ML20033C461
| ML20033C461 | |
| Person / Time | |
|---|---|
| Issue date: | 10/19/1981 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| Shared Package | |
| ML20033C454 | List: |
| References | |
| FRN-45FR85459, RULE-PR-02, RULE-PR-2, RULE-PR-50, RULE-PR-70, RULE-PR-73 NUDOCS 8112030273 | |
| Download: ML20033C461 (36) | |
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NUCLEAR RIGULATORY C0KMISSION 10 CFR PARTS 2, S0, 70, AND 73 =
Protection of Unclassified Safeguards Information AGENC Y: Nuclear Regulatory Commission.
ACTION: Final Rule, i
SUMMARY
The Nuclear R5gulatory Commission is. amending its regulations to
- require NRC licensees and other persons to protect unclassified safeguards
~information against unauthorized disclosure.
The rule establishes require-ments and sets forth conditions to be applied by NRC licensees and other
. persons for the protection of unclassified Safeguards Information for oper-ating power reactors, spent fuel shipments, and activities involving formula.
quantities of strategic special nuclear material.
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EFFECTIVE DATE:
October 22, 1981 for sections 2.744(e), 2.790(d)(1),
73.2(jj) and (11), and 73.21(a), (b) art (c)(1). All remaining sections will be effective on January 20, 1982.
FOR FURTHER INFORMATION CONTACT:
Mr. Donald J. Kasun, Physical Security Licen-sing Branch, Division of Safeguards, Of fice of Nuclear Material Safety and Safeguards, U. S. Nuclear Regulatory Ccnmi ssion, Washington, D.C.
2C555, Phone -
'301-427 4010..
RAF8MPJil
CORRESPONDENCE PDR E
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7 SUPPLEMENTARY INFORMATION:
BACXGROUND:
On December 29, 1980, THE Nuclear Regulatory Commission published for
-comment a proposed rule that would prohibit the unauthorized disclosure
- of certain safeguards information by NRC licensees or other persons (45 FR 85459).
The proposed rule was published in response to the pro-visions of a new Section 147, SAFEGUARDS INFORKATION of the Atomic Energy Act, as amended.
Public comment on the proposed rule was received from forty-five groups and organizations as follows:
Power Reactor Licensees 19 Fuel cycle licensees 6
Nuclear service companies 7
States 5
Law firms 3
Associations 2
Other government agencies 2
Private citizens 1
There were-no comments received from public interest groups or organizations.
Extensive revisions have been made to the rule as a result of the connents received.
The most significant revisions include:
- Excluding from the scope of the rule activities involving less than a formula quantity of strategic special nuclear material (except for spent fuel shipments).
- Deleting limit of error of inventory difference (LEID) information from the rule.
Adding guard qualification and training plans as items considered to ~
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be Safeguards Information (those portions that disclose facility safeguards features).
- Deeming information protection systems used by. State and local police force adequate to meet regulatory requirements.
- Rephrasing 12.790(d)(1).
j
- Not requiring the marking of documents more than one year old stored by licensee contractors. Such documents would be marked if and when taken from storage for use.
A.
Discussion of comments Resulting in Changes to Proposed Rule (1) Reduction in the Scope of Application - A number of commenters sug-gested that physical protection information for facilities that possess only special nuclear material of low strategic significance (Category III) be deleted fron the rule considering the small potential hazard of such caterial s.
Commenters also suggested that this type of infermation when in the hands of the NRC be withheld from public disclosure as commer-cially valuable (proprietary) information.
The Commission agrees with both points.
The original determination of scope was based on the assumption that appropriate information pertinent to all facil-ities and special nuclear materials required to be protected under 10 CFR Part 73 should be included in the proposed rule.
Upon further review the Commission has concluded that applicability should be more closely related to the "signifi-cant adverse effect on the health and safety" standard contained in Section 147 of the Atomic Energy Act, as amended.
Accordingly, the scope of the rul'e has been reduced to apply only to those facilities, nuclear materials, or transport activities for which there exists significant potential for harm to the pub-lic health and safety if the nuclear materials or facilities involved are _
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intentionally misused or damaged. Therefore, Safcguards Information is
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limited to information regarding the physical protection of:
- All. activities involving formula quantities of strategic special nuclear material, both irradiated and unirradiated (most of the physical protection information for activities involving a formula quantity of unirradiated strategic special nuclear material would be classified as National Security I'nformation under 10 CFR Part 95),
- Operating power reactors, and
- Spent fuel shipments (but not routes and quantities).
This separation is generally consistent with the overall NRC Policy of graded safeguards. The activities that remain under the rule (with ce'rtain minor exceptions such as non-power reactors) require protection by armed guards, whereas the activities deleted do not.
Appropriate paragraphs of 573:21 have
. been modified to reflect this scope change.
In regard to the second point, the Commission has determined generically that infomation concerning a li-censee's or applicant's material control and accounting or physical security program for special nuclear material, not otherwise covered by specific statu-tory exemptions, is comercial or financial information for purposes of Freedom of Information Act (5 U.S.C. 552) (FOIA) requests.
In order to reduce both the licensee's and the Comission's administrative burden associated with licensees applying for a withholding determination for each item of such information sub-mitted to the NRC under 10 CFR 2.790(b)(1).10 CFR 2.790(d)(1) has been amended to deem such information confidential comercial information under exemption (4) of the F0IA.
This continues in effect present procedures for such information.
Nine comenters supported the retention and/or expansion of 52.790(d)(1) as an appropriate method for withholding material control and accounting
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and physical security information not considered to be Safeguards.Infor-mation. There were no comments to the contrary.
(2)
Deletion of Limit of -Error of Inventory Difference (LEID)-Information -
A large number of commenters recommended the deletion of LEID information for low enriched uranium fabrication facilities on the basis that this infor-mation would not be very valuable to a diverter attempting to steal material within the limits of a statistical alarm threshold.
The Comission agrees and LEID information has been deleted f rom the rule (LEID information for activities involving fornula quantities of strategic special nuclear material would still be classified under Part 95.)
l.
(3)
Addition of Guard Qualification and Training Plans to the Rule - Ten comments were rece <ed on this matter, the most for any item.
Cormienters stated that guard qualification and training plans contained, among other things, site specific response procedures and descriptions of facility l
safeguards features.
A review of several such plans received by the NRC disclosed that wnile some plans were so general that they could not be l
considered Safeguards Information, others contained specific information that should be protected.
The rule has been amended to include those l
portions of guard qualification and training plans that disclose site specific features of the physical protection system.
(4)
Grandfathering - Coments pointed out that certain organizations (e.g.
architect / engineering firms) may have very large quantities of old documents that qualify as Safeguards Information but are rarely removed from storage.
They suggested that this information be exempted or at least be given special o
c consideration.
The, Commission agrees with this suggestion in part and has amended the rule to require marking of documents more than one year old only when they are removed from storage.
Storage, protection and access requirements however, would still apply.
Documents containing Safeguards Information located at the operating facility would have to be marked re-gardless of-age.
(5)
"As Built" Drawings - Some commenters suggested that all revisions of drawings, not just the final, be considered as Safeguards Information.
Other commenters suggested that preliminary design and construction draw-ings be specifically excluded from the rule.
The Commission believes-there is some merit in both suggestions.
Accordingly, the rule has been changed to indicate that any drawing or document that substantially repre-sents the final design of the _ physical security system would have to be p ro tec ted.
This change eliminates the need to control much of the initial information, such as requests for bids, out still requires protection of documents that are only slightly different from the final version.
(6)
Vital Area Identification and Location - Several commenters noted that the proposed rule might be' interpreted as requiring protection of infor-mation already in public documents, such as in the FSAR, specifically in regard to drawings that show locations of safety related equipment.
The rule was therefore revised to indicate that only drawings or documents that explicitly identify items of safety-related equipment as vital for purposes of physical protection are required to be protected. (Note.that -
the content of Appendix E has now been incorporated into the text of the
-rule at paragraph 73.21(b)).
Other than as above', engineering and construc-tion drawings that show-the locations of safety-related equipment. are not considered Safeguards Information.
(7). 'Acceptablilty of Present Protection Systems - Several.commenters suggested that specific physical protection. requirements not be included in the existing rule-but that' licensee or State standard procedures be accepted instead.
The Comission has concluded, based on frequent NRC staff. contacts, that State and local police forcer, protect information-in a-way that is equivalent to _the rule requirements.
Accordingly, the rule has been revised to deem State and local police information protec-tion procedures _ acceptable. In regard to NRC licensees that fall into
'the scope of the rule, the Comission has concluded that without formal re-quirements there would be no assurance of uniformity, consistency or an ade-quate level of protection across the industry.
As evidenced by the comments received, there is considerable divergence of opinion as to what constitutes-a minimum acceptable level.
(8)
Other Minor Changes - Based primarily on comments received, additional rule changes have been made to:
Permit Safeguards Information to be transported by any individual authorized access under the rule.
Show that matter other than dccuments may contain Safeguards Information.
Allow use of ADP systems by contractors of licensees.
Indicate that non-security related orders and procedures for guards need not be protected.
(,
Limit 'of f-s'ite communication information that needs to be protected to communications used for security purposes.
Show that portions of any correspondence that contains Safeguards-Information would have to be protected.
Remove from the rule and place in guidance documents many of the detailed requirements relative to marking, transmission, and de-struction of documents that contain Safeguards Information.
- Note in -5 2.744(e) the applicability of criminal sanctions, as well as civil penalties, for violatf ord of Board orders pertaining to Safeguards Information.
B.
Discussion of Comnents Not Accepted By the Commission (1)
Protection During Agency Proceedings - The adequacy of proposed 10 CFR 2.744(e) was questioned by law firm commenters representing licen-sees.
The amendment as pn. posed would confirm a presiding officer's authority to issue appropriate protective orders whenever protected Safeguards Information is required in an adjudicatory hearing.
The amendment was seen by the Commission as the minimum restriction needed j
to protect the health and safety of the public or the common defense and security in the context of adjudicatory hearings pursuant to Section 147a of the Atomic Energy Act of 1954, as amended (the Act), and to impose the minimum impairment of procedural rights, as required by Section 181 of the Act.
The amendment makes it clear that the physical protective measures and need to know standards of proposed 573.21 would apply to Safeguards Information in adjudicatory hearings. --
First,. the comenters note correctly, but as a shortcoming, that i 2.744(e) applies only to agency records and not to Safeguards Information possessed only by an applicant, licensee, or contractor.
A second objaction was that the proposed 1.2.774(e) gives relatively weak authority to the licensing boards to prevent disclosure by intervenors 'and their lawyers.
The commenter asserted that some showing of reliability should be required of such persons before-Safeguards Information is disclosed.
Third, the comenters stated that the proposed regulation.gives inadequate guidance to the licensing boards-on the kind of. protection intervenors should be required to give to Safeguards Information.
The commenters suggest that the restrictions used in the Diablo Canyon case be adopted.
See Pacific Gas and Electric Co. (Diablo Canyon Nu-clear Power Plant Units 1 and 2) ALAB-600,12 NRC 3 (1980).
Finally, the commenters suggest that the possibility of criminal sanctions, as well as of civil penaities, be noted for violations of Board orders pertaining to Safe--
guards Information.
In response.tc these comments the Commission has made one change to proposed 12.744(J).
That change notes the applicability of criminal sancticns by stat-ing, for the purpose of Section c23'of the Act, that any order issued pur-suant to i 2.744(e) with respect to Safeguards Information be considered an l
l order issued pursuant to Section 161b. of the AE Act. This is in accord with Section 147b. of the Act.
The Comission believes the other comments should not be adopted.
It was not the intention of the Comission to place any restrictions on discovery by, intervenors, or. to write any special rules chilling intervenors' rights, such -
as a screening requirement not applicable to all parties.
Not only would such,
e -
rules be discriminatory, but also would be contrary to Sections 181 and 147a
- of.- the Act.
This Commission cannot presume beforehand that intervenors and
.their counsel are any-the-less trustworthy than the staff or applicant and their counsel.
The minimum protection required for Safegaards Information is stated in pro-posed I73.21.
The requirements there apply to intervenors and their counsel as well as to the applicant or licensee, Section 2.744(e) allows a Board to go further, if, in its judgment after hearing all relevant arguments, the circum-stances warrant it.
This Commission, needless to say, has confidence in the ability of its Boards to exercise sound judgment in the exercise of their dis-cretion under 5 2.744(e), and therefore at this time declines to write any special rules for the guidance of the Boards as to the extra measures they may require for the protection of Safeguards Information in adjudicatory hearings.
With respect to the protective measures used by the Boards in the Diablo Canyon case and their potential general applicability, the Commission notes that those conditicas are involved in a review of the Diablo Canyon hearing by an Atomic Safety and Licensing Appeal Board.
The Appeal Panel has informed the Comnission that it would like to make some suggestions regarding the hand-ling of S/ feguards Information in adjudicatory hearings but feels constrained not to do so until the Diablo Canyon adjudication is finished.
The Commission believes that the suggestions of the Appeal Panel will be most useful in deter-mining if restrictions on intervenor's rights of discovery of Safeguards Infor-mation should be inserted into the agency's rules as the commenters reque'st.
For this reason also, the Commission will defer to a later time the decision
~ hether it should stipulate any further guidance or rules for how the licensing w
boards should write protective orde to protect Safeguards Infor: nation.
At this time the Comission believes that its opinion and those of the Boards provide ade-quate guidance.
See, Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plan, Units 1 and 2), CLI 80-24,11 NRC 775 (1980), ALAB 410, 5 NRC 1398, (1977),;
ALAB 580, 11 NRC 227 (1980); ALAB 592, 11 NP.C 744 (1980); and ALAB 600, 12 NRC 3 (1980).
One comenter also took the position that proposed 52.744(e) did not provide adequate protection against undesirable disclosure of physical security plans for nuclear power plants.
In his view a protective order and affidavit of tiondisclosure would not eliminate the risk of unauthorized disclosure by inter-venors who had an ulterior mot!ve of securing the plans for use in sabo'taging the plant.
This commenter recomended (i) inclusion of rules of decishn based upon Diablo Canyon for presiding officers to apply in hearings, and (ii) security clearances or a screening program for persons with access to Safeguards Informa-tion in hearings, in order to assure trustworthiness and reliability. Both of these recomendations have been discussed above und rejected. In addition, the Comission does not propose to write rules affectiag rights of intervenors in adjudicatory hearings based upon a suspicion of ulterior motives in intervening.
To do so would be tantamount to writing rules based upon speculation rather than on fact and law.
The hearing process already contains screens to separate the genuine intervenor from the spurious. The intervenor must validate both his standing under judicial rules and the merit of his contentions. He is a known and readily identifiable person who openly participates at considerable m
expense.
Intervenors generally make no effort to conceal their opposition ~ to nuclear powec, but this does not supply an adequate basis to consider them as 1
potential co-conspirators-in plots to sabotage operating power reactors.
In contrast to the above, a third comenter stated that proposed 5 2.744(e) was potentially too restrictive of inter <enors' rights in that it gave too much authority to the presiding o#ficer.
The commenter suggested modification of pro-posed 12.744(e) to allow disclosure of Safeguards Information to a party upon a showing by the party of reasonable necessity for disclosure.
10 CFR 2.744(e) as drafted requires a finding by the presiding officer that disclosure is nec-essary to a proper decision.
The presiding officer, as usual, will exercise a rule of reason in applying the standard.
The language used accomplishes the same result and is generally consistent with the terminology in i 2.744.
(2)
Trustworthiness Determinations - A number of commenters disagreed with the absence of a personnel clearance or screening program as -a necessary condition for access to Safeguards Information, noting that the traditional requirements for access to sensitive information include both "need-to-know" and trustworthi-ness determinations.
One commenter suggested that persons having access' be sub-
,jected to the screening program which the Comission has directed be ertablished for power reactor personnel.
Another commenter suggested that individuals be re-quired to show sufficient evidence of trustworthinest before being granted access.
The Comission's position on this matter has not changed.
In the firs' place, Section 147 of the Atomic Energy Act contains no provisions regarding trustworthi-ness. determinations on which to base a federal personnel security program (as is l
l set forth in Section 145 for access to Restricted Data).
Secondly, the Comission-l
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/does not believe that1 hare is;a'ny reasonable regulatory framework that can be
~used to establish a licensee administered screening program, considering the wide; distribution afforded some Safeguards Informationt While the power reac-tor access Lauthorization program _ mentioned by one.coninenter might be used for
" clearing" licensee employees and other persons granted unescorted access to i
the reactor facility,.it would not be applicable :to engineering firm employees i who are:never on the site '(but wh'o in some cases have total access to the ohys-ical protection system design information).
Thirdly,-the Comission believes that the proper administration 'of the need-to-know requirement combined with-the rule's. occupational' restrictions will provide an effective information pro-tection' program and still satisfy the " minimum restrictions" provisions of-
-Section -147a of the Act.
(3)- Unrestricted Use of Telecomunications Several commenters suggested that the restrictions on'the use of telephone circuits for transmissio'n of Safeguards Irformation be deleted.
Various reasons were given for this change.
One_ comenter stated that the rule would prevent the licensee from
-calling-for help in a safeguards emergency.
This is not so since the regu-lations make an exception for extraordinary or emergency circumstances.
> Another comenter contended that the resources needed to intercept un '
-secured c'ommunications exceeded the technical capabilities of the design b'asi s. threat.
The Comission disagrees with this position and believes that I
- relatively little skill is needed to tap phone lines or eavesdrop on radio conversations.
A third comenter noted that the telephone is normally used Lto_ transmit shipping information and.it would be burdensome to use another Lmethod.
In..this regard, the only shipments covered by the final _ rule are spent:
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. fue1L and formula quantities' of -strategic special nuclear' material. (Category I).-
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Notifications regarding spent-fuel shipments are required to be by-mail (See-1 u
10 CFR - 73.72) except that reporting schedule changes are permitted to.be made by phone in the form of time deviations from the original schedule.
Information regarding Category I shipments is classified National Security
'Information under Part'95 and use of unsecured telephone for such infonnation is prohibited.
Another ccmmenter stated that the rule confif ets with the requirements of 573.71 regarding the telephonic reporting of physical security events. The events for which reporting is required are considered to be extraordinary conditions in themselves'and therefore exempt from the restrictions. An ex-plicit statement was added to the rule in this regard. The Commission, after careful consideration, concluded that the restrictions on the use of unsecured l
telecommunication circuiti needs to be retained in the rule to assure that-Safeguards Information is r.at lost. or compromised without the knowledge o'f the person responsible for its protection.
There is no indication that these restrictions will unduly burden the licensee or the NRC staff during.rcutine licensing matter or transport activities. For example, periodic call-ins re-quired during shipments can be made using prearranged signals or an operating code.
(4)
Restrictions on Use of ADP Systems - Commenters stated that the meaning of an "ADP system" was not clear, that facilities without on-site capabilities would be excessively burdened, and that the restrictions should be removed.
The Commission disagrees noting that the problem regarding unauthorized access to Safeguards Information stored in ADP systems is more severe than with tele-phone usage. ADP systems located at engineering firms may have in memory large amounts 4offinformation on the design of a physical security' system. Without 14-m,-
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restrictions, access to such information pote.,tially could be gained by anyone, authorized or not, who is familiar.with the operation and has access to a terminal. Remote terminals could provide.an especially easy and unobtrusive means for obtaining selected Safeguards Information.
Access to unprotected data lines between facilities could also be'used to compromise a physical securi ty system.-
(5)
Physical Protection Recuirements - Several commenters stated that the storage requirements were too restrictive.
Suggested alternatives (to locked security storage contaihers) included storage in desks, file cabinets, locked rooms, undesignated or non-GSA approved storage respositories, or anywhere in a controlled access or protected area.
The Cocmission does not agree with -
the suggested alternatives. The basic objective of the security container is to make more difficult undiscovered compromise of Safeguards Information.
A steel filing cabinet secured with a locking bar and a GSA approved combina-tion lock, or a GSA approved security container both satisfy this objective.
On the other hand, locked file cabinets, desks, and ordinary doors can be en-tered with little difficulty and without leaving any indication that compromise has occurred.
The objection to storing anywhere in a controlled access or pro-tected area is based on the free access this would allow to anyone in these areas.
However, the rule has been changed to delete the requirement that the security storage container be in a locked room when inside a controlled access or protected area.
Other commenters objected to the requirement for control of Safeguards Infor-mation by an individual while in use within a controlled access or protected area.
The Commission agrees that some relaxation is warranted on this matter;- -
. however, the basic requirement has been lef t in the rule and guidance has been provided to indicate that under certain conditions the general control exercised over controlled access and protected areas would satisfy the re-qui rement.
One commenter noted that the requirements to keep Safeguards Information in locked security containers would have an adverse impact on the availability of the security force to respond to a threat or a safeguards incident. The Commission does not agree.- Documents located within alarm stations and guard houses need not be in locked'sec'Irity containers since they are under direct control of security personnel.
Similarly, guard orders and procedures may be posted at access control points provided that the post is continuously manned and the information is located so as to prevent observation by visitors.
(6)
Addition of Other Types of Information - Several comr. enters disagreed with the deletion of generic safeguards studies and reports (such as the Sandia Laboratories' Handbooks on Barrier Technology and Entry Control Systems) from the' scope of the rule and noted that no justification was given for the omis-sion.
On this matter the Commission notes that the original legislative pro-posal prepared by the NRC, and interim versions of the legislation, contained explicit language regarding the protection of " studies, reports, and analyses
which concern the safeguarding of nuclear materials or facilitie:."1[
This prosiston was deleted from the final version of Section 147.
In view of this deliberate action by the Congress, the Commission has no choice but to delete these items from the rule.
1/ Congressional Record - House, H 11334, November 29, 1979.
q-~.
r One commenter suggested that information developed during the course of prob-
.abilistic risk ~ assessments.be protected under this rule.
The Commission, while agreeing.that such information might have value to a potential saboteur, has concluded that_ on balance the.public interest is better served if all safety-related studies are available for scrutiny.
The question also arises con-cerning the.. legality of withholding information under Section 147 that is neither related to a licensee's physical protection program nor produced in response to security considerations.
(7)
Deletions-of Certain Types of Information - One commenter suggested that it would be unlawful to include information regarding off-site response forces, shipment-schedules and locations of safehavens in that these items are not
" security measures" as set forth in Section 147.
The Commission disagrees on this point.
NRC regulations require licensees to make arrangements with State or local police forces for response to safeguards emergencies.
For fixed sites these arrangements are documented and become part of the facility physical security plan.
For transport of spent fuel and Category I quantities of highly enriched uranium and plutonium, route surveys are conducted by the NRC staff in order to determine what police response could be expected in an emergency, the location of safe havens, and zones of weak radio-telepone communications.
The information gathered is documented and transmitted to the licensee for inclusion in his physical protection plan. In this regard, the U.S. District Court for the District of Columbia has recently upheld the Commission's post-tion that police response capabilities and telephone shortcomings are legiti-mate items for withholding under Section 147 of the Act.1/
1/ Vir inia Sunshine Alliance vs NRC, Civil Action No. 80-2099, February 26,
. TF8.. resently under appeal). _
Another commenter stated that it might be impossible to prevent disclosure of certain information regarding local police forces.
The Comission agrees in part and the rule has been modified to more accurately reflect the original intent that only details of the forces committed to respond to a facility safe-guards emergency need be protected.
(8)
Withholding Spent Fuel Route Information - Two corrnenters recomended that routes used for spent fuel shipments be withheld until the shipments have been completed.
This is not a matter for Commission deliberation.
Section 147 con-tains an explicit statement that "Nothing in this Act shall authorize the Comission to prohibit the public disclosure of information pertaining to the routes and quantities of shipments of - - - - - irradiated nuclear reactor fuel."
(9)
Limit Regulations to Parts 2 and 9 - One commenter suggested that the licensed industry be allowed to devise its own methods of protection, that specific requirements be deleted from Part 73, and that Parts 2 and 9 contain directives that Safeguards Information be protected.
As is stated elsewhere, the Comission believes that without formal requirements (which are considered to be the minimum restrictions that provide an acceptable level of protection) there would be no assurance of uniformity or consistency. Coments received indicate there is no general agreement in the licensed industry concerning what constitutes a minimum level of protection.
.(10)
Other Comments - Following is a list of other comments on minor matters that were not incorporated into the final rule on the basis of no demonstrat-able need or benefit:
Show.that the licensees are not responsible for ccmpliance by other persons that receive Safeguards Information. _
Require records to be kept for any Safeguards Information transmitted off-site.
Require that' a list be kept of persons who have a need-to-know.
Note that distribution, reproduction, and destruction of Safeguards Infor-~
mation need not be documented.
Include a documer$t exclusion list in the rule.
Add attorneys to the occupation list contained.in 173.21(c); (not necessary in that attorneys are already included in (c)(i) & (vi)).
Amend the definition of Safeguards Information to add " controlled" before Safeguards Information.
Add a definition for " composite plan."
Limit withholding of. information on security system weaknesses to those items severe-in nature.
i I
(11)
Comments Regarding Guidance - A number of coments were received regarding l
guidance needed to implement the rule.
The specific items mentioned by commenters were taken ',nto consideration during the development of the guidance document.
L (12)
Cost - Several comenters stated that the estimated costs for implementing the rule were too low, particularly in regards to storage during the construc-tion phase, protection at licensee contractor facilities, and recurring labor.
The Comission has revised its estimates as follows.
( A value-impact analyses is available in the Public Document Room.)
Licensees and Nuclear Service ~ Companies (245 lerations)
Initial Costs Recurring (annual)'
$4000 per location (avg)
$2200 per location (avg) x245 locations x245 locations
$986,500' Total 5531,000 To.tal State Governments (40 states)
Initial Costs Recurring Annual 524,000 Total 5126,000 Total (13)
Public Announcement - One commenter noted that s me firms who may have Safeguards' Information are not part of an infomation network that would inform them of the existence of this new rule.
The Commission agrees that special effort is needed regarding public dissemination of the rule.
In addition' to the nonnal practice of publication in the Fed-eral Register and distribution of NRC public announcements the Commission inte'nds to (i) encourage licensees to notify their contractors, suppliers, and local police response forces, (ii) send out a special mailing to nuclear
, service firms that do business with power reactor licensees, a'nd (iii) in-vite certain associations to notify their members.
C.
Petition For Rulemaking On June 7,1977, the Northern States Power Company and Wisconsin Electric Power Company petitioned the Nuclear Regulatory Commission to amend 10 CFR 50.34(c) so as to include plant security information within the definition of Restricted Data, or alternatively within the definition of National Security-Infomation, to amend 10 CFR 2.905 so as to assure that discovery of plant security information is subject to the protections of Subpart I to 10 CFR Part 2, to amend Subpart I to 10 CFR Part 2 to explicitly-recognize that its protections extend to information not under Commission control, and to d,elete 10 CFR 2.790(d)(1).
The Commission's decision on the petition, in light of the issuance of this rule, will be set forth in a separate Federal Register Notice. -
D.
Effective Dates
.The; Commission has-decided to make sections 2.744(e), 2.790(d)(1), 73.2 (jj) and
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(11 ). -
and 73.21(a),- (b) and (c)(1) effective immediately for ' good cause.
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pursuant 1 to the exception provided by 5_ U.S.C. 553(d)(3).
The enumerated sections define ~ the scope of Safeguards Information protected by the
. rules,- _ identify.those persons who are permitted access, set forth certain protections afforded by. the Commission to such information, and provide certain.protections for physical protection and material control and accounting information not otherwise designated as Safeguards Information-or classified as National Security Information or Restricted Data.
These sections alone impose no new requirements on licensees or other persens outside the agency.
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Immediate effectiveness of these sections is warranted to avoid further delay in implementing the Congressional intent in enacting Section 147 t
l of the Atomic Energy Act to provide protection from public disclosure for certain specified types of Safeguards Information.
Since the rule also ccdifies current Commission procedure as to.what types of informa-tion are protected, immediate effectiveness of those provisions will not adversely affect Commission licensees or others in possession of Safeguards Information.
The remaining provisions of the rule will be effective on January 20, 1981.
I E. ' Pacerwork Reduction Statement -
- There' are no. reporting or recorckeeping requirements contained in this
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regulation and.therefore it is not subject to Office of Management and Budget clearance as required by P.L.96-511.
1 The promulgation of these amendments would not result in any activity that affects the environment.
Accordingly, the Commission has determined under the National Enviromental Quality guidelines and the criteria of 10 CFR 51.5(d) that neither an enviromental impact statement nor en-viromental impact appraisal to support a negative declaration for the proposed amendments to Title 10 is required.
Pursuant to the Atomic Energy Act of.1954, as amended, the Energy Re-organization Act of 1974, as amended, and Sections 552 and 553 of Title 5 of the United States Code, the following amendments to Title 10, Chapter I, Code of Federal Regulations, Parts 2, 50, 70, and 73, are published as a document subject to codification.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 is revised to read as follows:
AUTHORITY:
Secs. 161p and 181, PLb. L.83-703, 68 Stat. 950 and 953 (42 U.S.C. 2201(p) and 2?~i); Sec. 191, as amended, Pub. L.87-615, 76 Stat. 409 (42 U.S.C. 2241); Sec. 201, as amended, Pub. L.93-438, 88 Stat. 1242 (42 U.S.C. 5841); 5 U.S.C. 552; unless otherwise noted.
Sections 2.200-2.206 also issued under Sec.186, Pub. L.83-703, 68 Stat. 955 (42 U.S.C. 2236) and Sec. 206, Pub. !.93-438, 88 Stat.
1246 (42 U.S.C. 5846).
Sections 2.800-2.808 airo issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. SE3 and Sec. 29, as amended, Pub. L.85-256, 71 Stat. 579, and Pub. L.- 95-209, 91 - Stat.1483
'(42 U.S.C.' 2039)..
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Section 2.744-is amended by adding a new paraf raoh '2.744(e) to# re' has 2.
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follows:
'e-c 52.744 Production-of NRC records and documents.
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(e)
In the case of requested documents and records (including Safe-I guards Information referred to in Sections -147 and 181 of. the Atomic Energy Act, as amended) exerrpt from disclosure under =12.790. but whose disclo: 3re is found by the presiding officer to be necessary to a proper decision in the proceeding, any orde'r to the ExecJtive Director for Operations to produce the document-or recocds (or any other order issued ordering pro-8 duction of the document or records) may contain such protective terms "I
and conditions (including affidavits of non-disclosure)~ as may be necessary and appropriate to limit the disclosure to parties in the pro-
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f ceeding to interested States and other governmental entities participat-P ing pursuant to $2.715(c), and to their qualified witnesses and counsel.
When Safegusrds Information protected from disclosure under Section 147 of the Atomic Energy Act, as amended is received and possessed by a party other than the Commission staff, it shall also be protected accord-ing -to the requirements of 573.21 of this Chapter.
The 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 precedural rights which would be avail-able-if Safeguards Information were not involved.
In addition to any other sanction that may be imposed by the1 presiding officer for violation of. an order issued pursuant to this-paragraph. violation of an order pertaining
. to the disclosure of' Safeguards Information protected frca disclosure under i
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Ed Section 147'of the Atomic Energy Act, as amended, may be subject to a civil t
penalty imposed pursuant to i 2.205.
For the purpose of imposing the criminal
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penalties contained in Section 223 of the Atomic Energy Act, as amended,.any
- order issued pursuant to this paragraph with respect to Safeguards Information
.f-shall be deemed an-order issued under Section 161b. of the Atomic Energy Act.
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Section 2.790 is amended by revising paragraph (d)(1) as follows:
52.790 Public inspections, e'xemptions, requests for withholding.
(d) *
.,. c (1), Correspondence and reports to or from the NRC which contain infor-i\\ ' '
mation or records concerning a licensee's or applicant's physical protection k
or materi'a'l'pontro} and accounting program for special nuclear material not r
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otherwise desf gnated as Safeguards Information or classified as National Se--
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PART;50 tICENSING' 0F PRODUCTION AND UTILIZATION FACILITIES
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- 4. 'The author.itk' citation for Part 50 is revised to read as follows:
s.
AUTHORITY:
Secs.103,104,161,182,183,189, 68 Stat. 936, 937, 948, 953, 954, 955, 956, as amended (42 U.S.C. 2133, 2134, 2201, 2232, 2233, 2239); Secs. 201, 202. 206,- 88 Stat.1243,1244,1246 (42 U.S.C. 5841, 5842, 5846), unless'otherwise noted.
Section 50.78 also issued under y
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Sec.122, 68 Stat. 939 (42 U.S.C. 2152).
Sections 50.80-50.81 al so,
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-2 issued under Sec.184, 68 Stat. 954, as amended; (42 U.S.C. 2234).
Sec-
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-tions_50.100-50.102 issued under Sec.186, 68 Stat.- 955; (42 U.S.C. 2236).
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For the purposes of Sec. 223, 68 Stat. 958, as amended; (42 U.S.C. 2273),
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550.54'(1)- issued under Sec.- 1611,.68 Stat. 949; (42 U.S.C. 2201(i_)),
-5 5 50.70, 50.71',. and 50.78 ' issued _ under Sec.161o,. 68_ Stat. 950, as amended; (42 U.S.C. 2201(o)) and the Laws referred to in Appendices.
,5.
Section 50.34 is amended by adding a new-paragraph (e) to read as
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follows:-
- 5 50.3% Contents of applications; technical infomiation.
(e) Eac_h applicant for a ifcense to operate a production or uti-lization. facility, who prepares a physica' security plan, a safeguards contingent:y. plan, or a guard qualification and training plan, shall protect the plans and other related Safeguards Informathn against unauthorized disclosu}e in accordance with the requirements of I 73.21 of this chapter, as appropriate.
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Secticn 50.54 is amended by adding a new paragraph (v) to read as follows:
'l 50.54 Conditions of if censes.
(v)
Each licensee subject to the requirements of part 73 of this -
chapter-shall ensure that physical security, safeguards contingency and guard qualification and training plans and'other related Safeguards Infor-mation are protected.against unauthorized disclosure in accordance with the requirements of i 73.21 of this chapter, as appropriate.
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PART 70 - DOMESTIC LICENSING OF SPECIAL-NUCLEAR MATERIAL
- 7 The authority citation for Part 70 is revise'd to read as follows:
AUTHORITY:- Secs. 51, 53,161,182,183, _ 68~ Stat. 929, 930, as amended, 948, as amended, 953, as amended, 954. (42 U.S.C. 2071~, 2073, 2201, 2232,-
2233); Secs. 202, 206, 88 Stat.1244,1246 (42 U.S.C. 5842, 5846)~ unless otherwise noted.
For the purposes of Sec. 223, 68 Stat. 958, as amended (42 U.S.C. 2273),
5870.3, 70.19(c), 70.21(c), 70.22(a), -(b), (d)-(k), 70.24'(a) and (b),
70.32(a)(3), (5), and (i)~, 70.36, 70.39(b) and (c), 70.41(a), 70.42(a) and (c), 70.56, are issued under Sec.161b, 68 Stat. 948, as amended (42 U.S.C. 2201(b)); 5570.20a(d), 70.32(a)(6), (c), (d), (e), and (g),
70.36, 70.51(c)-(g), 70.56, 70.57(b) and (d), 70.58(a)-(g)(3) and (h)-
(j) are issue'd under Sec.161, 68 Stat. 949, as amended (42,U.S.C. ~2201 (i)),
and$370.32(h),70.51(b)and(i),70.52,70.53,70.54,70.55,70.58(.g)(4),
(k) and (1), 70.59, are issued under Sec. 1610, 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
8.
Section'70.22 is amended by adding a new paragraph '(1) after para-graph.(k) to read as follows:
$ 70.22 Contents of applications.
(1)
Each applicant for a license to possess, use, ' transport, or 1
' deliver to a carrier for transport formula quantities of strateg. : special
-nuclear material, who prepares a physical security, safeguards contingency, or guard qualification and training plan shall protect these plans and other related Safeguards information against unauthorized-disclosure in accord-ance with the requirements of 5 73.21 of this -chapter.
9.;=Section.70.32 is' amended by adding a new paragraph (f) to read as-fdllows:
1570.32 Conditions of-licenses
- ~
'(j) 'Each litansee who possesses.a formula quantity of strategic special nuclear material, or who transports, or delivers to a carrier for transport, a formula quantity'of strategic special nuclear material or more than-100 grams of. irradiated reac',r fuel shall ensure that
^
physical security, safeguards contingency, and guard qualification and training plans and 'other related Safeguards information are protected
'against unauthorized disclosure in accordance with the requirements of 5 73.2' of this chapter.
Part 73-PHYSICAL PROTECTION OF PLANTS AND MATERIALS 10.
The authority citation for Part 73 is revised to read as follows:
AUTHORITY:- Secs. 53,147,161b,1511,1Glo, Pub. L.35-703, 68 Stat. 930, 948-950 as amended Pub. L.85-507, 72 Stat. 327, Pub. L.38-489, Stat. 602. Pub. L.93-377, 88 Stat. 475, Pub. L.96-295, 94 Stat. 780, (42 U.S.C. 2073, 2201, 2167); Sec. 201, Pub. L.93-438, 88 Stat.1242, 1243, as amended, Pub. L. 94-79, 89 Stat. 413 (42 U.S.C. 5841).
For the purposes of Sec. 223, 68 Stat. 958, as amended, 42 U.S.C. ; 2273, 173.55 is issued under Sec.161b, 68 Stat. 948, as amended, 42 U.S.C. 2201(b);
5973.20, 73.24, 73.25, 73.26, 73.27, 73.37, 73.40, 73.45, 73.46, 73.50, 73.55, and 73.67 are issued under Sec. 1611, 68 Stat. 949, as amended,
-42 U.S.C. 2201(1); and 1573.20(c)(i),.73.24(b)(1), 73.26(b)(3), (h)(6),
(i)(6),.nd (k)(4), 77.27(a) and (b), 73.40(b) and (d), 73.46(g)(6), and (h)(2), 73.50(g)(2), (3)(iii)(B) and (h), 73.55(h)(2), and (4)(111)(0),
73.70, 73.71, and'73i72 are issued under Sec. 1610, 6B Stat. 950, as amended, 42 U.S.C.L2201(o). -
11.
Section.73.1-is. amended by adding a new paragraph (b)(7) to ' read as -
follows:,
i.73.1 Purpose and scope.
(b)
(7) This part prescribes requirements for the protection of Safeguards Information'in the hands of any person, whether or not a licensee.of the Commission, who produces, receives, or acquires Safeguards Information.
12.
Section 73.2 is amended by adding new paragraphs (jj), (k'k), (11) and (mm) to read as follows:
5 73.2 Definitions- ~
(jj)
" Safeguards Information" means information not otherwise classified as-National Security Information or Restricted Data which specifically identifies a licensee's or applicant's detailed,'(1) ~ se-curity measures for the physical protection of special nuclear material, or (2) security measures for the physical protection and location of certair, plant equipment vital to the safety of production or utilization facili-
-ties.
(kk)
"Need to Know" means a determination by a person having respon-sibility for protecting _ Safeguards Information that a proposed recipient's access 'to Safeguards Information is necessary in the performance of official, contractual, or licensee duties of employment. -
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" Person" 'means O ) any individual, corporation, partn::rship, firm, g
association, trust, estate, public or private institution, group, gr vernment I
agency other than the Commission or the Department of Energy (DOE), (except
_that.the DOE shall be considered a person to the extent that its facilities p
are subject to the licensing and related regulatory authority of the Commission pursuant.to Section 202 of the Energy Reorganization Act of 1974 and Section 104,105, and 202 of the Uranium. Mill Tailings Radiation Control Act of 1978),
any state or political subdivision of a state, or any. political subdivision of any government or nation, or other entity; and (2) any legal successor, repre-l sentative, agent, or agency of the foregoing.
(mm)
" Security Storage Container" includes any of the following reposi-tories:
(1) For storage in a building located within a protected or controlled access area, a steel filing cabinet equipped with a steel locking bar and a three position, changeable combination, GSA approved padlock; (2) A security filing cabinet that bears a Test Certification Label on the. side of the locking L
drawer, or interior plate, and is marked, " General Services Administration Approved Security Container" on the exterior of the top drawer or door; (3) A bank safe-deposit box; and (4) Other repositories which in the judgement j
of the NRC, would provide comparable physical protection.
l 13.
A new I 73.21 is added to read as follows:
l
$_73.21 Requirements for the Protection of Safeguards Information.-
(a) General performance requirement - Each licensee who (1) possesses a formula quantity of strategic special nuclear material, or (2) is authorized to operate a nuclear power reactor, or (3) transports, or delivers to a carrier for transport, a formula quantity of strategic special nuclear material or more than 100 grams of irradiated reactor fuel, and each person who produces, receives, or acquires Safeguards Information shall ensure that Safeguards Information E o
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.c is protected against unauthorized _ disclosure.. To meet this general perfor-
.mance requirement, licensees and persons subject to this section shall es -
tablish and maintain an information protection system that includes the measures specified in paragraphs (b) through (i) of this section. 'Infor-mation protection procedures employed by State and local police forces are deemed to meet these requirements.
(b)
Information to be protected - The specific types of infor--
mation, documents, and reports that shall be protected are as-follows:
(1)
Physical Protection at Fixed Sites Information not otherwise classified as Restricted Data or National Security Information relating to the protection of facilities that possess formula quantities of strategic special nuclear material, and power reactors.
Specifically:
(i)
The composite physical security plan for the nuclear facility-or site.
(ii) Site specific drawings, diagrams, sketches, or maps that substantially represent the final design features of the
, physical protection system.
(iii) Details of alarm system layouts showing location of intrusion detection devices, alarm assessment equipment, alarm system wiring, emergency power sources,'and deress alarms.
(iv)
Written physical security orders' and procedures for members of the security organization, duress codes, and patrol schedul es~.
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-(v). Details of the on-site and off-site communications systems that are used for security purposes.
(vi)
Lock ccmbinations and mechanical key design, (vii)
Documents and other matter that contain lists or locations of i
certain safety-related equipment explicitly identified in the docum' nts as. vital _for purposes of physical protection, as e
contained in physical security plans, safeguards contingency; _
plans, or plant specific safeguards analyses for-production or utilization facilities.
'(viii) The composite safeguards contingency plan for the facility or site.
(fx)
Those portions of the facility guard qualification and training plan which disclose features of the physical security system or response procedures.
l (x)
Response plans to specific threats detailing size, disposition,.
response times, and armament of responding forces.
(xi)
Size, armament, and disposition of on-site reserve forces.
t (xii)
Size, identity, armament, and arrival times of off-site forces committed to respond to safeguards emergencies.
(2) Physical protection in ' transit Information not otherwise classified as. Restricted Data or National Security Information relative to the protection of shipments of formula quantities of strategic special nuclear material and spent fuel.
Specifically:
(i) -The composite transportation physical security plan. L
1
- (ii) -Schedules and itineraries-for specific shipments. (Routes and quantities lfor. shipments of spent fuel _ are not withheld from public disclosure.
Schedules for spent. fuel shipments may be released 10 days after the last shipment of a current series.)
(iii)
Details of vehicle immobilization features, intrusion alarm devices, and communication systems.
(iv) Arrangements with and capabilities of local police response
' forces, and locations of safe havens.
(v )
Details regarding limitations of radio-telephone communi-cations.
(vi)
Procedures for response to. safeguards emergencies.
(3)
Inspections, audits and evaluations Information not otherwise classified as National Security Infor-mation or Restricted Data relating to safeguards inspections and reports.
Specifically:
(i) Portions of safeguards inspection reports, evaluations, audits, or investigations that contain details of a licensee's or ap-plicant's physical security system or that disclose uncorrected defects, weaknesses, or vulnerabilities in the system. Infor-mation regarding defects, weaknesses or vulnerabilities may be released after corrections have been made.
Reports of investigations ney be released after the investigation has been completed, unless withheld pursuant to other author-l ties, e.g., the Freedom of Information Act (5 U.S.C. 552).
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[(4) Correspondence
~
Portions of correspondence insofar as they contain Safeguards T!nformation specifically defined in paragraphs (b)(1)'through (b)(3) of this" paragraph.
~
.(c) Access to Safeguards Information - (1) Except as the Commission may.otherwise authorize, no person may have access to Safeguards Information unless the_ person has an established "need' to know" for the information and
- is:
(i)
An empl,oyee, agent, or contractor of an applicant, a licensee, the Commission,'or the United States Government; N
(ii) A member of a-duly authorized connittee of the Congress;-
(iii) The Governor of a State or designated representatives:
(iv1 A _ representative of the International Atomic Energy Agency (IAEA) engaged in activities associated with the U.S./IAEA Safeguards Agreement who has been certified.by the NRC; l
(v ) A member of a state or local law enforcement authority that i_s L
responsible for responding to requests for assistance during safeguards emergencies; or (vi) An individual to whom disciosure is ordered pursuant to l
12.744;(e) of this chapter, i
(2)
Except as the Connission may otherwise authorize, no person may disclose Safeguards Information to any other person except as set forth l
in paragraph (c)(1) of this section.
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k-(d) _ Protection while in use or storage - (1)
'a'hile in use, matter containing Safeguards Information shall be under the control of an author-
'ized-individual.
(2)- While unattended, Safeguards Information shall be stored in a locked security storage container.
Knowledge of lock-combinations proi
-tecting-Safeguards Information shall be limited to a minimum number of personnel for operating purposes who have a "need to know" and are other-wise authorized access to Safeguards Information'in accordance with the provisions of this section.
(e)
Preparation and marking of documents - Each document or other matter that contains Safeguards Information as defined in.p'aragraph (b) in this section shall be marked " Safeguards Information" in a con-
~
.spicucus manner to indicate the presence of protected information (portion marking is not required for the specific items of information set forth in paragraph 73.21(b) other than guard qualification and training plans and correspondence to and from the NRC.)
Documents and other matter con-taining Safeguards Information in the hands of contractors and agents of licensees that were produced more than one year prior to the effec-tive date of this amendment need not be marked unless-they are removed from storage containers for.use.
(f). Reproduction-and destruction of matter containing Safeguards Information - (1)
Safeguards Information -may be reproduced to the minimum extent necessary consistent with need without permission of the originator.
(2)
Documents or other matter containing Safeguards,Information may be destroyed by any method that assures complete destruction of the Safeguards Information they contain. -
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(g), External-transmission of documents and material - (1)
Documents or other matter containing-SafeguardsLInformation, when transmitted outside
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- Jn authorizedLplace of use or. storage, shall be packaged to preclude 'disclo-
.sure of theLpresence ofl protected-information.
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'(2)
Safeguards Information may be transported by messenger-courier,
- United States first' class,. registered, express, or certified mail, or by
.any individual authorized access pursuant to 573.21(c).
(3) Except under emergency or extraordinary conditions, Safeguards Information -shall be transmitted only by protected telecommunications cir-cuits (including facsimile) approved by the NRC.
Physcial security events required to be reported pursuant to 573.71 are considered to be extraordinary conditions.
(h) Use of automatic data processing ( ADP) systems - Safeguards Information may be processed or produced on an ADP system provided that the system is self-contained within the licensee's or his contractor's facility and requires the use of an entry code for access to stored in-formation.
0ther systems may be used.if approved for security by the NRC.
(i)
Removal from Safeguards Information -category - Documents-originally. containing Safeguards Information shall be removed from the-
' Safeguards Information category whenever the information.no longer meets the criteria contained in this section.
14.
Section 73.80 is revised to read as follows:
I 73.80 Violations
..a injunction or other court order may be obtained prohibiting any violation of any provision of the Atomic Energy Act of 1954, as amended, m
~
759:G or any repulation or order issued thereunder.. A court order may be obtained for the payment of a civil penalty imposed pursuant to section 234 of-the Act for violation of section 53, 57, 62, 63, 81, 82,101,103,104,107,109, or 147
.of the Act, or section 206 of the Energy Reorganization Act of 1974..or i
any rule, regulation, or order issued thereunder, or any terr:, condition, or limitation of any._ license issued thereunder, or for any violation ~ for which a -license may be revoked under section 186 of the Act.
Any person who will-fully violates any provision of the Act or any regulation or order issued there-under may be guilty of a crima and, upon conviction, may be punished by fine or imprisonment or both, as provided by law.
Dated at Washington, D.C. this [f7 day of M
For the U. S. Nuclear Regulatory Comission n
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L JM C_
Samuel J. CnilK
' Secretary of th Comission
.