

2202, 2203, 2204, 2222, 2224 (42 U.S.C. 

10101, 10137(a), 10161(h)). Subparts K and L 

are also issued under sec. 133, 98 Stat. 2230 

(42 U.S.C. 10153) and sec. 218(a), 96 Stat. 

2252 (42 U.S.C. 10198). 

33. In § 72.22, paragraph (f) is added 

to read as follows: 

§ 72.22 Contents of application: General 

and financial information. 

* * * * * 

(f) Each applicant for a license under 

this part to receive, transfer, and possess 

power reactor spent fuel, power reactorrelated Greater than Class C (GTCC) 

waste, and other radioactive materials 

associated with spent fuel storage in an 

independent spent fuel storage 

installation (ISFSI) shall protect 

Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements in § 73.21 and the 

requirements of § 73.22 or § 73.23, as 

applicable. 

34. In § 72.44, paragraph (h) is added 

to read as follows: 

§ 72.44 License conditions. 

* * * * * 

(h) Each licensee subject to the 

requirements of part 73 of this chapter 

shall protect Safeguards Information 

against unauthorized disclosure in 

accordance with the requirements of 

§ 73.21 and the requirements of § 73.22 

or § 73.23, as applicable. 

35. In § 72.212, paragraph (b)(5)(v) is 

redesignated as (b)(5)(vi) and a new 

paragraph (b)(5)(v) is added to read as 

follows: 

§ 72.212 Conditions of general license 

issued under § 72.210. 

* * * * * 

(b) * * * 

(5) * * * 

(v) Each general licensee that receives 

and possesses power reactor spent fuel 

and other radioactive materials 

associated with spent fuel storage shall 

protect Safeguards Information against 

unauthorized disclosure in accordance 

with the requirements of § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable. 

* * * * * 

36. In § 72.236, paragraph (n) is added 

to read as follows: 

§ 72.236 Specific requirements for spent 

fuel storage cask approval and fabrication. 

* * * * * 

(n) Safeguards Information shall be 

protected against unauthorized 

disclosure in accordance with the 

requirements of § 73.21 and the 

requirements of § 73.22 or § 73.23 of this 

chapter, as applicable. 

PART 73—PHYSICAL PROTECTION OF 

PLANTS AND MATERIALS 

37. The authority citation for part 73 

is revised to read as follows: 

Authority: Secs. 53, 161, 149, 68 Stat. 930, 

948, as amended, sec. 147, 94 Stat. 780 (42 

U.S.C. 2073, 2167, 2169, 2201); sec. 201, as 

amended, 204, 88 Stat. 1242, as amended, 

1245, sec. 1701, 106 Stat. 2951, 2952, 2953 

(42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 

Stat. 2750 (44 U.S.C. 3504 note); Energy 

Policy Act of 2005, Pub. L. No. 109–58, 119 

Stat. 594 (2005). 

Section 73.1 also issued under secs. 135, 

141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 

U.S.C. 10155, 10161). Section 73.37(f) also 

issued under sec. 301, Pub. L. 96–295, 94 

Stat. 789 (42 U.S.C. 5841 note). Section 73.57 

is issued under sec. 606, Pub. L. 99–399, 100 

Stat. 876 (42 U.S.C. 2169). 

38. In § 73.1, paragraph (b)(7) is 

revised to read as follows: 

§ 73.1 Purpose and scope. 

* * * * * 

(b) * * * 

(7) This part prescribes requirements 

for the protection of Safeguards 

Information (including the designation 

or marking: Safeguards Information—

Modified Handling) in the hands of any 

person, whether or not a licensee of the 

Commission, who produces, receives, or 

acquires that information. 

* * * * * 

39. In § 73.2, new definitions 

Background Check, Individual 

Authorized Access to Safeguards 

Information, Individual Authorized 

Access to Safeguards Information—

Modified Handling, Quantities of 

Concern, Safeguards Information—

Modified Handling, and 

Trustworthiness and Reliability, are 

added in alphabetical order and the 

definitions of Safeguards Information 

and ‘‘Need to Know’’ are revised to read 

as follows: 

§ 73.2 Definitions. 

* * * * * 

Background check includes, at a 

minimum, a criminal history check, 

verification of identity, employment 

history, education, and personal 

references. Individuals engaged in 

activities subject to regulation by the 


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Commission, applicants for licenses to 

engage in Commission-regulated 

activities, and individuals who have 

notified the Commission in writing of 

an intent to file an application for 

licensing, certification, permitting, or 

approval of a product or activity subject 

to regulation by the Commission are 

required under § 73.57 to conduct 

criminal history checks before granting 

access to Safeguards Information. A 

background check must be sufficient to 

support the trustworthiness and 

reliability determination so that the 

person performing the check and the 

Commission have assurance that 

granting individuals access to 

Safeguards Information does not 

constitute an unreasonable risk to the 

public health and safety or the common 

defense and security. 

* * * * * 

Individual Authorized Access to 

Safeguards Information is an individual 

authorized to have access to and handle 

such information pursuant to the 

requirements of §§ 73.21 and 73.22. 

Individual Authorized Access to 

Safeguards Information—Modified 

Handling is an individual authorized to 

have access to and handle such 

information pursuant to the 

requirements of §§ 73.21 and 73.23 of 

this chapter. 

* * * * * 

‘‘Need to Know’’ means a 

determination by a person having 

responsibility for protecting Safeguards 

Information that a proposed recipient’s 

access to Safeguards Information is 

necessary in the performance of official, 

contractual, licensee, applicant, or 

certificate holder employment. In an 

adjudication, ‘‘need to know’’ means a 

determination by the originator of the 

information that the information is 

necessary to enable the proposed 

recipient to proffer and/or adjudicate a 

specific contention in that proceeding, 

and the proposed recipient of the 

specific Safeguards Information 

possesses demonstrable knowledge, 

skill, training, or education to 

effectively utilize the specific 

Safeguards Information in the 

proceeding. Where the information is in 

the possession of the originator and the 

NRC staff (dual possession), whether in 

its original form or incorporated into 

another document by the recipient, the 

NRC staff makes the determination. In 

the event of a dispute regarding the 

‘‘need to know’’ determination, the 

presiding officer of the proceeding shall 

make the ‘‘need to know’’

determination. 

* * * * * 

Quantities of Concern means the 

quantities of the radionuclides meeting 

or exceeding the threshold limits set 

forth in Table I–1 of Appendix I of this 

part. 

* * * * * 

Safeguards Information means 

information not classified as National 

Security Information or Restricted Data 

which specifically identifies a licensee’s 

or applicant’s detailed control and 

accounting procedures for the physical 

protection of special nuclear material in 

quantities determined by the 

Commission through order or regulation 

to be significant to the public health and 

safety or the common defense and 

security; detailed security measures 

(including security plans, procedures, 

and equipment) for the physical 

protection of source, byproduct, or 

special nuclear material in quantities 

determined by the Commission through 

order or regulation to be significant to 

the public health and safety or the 

common defense and security; security 

measures for the physical protection of 

and location of certain plant equipment 

vital to the safety of production or 

utilization facilities; and any other 

information within the scope of Section 

147 of the Atomic Energy Act of 1954, 

as amended, the unauthorized 

disclosure of which, as determined by 

the Commission through order or 

regulation, could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 

security by significantly increasing the 

likelihood of sabotage or theft or 

diversion of source, byproduct, or 

special nuclear material. 

Safeguards Information—Modified 

Handling is the designation or marking 

applied to Safeguards Information 

which the Commission has determined 

requires handling requirements 

modified from the specific Safeguards 

Information handling requirements. 

* * * * * 

Trustworthiness and reliability are 

characteristics of an individual 

considered dependable in judgment, 

character, and performance, such that 

disclosure of Safeguards Information to 

that individual does not constitute an 

unreasonable risk to the public health 

and safety or common defense and 

security. A determination of 

trustworthiness and reliability is based 

upon a background check. 

* * * * * 

40. Section 73.8(b) is revised to read 

as follows: 

§ 73.8 Information collection 

requirements: OMB approval. 

* * * * * 

(b) The approved information 

collection requirements contained in 

this part appear in §§ 73.5, 73.20, 73.21, 

73.22, 73.23, 73.24, 73.25, 73.26, 73.27, 

73.37, 73.40, 73.45, 73.46, 73.50, 73.55, 

73.56, 73.57, 73.60, 73.67, 73.70, 73.71, 

73.72, 73.73, 73.74, and appendices B, 

C, and G. 

41. Section 73.21 is revised to read as 

follows: 

§ 73.21 Protection of Safeguards 

Information: Performance Requirements. 

(a) General performance requirement. 

(1) Each licensee, applicant, or other 

person who produces, receives, or 

acquires Safeguards Information shall 

ensure that it is protected against 

unauthorized disclosure. To meet this 

general performance requirement, such 

licensees, applicants, or other persons 

subject to this section shall: 

(i) Establish, implement, and maintain 

an information protection system that 

includes the applicable measures for 

Safeguards Information specified in 

§ 73.22 related to: Power reactors; a 

formula quantity of strategic special 

nuclear material; transportation of or 

delivery to a carrier for transportation of 

a formula quantity of strategic special 

nuclear material or more than 100 grams 

of irradiated reactor fuel; uranium 

hexafluoride production facilities; fuel 

fabrication facilities; uranium 

enrichment facilities; independent spent 

fuel storage installations; and geologic 

repository operations areas. 

(ii) Establish, implement, and 

maintain an information protection 

system that includes the applicable 

measures for Safeguards Information 

specified in § 73.23 related to: 

Panoramic and underwater irradiators 

that possess greater than 370 TBq 

(10,000 Ci) of byproduct material in the 

form of sealed sources; manufacturers 

and distributors of items containing 

source, byproduct, or special nuclear 

material in greater than or equal to 

Category 2 quantities of concern; 

research and test reactors that possess 

special nuclear material of moderate 

strategic significance or special nuclear 

material of low strategic significance; 

and transportation of greater than or 

equal to Category 2 quantities of 

concern. 

(2) Information protection procedures 

employed by Federal, State, and local 

law enforcement agencies are presumed 

to meet the general performance 

requirement in § 73.21(a)(1). 

(b) Commission Authority. (1) 

Pursuant to Section 147 of the Atomic 

Energy Act of 1954, as amended, the 


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Commission may impose, by order or 

regulation, Safeguards Information 

protection requirements different from 

or in addition to those specified in this 

part on any person who produces, 

receives, or acquires Safeguards 

Information. 

(2) The Commission may require, by 

regulation or order, that information 

within the scope of Section 147 of the 

Atomic Energy Act of 1954, as amended, 

related to facilities or materials not 

specifically described in §§ 73.21, 73.22 

or 73.23 be protected under this part. 

42. Section 73.22 is added to read as 

follows: 

§ 73.22 Protection of Safeguards 

Information: Specific Requirements. 

This section contains specific 

requirements for the protection of 

Safeguards Information related to power 

reactors; a formula quantity of strategic 

special nuclear material; transportation 

of or delivery to a carrier for 

transportation of a formula quantity of 

strategic special nuclear material or 

more than 100 grams of irradiated 

reactor fuel; uranium hexafluoride 

production facilities, fuel fabrication 

facilities, and uranium enrichment 

facilities; independent spent fuel storage 

installations; and geologic repository 

operations areas. 

(a) Information to be protected. The 

types of information and documents 

that must be protected as Safeguards 

Information include non-public 

security-related requirements such as: 

(1) Physical Protection. Information 

not classified as Restricted Data or 

National Security Information related to 

physical protection, including: 

(i) The composite physical security 

plan for the facility or site; 

(ii) Site specific drawings, diagrams, 

sketches, or maps that substantially 

represent the final design features of the 

physical security system not easily 

discernible by members of the public; 

(iii) Alarm system layouts showing 

the location of intrusion detection 

devices, alarm assessment equipment, 

alarm system wiring, emergency power 

sources for security equipment, and 

duress alarms not easily discernible by 

members of the public; 

(iv) Physical security orders and 

procedures issued by the licensee for 

members of the security organization 

detailing duress codes, patrol routes and 

schedules, or responses to security 

contingency events; 

(v) Site-specific design features of 

plant security communications systems; 

(vi) Lock combinations, mechanical 

key design, or passwords integral to the 

physical security system; 

(vii) Documents and other matter that 

contain lists or locations of certain 

safety-related equipment explicitly 

identified in the documents as vital for 

purposes of physical protection, as 

contained in security plans, contingency 

measures, or plant specific safeguards 

analyses; 

(viii) The composite safeguards 

contingency plan/measures for the 

facility or site; 

(ix) The composite facility guard 

qualification and training plan/ 

measures disclosing features of the 

physical security system or response 

procedures; 

(x) Information relating to on-site or 

off-site response forces, including size, 

armament of response forces, and arrival 

times of such forces committed to 

respond to security contingency events; 

(xi) The Adversary Characteristics 

Document or other implementing 

guidance associated with the Design 

Basis Threat in § 73.1; and 

(xii) Engineering and safety analyses, 

security-related procedures or scenarios, 

and other information revealing sitespecific details of the facility or 

materials if the unauthorized disclosure 

of such analyses, procedures, scenarios, 

or other information could reasonably 

be expected to have a significant 

adverse effect on the health and safety 

of the public or the common defense 

and security by significantly increasing 

the likelihood of theft, diversion, or 

sabotage of source, byproduct, or special 

nuclear material. 

(2) Physical protection in transit. 

Information not classified as Restricted 

Data or National Security Information 

related to the transportation of, or 

delivery to a carrier for transportation of 

a formula quantity of strategic special 

nuclear material or more than 100 grams 

of irradiated reactor fuel, including: 

(i) The composite physical security 

plan for transportation; 

(ii) Schedules and itineraries for 

specific shipments of source material, 

byproduct material, high-level nuclear 

waste, or irradiated reactor fuel. 

Schedules for shipments of source 

material, byproduct material, high-level 

nuclear waste, or irradiated reactor fuel 

are no longer controlled as Safeguards 

Information 10 days after the last 

shipment of a current series; 

(iii) Vehicle immobilization features, 

intrusion alarm devices, and 

communications systems; 

(iv) Arrangements with and 

capabilities of local police response 

forces, and locations of safe havens; 

(v) Limitations of communications 

during transport; 

(vi) Procedures for response to 

security contingency events; 

(vii) Information concerning the 

tactics and capabilities required to 

defend against attempted sabotage, or 

theft and diversion of formula quantities 

of special nuclear material, irradiated 

reactor fuel, or related information; and 

(viii) Engineering or safety analyses, 

security-related procedures or scenarios 

and other information related to the 

protection of the transported material if 

the unauthorized disclosure of such 

analyses, procedures, scenarios, or other 

information could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 

security by significantly increasing the 

likelihood of theft, diversion, or 

sabotage of source, byproduct, or special 

nuclear material. 

(3) Inspections, audits and 

evaluations. Information not classified 

as National Security Information or 

Restricted Data pertaining to safeguards 

and security inspections and reports, 

including: 

(i) Portions of inspection reports, 

evaluations, audits, or investigations 

that contain details of a licensee’s or 

applicant’s physical security system or 

that disclose uncorrected defects, 

weaknesses, or vulnerabilities in the 

system. Disclosure of corrected defects, 

weaknesses, or vulnerabilities is subject 

to an assessment taking into account 

such factors as trending analyses and 

the impacts of disclosure on licensees 

having similar physical security 

systems; and 

(ii) Reports of investigations 

containing general information may be 

released after corrective actions have 

been completed, unless withheld 

pursuant to other authorities, e.g., the 

Freedom of Information Act (5 U.S.C. 

552). 

(4) Correspondence. Portions of 

correspondence insofar as they contain 

Safeguards Information as set forth in 

paragraphs (a)(1) through (a)(3) of this 

section. 

(5) Other information within the 

scope of Section 147 of the Atomic 

Energy Act of 1954, as amended, that 

the Commission determines by order or 

regulation could reasonably be expected 

to have a significant adverse effect on 

the health and safety of the public or the 

common defense and security by 

significantly increasing the likelihood of 

theft, diversion, or sabotage of source, 

byproduct, or special nuclear material 

or a facility. 

(b) Conditions for access. 

(1) Except as the Commission may 

otherwise authorize, no person may 

have access to Safeguards Information 

unless the person has an established 

‘‘need to know’’ for the information and 

has undergone a Federal Bureau of 


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Investigation criminal history check 

using the procedures set forth in § 73.57. 

(2) In addition, a person to be granted 

access to SGI must be trustworthy and 

reliable, based on a background check or 

other means approved by the 

Commission. 

(3) The categories of individuals 

specified in 10 CFR 73.59 are exempt 

from the criminal history and 

background check requirements in 

paragraphs (b)(1) and (b)(2) of this 

section by virtue of their occupational 

status: 

(4) For persons participating in an 

NRC adjudicatory proceeding other than 

those specified in § 73.59, the ‘‘need to 

know’’ determination shall be made by 

the originator of the Safeguards 

Information upon receipt of a request for 

access to the Safeguards Information. 

Where the information is in the 

possession of the originator and the 

NRC staff, whether in its original form 

or incorporated into another document 

by the recipient, the NRC staff shall 

make the determination. In the event of 

a dispute regarding the ‘‘need to know’’

determination, the presiding officer of 

the proceeding shall determine whether 

the ‘‘need to know’’ findings in § 73.2 

can be made. 

(5) Except as the Commission may 

otherwise authorize, no person may 

disclose Safeguards Information to any 

other person except as set forth in this 

section. 

(c) Protection while in use or storage. 

(1) While in use, matter containing 

Safeguards Information must be under 

the control of an individual authorized 

access to Safeguards Information. This 

requirement is satisfied if the 

Safeguards Information is attended by 

such an individual even though the 

information is in fact not constantly 

being used. Safeguards Information 

within alarm stations, or rooms 

continuously occupied by authorized 

individuals need not be stored in a 

locked security storage container. 

(2) While unattended, Safeguards 

Information must be stored in a locked 

security storage container. The 

container shall not identify the contents 

of the matter contained and must 

preclude access by individuals not 

authorized access in accordance with 

the provisions of this section. 

Knowledge of lock combinations 

protecting Safeguards Information must 

be limited to a minimum number of 

personnel for operating purposes who 

have a ‘‘need to know’’ and are 

otherwise authorized access to 

Safeguards Information in accordance 

with the provisions of this part. Access 

to lock combinations must be strictly 

controlled so as to prevent disclosure to 

an individual not authorized access to 

Safeguards Information. 

(d) Preparation and marking of 

documents or other matter. 

(1) Each document or other matter 

that contains Safeguards Information as 

described in § 73.21(a)(1)(i) and this 

section must be marked to indicate the 

presence of such information in a 

conspicuous manner on the top and 

bottom of each page. The first page of 

the document must also contain: 

(i) The name, title, and organization of 

the individual authorized to make a 

Safeguards Information determination, 

and who has determined that the 

document contains Safeguards 

Information; 

(ii) The date the determination was 

made; and 

(iii) An indication that unauthorized 

disclosure will be subject to civil and 

criminal sanctions. 

(2) In addition to the markings at the 

top and bottom of each page, any 

transmittal letters or memoranda to or 

from the NRC which do not in 

themselves contain Safeguards 

Information shall be marked to indicate 

that attachments or enclosures contain 

Safeguards Information but that the 

transmittal document does not (i.e., 

‘‘When separated from Safeguards 

Information enclosure(s), this document 

is decontrolled’’). 

(3) Any transmittal document 

forwarding Safeguards Information must 

alert the recipient that protected 

information is enclosed. Certification 

that a document or other media contains 

Safeguards Information must include 

the name and title of the certifying 

official and date designated. Portion 

marking is required only for 

correspondence to and from the NRC 

(i.e., cover letters, but not attachments) 

that contains Safeguards Information. 

The portion marking must be sufficient 

to allow the recipient to identify and 

distinguish those sections of the 

transmittal document or other 

information containing the Safeguards 

Information from non-Safeguards 

Information. 

(4) Marking of documents containing 

or transmitting Safeguards Information 

shall, at a minimum include the words 

‘‘Safeguards Information’’ to ensure 

identification of protected information 

for the protection of facilities and 

material covered by § 73.22. 

(e) Reproduction of matter containing 

Safeguards Information. Safeguards 

Information may be reproduced to the 

minimum extent necessary consistent 

with need without permission of the 

originator. Equipment used to reproduce 

Safeguards Information must be 

evaluated to ensure that unauthorized 

individuals cannot access Safeguards 

Information (e.g., unauthorized 

individuals cannot access SGI by 

gaining access to retained memory or 

network connectivity). 

(f) External transmission of 

documents and material. 

(1) Documents or other matter 

containing Safeguards Information, 

when transmitted outside an authorized 

place of use or storage, must be 

packaged in two sealed envelopes or 

wrappers to preclude disclosure of the 

presence of protected information. The 

inner envelope or wrapper must contain 

the name and address of the intended 

recipient and be marked on both sides, 

top and bottom, with the words 

‘‘Safeguards Information.’’ The outer 

envelope or wrapper must be opaque, 

addressed to the intended recipient, 

must contain the address of the sender, 

and may not bear any markings or 

indication that the document contains 

Safeguards Information. 

(2) Safeguards Information may be 

transported by any commercial delivery 

company that provides service with 

computer tracking features, U.S. first 

class, registered, express, or certified 

mail, or by any individual authorized 

access pursuant to these requirements. 

(3) Except under emergency or 

extraordinary conditions, Safeguards 

Information shall be transmitted outside 

an authorized place of use or storage 

only by (a) NRC approved secure 

electronic devices, such as facsimiles or 

telephone devices, provided that 

transmitters and receivers implement 

processes that will provide high 

assurance that Safeguards Information is 

protected before and after the 

transmission or (b) electronic mail 

through the internet, provided that (i) 

the information is encrypted by the 

NRC-approved encryption modules and 

algorithms; (ii) the information is 

produced by a self contained secure 

automatic data process system; and (iii) 

transmitters and receivers implement 

the information handling processes that 

will provide high assurance that 

Safeguards Information is protected 

before and after transmission. Physical 

security events required to be reported 

pursuant to § 73.71 are considered to be 

extraordinary conditions. 

(g) Processing of Safeguards 

Information on electronic systems. 

(1) Safeguards Information may be 

stored, processed or produced on a 

stand-alone computer (or computer 

system) for processing of Safeguards 

Information. ‘‘Stand-alone’’ means a 

computer or computer system to which 

access is limited to individuals 

authorized access to Safeguards 

Information. A stand-alone computer or 


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computer system shall not be physically 

or in any other way connected to a 

network accessible by users who are not 

authorized access to Safeguards 

Information. 

(2) Each computer not located within 

an approved and lockable security 

storage container that is used to process 

Safeguards Information must have a 

removable storage medium with a 

bootable operating system. The bootable 

operating system must be used to load 

and initialize the computer. The 

removable storage medium must also 

contain the software application 

programs, and all data must be 

processed and saved on the same 

removable storage medium. The 

removable storage medium must be 

secured in a locked security storage 

container when not in use. 

(3) A mobile device (such as a laptop 

computer) may also be used for the 

processing of Safeguards Information 

provided the device is secured in a 

locked security storage container when 

not in use. Other systems may be used 

if approved for security by the 

appropriate NRC office. 

(h) Removal from Safeguards 

Information category. Documents 

originally containing Safeguards 

Information must be removed from the 

Safeguards Information category at such 

time as the information no longer meets 

the criteria contained in this part. A 

review of such documents to make that 

determination shall be conducted every 

10 years. Documents that are 10 years or 

older and designated as SGI or SGI–M 

shall be reviewed for a decontrol 

determination if they are currently in 

use or removed from storage. Care must 

be exercised to ensure that any 

document decontrolled not disclose 

Safeguards Information in some other 

form or be combined with other 

unprotected information to disclose 

Safeguards Information. The authority 

to determine that a document may be 

decontrolled shall be exercised only by 

the NRC or with NRC approval, or if 

possible, in consultation with the 

individual or organization that made the 

original determination. 

(i) Destruction of matter containing 

Safeguards Information. Documents or 

other media containing Safeguards 

Information shall be destroyed when no 

longer needed. The information can be 

destroyed by burning, shredding or any 

other method that precludes 

reconstruction by means available to the 

public at large. Piece sizes no wider 

than one quarter inch composed of 

several pages or documents and 

thoroughly mixed are considered 

completely destroyed. 

43. Section 73.23 is added to read as 

follows: 

§ 73.23 Protection of Safeguards 

Information-Modified Handling: Specific 

Requirements. 

This section contains specific 

requirements for the protection of 

Safeguards Information related to 

panoramic and underwater irradiators 

that possess greater than 370 TBq 

(10,000 Ci) of byproduct material in the 

form of sealed sources; manufacturers 

and distributors of items containing 

source, byproduct, or special nuclear 

material in greater than or equal to 

Category 2 quantities of concern; 

transportation of more than 1,000 Tbq 

(27,000 Ci) but less than or equal to 100 

grams of spent nuclear fuel; research 

and test reactors that possess special 

nuclear material of moderate strategic 

significance or special nuclear material 

of low strategic significance; and 

transportation of greater than or equal to 

Category 2 quantities of concern. The 

requirements of this section distinguish 

Safeguards Information requiring 

modified handling requirements (SGI–

M) from Safeguards Information for 

facilities and materials needing a higher 

level of protection, as set forth in 

§ 73.22. 

(a) Information to be protected. The 

types of information and documents 

that must be protected as Safeguards 

Information-Modified Handling include 

non-public security-related 

requirements such as protective 

measures, interim compensatory 

measures, additional security measures, 

and the following, as applicable: 

(1) Physical Protection. Information 

not classified as Restricted Data or 

National Security Information related to 

physical protection, including: 

(i) The composite physical security 

plan for the facility or site; 

(ii) Site specific drawings, diagrams, 

sketches, or maps that substantially 

represent the final design features of the 

physical security system not easily 

discernible by members of the public; 

(iii) Alarm system layouts showing 

the location of intrusion detection 

devices, alarm assessment equipment, 

alarm system wiring, emergency power 

sources for security equipment, and 

duress alarms not easily discernible by 

members of the public; 

(iv) Physical security orders and 

procedures issued by the licensee for 

members of the security organization 

detailing duress codes, patrol routes and 

schedules, or responses to security 

contingency events; 

(v) Site specific design features of 

plant security communications systems; 

(vi) Lock combinations, mechanical 

key design, or passwords integral to the 

physical security system; 

(vii) The composite facility guard 

qualification and training plan/ 

measures disclosing features of the 

physical security system or response 

procedures; 

(viii) Descriptions of security 

activities which disclose features of the 

physical security system or response 

measures; 

(ix) Information relating to onsite or 

offsite response forces, including size, 

armament of the response forces, and 

arrival times of such forces committed 

to respond to security contingency 

events; and 

(x) Engineering and safety analyses, 

security-related procedures or scenarios, 

and other information revealing sitespecific details of the facility or 

materials if the unauthorized disclosure 

of such analyses, procedures, scenarios, 

or other information could reasonably 

be expected to have a significant 

adverse effect on the health and safety 

of the public or the common defense 

and security by significantly increasing 

the likelihood of theft, diversion, or 

sabotage of source, byproduct, or special 

nuclear material. 

(2) Physical protection in transit. 

Information not classified as Restricted 

Data or National Security Information 

related to the physical protection of 

shipments of more than 1000 Tbq 

(27,000 Ci) but less than or equal to 100 

grams of spent nuclear fuel, source 

material and byproduct material in 

Category 2 quantities of concern, and 

special nuclear material in less than a 

formula quantity (except for those 

materials covered under § 73.22), 

including: 

(i) Information regarding 

transportation security measures, 

including physical security plans and 

procedures, immobilization devices, 

and escort requirements, more detailed 

than NRC regulations; 

(ii) Scheduling and itinerary 

information for shipments (scheduling 

and itinerary information for shipments 

that are inherently self-disclosing, such 

as a shipment that created extensive 

news coverage or an announcement by 

a public official confirming receipt, may 

be decontrolled after shipment 

departure. Scheduling and itinerary 

information for shipments that are not 

inherently self-disclosing may be 

decontrolled 2 days after the shipment 

is completed. Scheduling and itinerary 

information used for the purpose of 

preplanning, coordination, and advance 

notification may be shared with others 

on a ‘‘need to know’’ basis and need not 


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be designated as Safeguards 

Information-Modified Handling); 

(iii) Arrangements with and 

capabilities of local police response 

forces, and locations of safe havens; 

(iv) Details of alarm and 

communication systems, 

communication procedures, and duress 

codes; 

(v) Procedures for response to security 

contingency events; and 

(vi) Engineering or safety analyses, 

security-related procedures or scenarios 

and other information related to the 

protection of the transported material if 

the unauthorized disclosure of such 

analyses, procedures, scenarios, or other 

information could reasonably be 

expected to have a significant adverse 

effect on the health and safety of the 

public or the common defense and 

security by significantly increasing the 

likelihood of theft, diversion, or 

sabotage of source, byproduct, or special 

nuclear material. 

(3) Inspections, audits and 

evaluations. Information not classified 

as National Security Information or 

Restricted Data pertaining to safeguards 

and security inspections and reports, 

including: 

(i) Portions of inspection reports, 

evaluations, audits, or investigations 

that contain details of a licensee’s or 

applicant’s physical security system or 

that disclose uncorrected defects, 

weaknesses, or vulnerabilities in the 

system. Disclosure of corrected defects, 

weaknesses, or vulnerabilities is subject 

to an assessment taking into account 

such factors as trending analyses and 

the impacts of disclosure on licensees 

having similar physical security 

systems; and 

(ii) Reports of investigations 

containing general information may be 

released after the corrective actions have 

been completed, unless withheld 

pursuant to other authorities, e.g., the 

Freedom of Information Act (5 U.S.C. 

552). 

(4) Correspondence. Portions of 

correspondence insofar as they contain 

Safeguards Information designated as 

Safeguards Information-Modifed 

Handling, as set forth in paragraphs 

(a)(1) through (a)(3) of this section. 

(5) Other information within the 

scope of Section 147 of the Atomic 

Energy Act of 1954, as amended, that 

the Commission determines by order or 

regulation could reasonably be expected 

to have a significant adverse effect on 

the health and safety of the public or the 

common defense and security by 

significantly increasing the likelihood of 

theft, diversion, or sabotage of source, 

byproduct, or special nuclear material 

or a facility. 

(b) Conditions for access, 

(1) Except as the Commission may 

otherwise authorize, no person may 

have access to Safeguards Information 

designated as Safeguards InformationModified Handling unless the person 

has an established ‘‘need to know’’ for 

the information and has undergone a 

Federal Bureau of Investigation criminal 

history check using the procedures set 

forth in § 73.57. 

(2) In addition, a person to be granted 

access to SGI must be trustworthy and 

reliable, based on a background check or 

other means approved by the 

Commission. 

(3) The categories of individuals 

specified in 10 CFR § 73.59 are exempt 

from the background check 

requirements in paragraphs (b)(1) and 

(b)(2) of this section by virtue of their 

occupational status: 

(4) For persons participating in an 

NRC adjudicatory proceeding other than 

those specified in § 73.59, the ‘‘need to 

know’’ determination shall be made by 

the originator of the Safeguards 

Information upon receipt of a request for 

access to the Safeguards Information. 

Where the information is in the 

possession of the originator and the 

NRC staff, whether in its original form 

or incorporated into another document 

by the recipient, the NRC staff shall 

make the determination. In the event of 

a dispute regarding the ‘‘need to know’’

determination, the presiding officer of 

the proceeding shall determine whether 

the ‘‘’need to know’’’ findings in § 73.2 

can be made. 

(5) Except as the Commission may 

otherwise authorize, no person may 

disclose Safeguards Information to any 

other person except as set forth in this 

section. 

(c) Protection while in use or storage. 

(1) While in use, matter containing 

Safeguards Information designated as 

Safeguards Information-Modified 

Handling must be under the control of 

an individual authorized access to such 

information. This requirement is 

satisfied if the Safeguards Information 

designated as Safeguards InformationModified Handling is attended by such 

an individual even though the 

information is in fact not constantly 

being used. Safeguards Information 

designated as Safeguards InformationModified Handling within alarm 

stations, or rooms continuously 

occupied by authorized individuals, 

need not be locked in a file drawer or 

cabinet. 

(2) While unattended, Safeguards 

Information designated as Safeguards 

Information-Modified Handling must be 

stored in a locked file drawer or cabinet. 

The container shall not identify the 

contents of the matter contained and 

must preclude access by individuals not 

authorized access in accordance with 

the provisions of this section. 

Knowledge of lock combinations or 

access to keys protecting Safeguards 

Information designated as Safeguards 

Information-Modified Handling must be 

limited to a minimum number of 

personnel for operating purposes who 

have a ‘‘need to know’’ and are 

otherwise authorized access to 

Safeguards Information in accordance 

with the provisions of this part. Access 

to lock combinations must be strictly 

controlled so as to prevent disclosure to 

an individual not authorized access to 

Safeguards Information designated as 

Safeguards Information-Modified 

Handling. 

(d) Preparation and marking of 

documents or other matter. 

(1) Each document or other matter 

that contains Safeguards Information 

designated as Safeguards InformationModified Handling as described in 

§ 73.23(a) and in this section must be 

marked to indicate the presence of 

Safeguards Information with modified 

handling requirements in a conspicuous 

manner on the top and bottom of each 

page. The first page of the document 

must also contain: 

(i) The name, title, and organization of 

the individual authorized to make a 

‘‘Safeguards Information designated as 

Safeguards Information-Modified 

Handling’’ determination, and who has 

determined that the document contains 

Safeguards Information designated as 

Safeguards Information-Modified 

Handling; 

(ii) The date the determination was 

made; and 

(iii) An indication that unauthorized 

disclosure will be subject to civil and 

criminal sanctions. 

(2) In addition to the markings at the 

top and bottom of each page, any 

transmittal letters or memoranda to or 

from the NRC which do not in 

themselves contain Safeguards 

Information designated as Safeguards 

Information-Modified Handling shall be 

marked to indicate that attachments or 

enclosures contain Safeguards 

Information designated as Safeguards 

Information-Modified Handling but that 

the transmittal document does not (i.e., 

‘‘When separated from Safeguards 

Information designated as Safeguards 

Information-Modified Handling 

enclosure(s), this document is 

decontrolled’’). 

(3) Any transmittal document 

forwarding Safeguards Information 

designated as Safeguards InformationModified Handling must alert the 

recipient that protected information is 


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enclosed. Certification that a document 

or other media contains Safeguards 

Information designated as Safeguards 

Information-Modified Handling must 

include the name and title of the 

certifying official and date designated. 

Portion marking is required only for 

correspondence to and from the NRC 

(i.e., cover letters, but not attachments) 

that contains Safeguards Information 

designated as Safeguards InformationModified Handling. The portion 

marking must be sufficient to allow the 

recipient to identify and distinguish 

those sections of the transmittal 

document or other information 

containing the Safeguards Information 

from non-Safeguards Information. 

(4) Marking of documents containing 

or transmitting Safeguards Information 

with modified handling requirements 

shall, at a minimum include the words 

‘‘Safeguards Information-Modified 

Handling’’ to ensure identification of 

protected information for the protection 

of facilities and material covered by 

§ 73.23. 

(e) Reproduction of matter containing 

Safeguards Information designated as 

Safeguards Information-Modified 

Handling. Safeguards Information 

designated as Safeguards InformationModified Handling may be reproduced 

to the minimum extent necessary, 

consistent with need, without 

permission of the originator. Equipment 

used to reproduce Safeguards 

Information designated as Safeguards 

Information-Modified Handling must be 

evaluated to ensure that unauthorized 

individuals cannot access the 

information (e.g., unauthorized 

individuals cannot access SGI by 

gaining access to retained memory or 

network connectivity). 

(f) External transmission of 

documents and material. 

(1) Documents or other matter 

containing Safeguards Information 

designated as Safeguards InformationModified Handling, when transmitted 

outside an authorized place of use or 

storage, must be packaged in two sealed 

envelopes or wrappers to preclude 

disclosure of the presence of protected 

information. The inner envelope or 

wrapper must contain the name and 

address of the intended recipient and be 

marked on both sides, top and bottom, 

with the words ‘‘Safeguards 

Information-Modified Handling.’’ The 

outer envelope or wrapper must be 

opaque, addressed to the intended 

recipient, must contain the address of 

the sender, and may not bear any 

markings or indication that the 

document contains Safeguards 

Information designated as Safeguards 

Information-Modified Handling. 

(2) Safeguards Information designated 

Safeguards Information-Modified 

Handling may be transported by any 

commercial delivery company that 

provides service with computer tracking 

features, U.S. first class, registered, 

express, or certified mail, or by any 

individual authorized access pursuant 

to these requirements. 

(3) Except under emergency or 

extraordinary conditions, Safeguards 

Information designated as Safeguards 

Information-Modified Handling must be 

transmitted electronically only by 

protected telecommunications circuits 

(including facsimile) or encryption 

(Federal Information Processing 

Standard [FIPS] 140–2 or later) 

approved by the appropriate NRC office. 

For the purpose of this section, 

emergency or extraordinary conditions 

are defined as any circumstances that 

require immediate communications in 

order to report, summon assistance for, 

or respond to a security contingency 

event or an event that has potential 

security significance. Physical security 

events required to be reported pursuant 

to § 73.71 are considered to be 

extraordinary conditions. 

(g) Processing of Safeguards 

Information-Modified Handling on 

electronic systems. 

(1) Safeguards Information designated 

for modified handling may be stored, 

processed or produced on a computer or 

computer system, provided that the 

system is assigned to the licensee’s or 

contractor’s facility. Safeguards 

Information designated as Safeguards 

Information-Modified Handling files 

must be protected, either by a password 

or encryption, to prevent unauthorized 

individuals from gaining access. Word 

processors such as typewriters are not 

subject to these requirements as long as 

they do not transmit information offsite. (Note: if Safeguards Information 

designated as Safeguards InformationModified Handling is produced on a 

typewriter, the ribbon must be removed 

and stored in the same manner as other 

Safeguards Information designated as 

Safeguards Information-Modified 

Handling.) 

(2) Safeguards Information designated 

as Safeguards Information-Modified 

Handling files may be transmitted over 

a network if the file is encrypted. In 

such cases, the licensee will select a 

commercially available encryption 

system that the National Institute of 

Standards and Technology (NIST) has 

validated as conforming to Federal 

Information Processing Standards 

(FIPS). Safeguards Information 

designated as Safeguards InformationModified Handling files shall be 

properly labeled to indicate the 

presence of Safeguards Information with 

modified handling requirements and 

saved to removable media and stored in 

a locked file drawer or cabinet. 

(3) A mobile device (such as a laptop 

computer) may also be used for the 

processing of Safeguards Information 

designated as Safeguards InformationModified Handling provided the device 

is secured in an appropriate locked 

storage container when not in use. Other 

systems may be used if approved for 

security by the appropriate NRC office. 

(h) Removal from Safeguards 

Information-Modified Handling 

category. Documents originally 

containing Safeguards Information 

designated as Safeguards InformationModified Handling must be removed 

from the Safeguards Information 

category at such time as the information 

no longer meets the criteria contained in 

this Part. A review of such documents 

to make that determination shall be 

conducted every 10 years. Documents 

that are 10 years or older and designated 

as SGI or SGI–M shall be reviewed for 

a decontrol determination if they are 

currently in use or removed from 

storage. Care must be exercised to 

ensure that any document decontrolled 

shall not disclose Safeguards 

Information in some other form or be 

combined with other unprotected 

information to disclose Safeguards 

Information. The authority to determine 

that a document may be decontrolled 

shall be exercised only by the NRC or 

with NRC approval, or if possible, in 

consultation with the individual or 

organization that made the original 

determination. 

(i) Destruction of matter containing 

Safeguards Information designated as 

Safeguards Information-Modified 

Handling. Documents or other media 

containing Safeguards Information shall 

be destroyed when no longer needed. 

The information can be destroyed by 

burning, shredding, or any other method 

that precludes reconstruction by means 

available to the public at large. Piece 

sizes no wider than one quarter inch 

composed of several pages or 

documents and thoroughly mixed are 

considered completely destroyed. 

44. In § 73.37, paragraphs (f)(2)(iv), 

(f)(3)(iii) and (iv), and (g) are revised as 

follows: 

§ 73.37 Requirement for the physical 

protection of irradiated reactor fuel in 

transit. 

(f) * * * 

(2) * * * 

(iv) A statement that the information 

described below in § 73.37(f)(3) is 

required by NRC regulations to be 


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64066 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

protected in accordance with the 

requirements of §§ 73.21 and 73.22. 

(3) * * * 

(iii) For the case of a single shipment 

whose schedule is not related to the 

schedule of any subsequent shipment, a 

statement that schedule information 

must be protected in accordance with 

the provisions of §§ 73.21 and 73.22 

until at least 10 days after the shipment 

has entered or originated within the 

state. 

(iv) For the case of a shipment in a 

series of shipments whose schedules are 

related, a statement that schedule 

information must be protected in 

accordance with the provisions of 

§§ 73.21 and 73.22 until 10 days after 

the last shipment in the series has 

entered or originated within the state 

and an estimate of the date on which the 

last shipment in the series will enter or 

originate within the state. 

* * * * * 

(g) State officials, state employees, 

and other individuals, whether or not 

licensees of the Commission, who 

receive schedule information of the kind 

specified in § 73.37(f)(3) shall protect 

that information against unauthorized 

disclosure as specified in §§ 73.21 and 

73.22. 

45. In § 73.57 paragraphs (a)(1) and (2) 

and (b)(2)(i) and (ii) are revised and 

paragraph (e)(3) is added to read as 

follows: 

§ 73.57 Requirements for criminal history 

checks of individuals granted unescorted 

access to a nuclear power facility or access 

to Safeguards Information. 

(a) General. (1) Each licensee who is 

authorized to operate a nuclear power 

reactor under part 50 or to engage in an 

activity subject to regulation by the 

Commission shall comply with the 

requirements of this section. 

(2) Each applicant for a license to 

operate a nuclear power reactor under 

part 50 of this chapter or to engage in 

an activity subject to regulation by the 

Commission, as well as each entity who 

has provided written notice to the 

Commission of intent to file an 

application for licensing, certification, 

permitting, or approval of a product 

subject to regulation by the Commission 

shall submit fingerprints for those 

individuals who will have access to 

Safeguards Information. 

(b) * * * 

(2) * * * 

(i) For unescorted access to the 

nuclear power facility or (but must 

adhere to provisions contained in 

§§ 73.21 and 73.22): NRC employees 

and NRC contractors on official agency 

business; individuals responding to a 

site emergency in accordance with the 

provisions of § 73.55(a); a representative 

of the International Atomic Energy 

Agency (IAEA) engaged in activities 

associated with the U.S./IAEA 

Safeguards Agreement at designated 

facilities who has been certified by the 

NRC; law enforcement personnel acting 

in an official capacity; State or local 

government employees who have had 

equivalent reviews of FBI criminal 

history data; and individuals employed 

at a facility who possess ‘‘Q’’ or ‘‘L’’

clearances or possess another active 

government granted security clearance, 

i.e, Top Secret, Secret, or Confidential; 

(ii) For access to Safeguards 

Information only but must adhere to 

provisions contained in §§ 73.21, 73.22, 

and 73.23: The categories of individuals 

specified in 10 CFR § 73.59. 

* * * * * 

(e) * * * 

(3) In addition to the right to obtain 

records from the FBI in paragraph (e)(1) 

of this section and the right to initiate 

challenge procedures in paragraph (e)(2) 

of this section, an individual 

participating in an NRC adjudication 

and seeking to obtain SGI for use in that 

adjudication may appeal a final adverse 

determination by the NRC Office of 

Administration to the Presiding Officer 

of the proceeding. Potential witnesses, 

participants without attorneys, and 

attorneys for whom the NRC Office of 

Administration has made a final adverse 

determination on trustworthiness and 

reliability may request that the 

Chairman of the Atomic Safety and 

Licensing Board Panel designate an 

officer other than the presiding officer of 

the proceeding to review the adverse 

determination. 

* * * * * 

46. In § 73.59 is revised to read as 

follows: 

§ 73.59. Relief from fingerprinting, 

identification and criminal history records 

checks and background checks for 

designated categories of individuals. 

Fingerprinting, and the identification 

and criminal history records checks 

required by section 149 of the Atomic 

Energy Act of 1954, as amended, and 

background checks are not required for 

the following individuals prior to 

granting access to Safeguards 

Information or Safeguards Information 

designated as Safeguards Information—

Modifed Handling as defined in 10 CFR 

73.2: 

(a) An employee of the Commission or 

the Executive Branch of the United 

States government who has undergone 

fingerprinting for a prior U.S. 

government criminal history check; 

(b) A member of Congress; 

(c) An employee of a member of 

Congress or Congressional committee 

who has undergone fingerprinting for a 

prior U.S. government criminal history 

check; 

(d) The Comptroller General or an 

employee of the Government 

Accountability Office who has 

undergone fingerprinting for a prior U.S. 

Government criminal history check. 

(e) The Governor of a State or his or 

her designated State employee 

representative; 

(f) A representative of a foreign 

government organization that is 

involved in planning for, or responding 

to, nuclear or radiological emergencies 

or security incidents who the 

Commission approves for access to 

Safeguards Information or Safeguards 

Information designated as Safeguards 

Information—Modifed Handling; 

(g) Federal, State, or local law 

enforcement personnel; 

(h) State Radiation Control Program 

Directors and State Homeland Security 

Advisors or their designated State 

employee representatives; 

(i) Agreement State employees 

conducting security inspections on 

behalf of the NRC pursuant to an 

agreement executed under section 274.i. 

of the Atomic Energy Act; 

(j) Representatives of the International 

Atomic Energy Agency (IAEA) engaged 

in activities associated with the U.S./ 

IAEA Safeguards Agreement who have 

been certified by the NRC; 

(k) Any agent, contractor, or 

consultant of the aforementioned 

persons who has undergone equivalent 

criminal history and background checks 

to those required by 10 CFR §§ 73.22(b) 

or 73.23(b). 

47. A new Appendix I to part 73 is 

added to read as follows: 

Appendix I to Part 73—Category 1 and 

2 Radioactive Materials 


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Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 64067 

TABLE I¥1.—QUANTITIES OF CONCERN THRESHOLD LIMITS

Radionuclides 

Category 1 Category 2 

Terabecquerels 

(TBq) 

Curies 

(Ci)1

Terabecquerels 

(TBq) 

Curies 

(Ci)1

Americium-241 ..................................................................................... 6×101 1.6×103 6×10¥1 1.6×101

Americium-241/Be ................................................................................ 6×101 1.6×103 6×10¥1 1.6×101

Californium-252 .................................................................................... 2×101 5.4×102 2×10¥1 5.4 

Curium-244 .......................................................................................... 5×101 1.4×103 5×10¥1 1.4×101

Cobalt-60 .............................................................................................. 3×101 8.1×102 3×10¥1 8.1 

Cesium-137 .......................................................................................... 1×102 2.7×103 1 2.7×101

Gadolinium-153 .................................................................................... 1×103 2.7×104 1×101 2.7×102

Iridium-192 ........................................................................................... 8×101 2.2×103 8×10¥1 2.2×101

Promethium-147 ................................................................................... 4×104 1.1×106 4×102 1.1×104

Plutonium-238 ...................................................................................... 6×101 1.6×103 6×10¥1 1.6×101

Plutonium-239/Be ................................................................................. 6×101 1.6×103 6×10¥1 1.6×101

Radium-226 .......................................................................................... 4×101 1.1×103 4×10¥1 1.1×101

Selenium-75 ......................................................................................... 2×102 5.4×103 2 5.4×101

Strontium-90 (Y-90) ............................................................................. 1×103 2.7×104 1×101 2.7×102

Thulium-170 ......................................................................................... 2×104 5.4×105 2×102 5.4×103

Ytterbium-169 ....................................................................................... 3×102 8.1×103 3 8.1×101

1The regulatory standard values are given in TBq. Curie (Ci) values are provided for practical usefulness only and are rounded after 

conversion. 

Calculations Concerning Multiple 

Sources or Multiple Radionuclides 

The ‘‘sum of fractions’’ methodology 

for evaluating combinations of multiple 

sources or multiple radionuclides, is to 

be used in determining whether a 

facility or activity meets or exceeds the 

threshold limits and is thus subject to 

the physical and/or information security 

requirements of this part. 

I. If multiple sources and/or multiple 

radionuclides are present in a facility or 

activity, the sum of the fractions of the 

activity of each of the radionuclides 

must be determined to verify the facility 

or activity is less than the Category 1 or 

2 limits of Table 1, as appropriate. 

Otherwise, if the calculated sum of the 

fractions ratio, using the following 

equation, is greater than or equal to 1.0, 

then the facility or activity meets or 

exceeds the threshold limits of Table 1 

and the applicable physical and/or 

information security provisions of this 

part apply. 

II. Use the equation below to calculate 

the sum of the fractions ratio by 

inserting the actual activity of the 

applicable radionuclides from Table 1 

or of the individual sources (of the same 

radionuclides from Table 1) in the 

numerator of the equation and the 

corresponding threshold activity limit 

from the Table 1 in the denominator of 

the equation. Sum of the fraction 

calculations must be performed in 

metric values (i.e., TBq) and the 

numerator and denominator values 

must be in the same units. 

R1 = activity for radionuclides or source 

number 1 

R2 = activity for radionuclides or source 

number 2 

Rn = activity for radionuclides or source 

number n 

AR1 = activity limit for radionuclides or 

source number 1 

AR2 = activity limit for radionuclides or 

source number 2 

ARn = activity limit for radionuclides or 

source number n 

R

AR

R

AR

R

AR

n

n

n

1

1

2

1 2

+ + 1 0 



 

 ∑  ≥ .

PART 76—CERTIFICATION OF 

GASEOUS DIFFUSION PLANTS 

48. The authority citation for part 76 

is revised to read as follows: 

Authority: Secs. 161, 68 Stat. 948, as 

amended, secs. 1312, 1701, as amended, 106 

Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321–

349 (42 U.S.C. 2201, 2297b–11, 2297f); secs. 

201, as amended, 204, 206, 88 Stat. 1244, 

1245, 1246 (42 U.S.C. 5841, 5842, 5845, 

5846). Sec 234(a), 83 Stat. 444, as amended 

by Pub. L. 104–134, 110 Stat. 1321, 1321–349 

(42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 

(44 U.S.C. 3504 note); Energy Policy Act of 

2005, Pub. L. No. 109–58, 119 Stat. 549 

(2005). Sec. 76.7 also issued under Pub. L. 

95–601. Sec. 10, 92 Stat 2951 (42 U.S.C. 

5851). Sec. 76.22 is also issued under sec. 

193(f), as amended, 104 Stat. 2835, as 

amended by Pub. L. 104–134, 110 Stat. 1321, 

1321–349 (42 U.S.C. 2243(f)). Sec. 76.35(j) 

also issued under sec. 122, 68 Stat. 939 (42 

U.S.C. 2152). 

49. In § 76.113, paragraph (c) is 

revised to read as follows: 

§ 76.113 Formula quantities of strategic 

special nuclear material—Category I. 

* * * * * 

(c) The requirements for the 

protection of Safeguards Information 

pertaining to formula quantities of 

strategic special nuclear material 

(Category I) are contained in §§ 73.21 

and 73.22 and parts 25 and 95 of this 

chapter. Information designated by the 

U.S. Department of Energy (DOE) as 

Unclassified Controlled Nuclear 

Information must be protected in 

accordance with DOE requirements. 

* * * * * 

50. In § 76.115, paragraph (d) is added 

to read as follows: 

§ 76.115 Special nuclear material of 

moderate strategic significance—

Category II. 

* * * * * 

(d) The requirements for the 

protection of Safeguards Information 

pertaining to special nuclear material of 

moderate strategic significance—

Category II are contained in §§ 73.21 

and 73.22 of this chapter. 

51. In § 76.117, paragraph (c) is added 

to read as follows: 

§ 76.117 Special nuclear material of low 

strategic significance—Category III. 

* * * * * 

(c) The requirements for the 

protection of Safeguards Information 

pertaining to special nuclear material of 

low strategic significance—Category III 

are contained in §§ 73.21 and 73.22 of 

this chapter. 

PART 150—EXEMPTIONS AND 

CONTINUED REGULATORY 

AUTHORITY IN AGREEMENT STATES 

AND IN OFFSHORE WATERS UNDER 

SECTION 274 

52. The authority citation for part 150 

is revised to read as follows: 

Authority: Sec. 161, 68 Stat. 948, as 

amended, sec. 274, 73 Stat. 688 (42 U.S.C. 

2201, 2021); sec. 201, 88 Stat. 1242, as 


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64068 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

amended (42 U.S.C. 5841); sec. 1704, 112 

Stat. 2750 (44 U.S.C. 3504 note); Energy 

Policy Act of 2005, Pub. L. No. 109–58, 119 

Stat. 594 (2005). 

Sections 150.3, 150.15, 150.15a, 150.31, 

150.32 also issued under secs. 11e(2), 81, 68 

Stat. 923, 935, as amended, secs. 83, 84, 92 

Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 

2113, 2114). Section 150.14 also issued under 

sec. 53, 68 Stat. 930, as amended (42 U.S.C. 

2073). 

Section 150.15 also issued under secs. 135, 

141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 

U.S.C. 10155, 10161). Section 150.17a also 

issued under sec. 122, 68 Stat. 939 (42 U.S.C. 

2152). Section 150.30 also issued under sec. 

234, 83 Stat. 444 (42 U.S.C. 2282). 

53. In § 150.15, paragraph (a)(9) is 

added to read as follows: 

§ 150.15 Persons not exempt. 

(a) * * * 

(9) The requirements for the 

protection Safeguards Information in 

§ 73.21 and the requirements in § 73.22 

or § 73.23 of this chapter, as applicable. 

* * * * * 

Dated at Rockville, Maryland this 19th day 

of October 2006. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. 06–8900 Filed 10–30–06; 8:45 am] 

BILLING CODE 7590–01–P 


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