NRC Ups Nuke Safeguards Information Protection

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12 December 2006

[Federal Register: December 12, 2006 (Volume 71, Number 238)]

[Notices]

[Page 74567-74571]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr12de06-128]

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NUCLEAR REGULATORY COMMISSION

[EA-06-289]

In the Matter of All Licensees Who Possess Radioactive Material

In Quantities of Concern and All Other Persons Who Obtain Safeguards

Information Described Herein; Order Imposing Requirements for the

Protection of Certain Safeguards Information (Effective Immediately)

The Licensees, identified in Attachment 1 \1\ to this Order, hold

licenses issued in accordance with the Atomic Energy Act of 1954, by

the U.S. Nuclear Regulatory Commission (NRC or Commission) or an

Agreement State, authorizing them to possess and transfer items

containing radioactive material quantities of concern. The NRC intends

to issue security Orders to these licensees in the near future. Orders

will be issued to both NRC and Agreement State materials licensees who

may transport radioactive material quantities of concern. The Orders

will require compliance with specific Additional Security Measures to

enhance the security for transport of certain radioactive material

quantities of concern. The NRC will issue Orders to both NRC and

Agreement State licensees under its authority to protect the common

defense and security, which has not been relinquished to the Agreement

States. The Commission has determined that these documents will contain

Safeguards Information (SGI), will not be released to the public, and

must be protected from unauthorized disclosure. Therefore, the

Commission is imposing the requirements, as set forth in Attachments 2

and 3 to this Order and in Order EA-06-290, so that affected Licensees

can receive these documents. This Order also imposes requirements for

the protection of SGI in the hands of any person,\2\ whether or not a

licensee of the Commission, who produces, receives, or acquires SGI.

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\1\ Attachment 1 contains sensitive information and will not be

released to the public.

\2\ Person means (1) any individual, corporation, partnership,

firm, association, trust, estate, public or private institution,

group, government agency other than the Commission or the

Department, except that the Department shall be considered a person

with respect to those facilities of the Department specified in

section 202 of the Energy Reorganization Act of 1974 (88 Stat.

1244), any State or any political subdivision of, or any political

entity within a State, any foreign government or nation or any

political subdivision of any such government or nation, or other

entity; and (2) any legal successor, representative, agent, or

agency of the foregoing.

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The Commission has broad statutory authority to protect and

prohibit the unauthorized disclosure of SGI. Section 147 of the Atomic

Energy Act of 1954, as amended, grants the Commission explicit

authority to ``* * * issue such orders, as necessary to prohibit the

unauthorized disclosure of safeguards information * * *'' This

authority extends to information concerning transfer of special nuclear

material, source material, and byproduct material. Licensees and all

persons who produce, receive, or acquire SGI must ensure proper

handling and protection of SGI to avoid unauthorized disclosure in

accordance with the specific requirements for the protection of SGI

contained in Attachments 2 and 3 to this Order. The Commission hereby

provides notice that it intends to treat violations of the requirements

contained in Attachments 2 and 3 to this Order applicable to the

handling and unauthorized disclosure of SGI as serious breaches of

adequate protection of the public health and safety and the common

defense and security of the United States. Access to SGI is limited to

those persons who have established a need-to-know the information, are

considered to be trustworthy and reliable, and meet the requirements of

Order EA-06-290. A need-to-know means a determination by a person

having responsibility for protecting SGI that a proposed recipient's

access to SGI is necessary in the performance of official, contractual,

or licensee duties of employment. Licensees and all other persons who

obtain SGI must ensure that they develop, maintain and implement strict

policies and procedures for the proper handling of SGI to prevent

unauthorized disclosure, in accordance with the requirements in

Attachments 2 and 3 to this Order. All licensees must ensure that all

contractors whose employees may have access to SGI either adhere to the

licensee's policies and procedures on SGI or develop, maintain and

implement their own acceptable policies and procedures. The licensees

remain responsible for the conduct of their contractors. The policies

and procedures necessary to ensure compliance with applicable

requirements contained in Attachments 2 and 3 to this Order must

address, at a minimum, the following: the general performance

requirement that each person who produces, receives, or acquires SGI

shall ensure that SGI is protected against unauthorized disclosure;

protection of SGI at fixed sites, in use and in storage, and while in

transit; correspondence containing SGI; access to SGI; preparation,

marking, reproduction and destruction of documents; external

transmission of documents; use of automatic data processing systems;

removal of the SGI category; the need-to-know the information; and

background checks to determine access to the information.

In order to provide assurance that the licensees are implementing

prudent measures to achieve a consistent level of protection to

prohibit the unauthorized disclosure of Safeguards Information, all

licensees who hold licenses issued by the NRC or an Agreement State

authorizing them to possess and who may transport items containing

radioactive material quantities of concern shall implement the

requirements identified in Attachments 2 and 3 to this Order. The

Commission recognizes that licensees may have already initiated many of

the measures set forth in Attachments 2 and 3 to this Order for

handling of SGI in conjunction with current NRC license requirements or

previous NRC Orders. Additional measures set forth in Attachments 2 and

3 to this Order should be incorporated into the licensee's current

program for SGI. In addition, pursuant to 10 CFR 2.202, I find that in

light of the common defense and security matters identified above,

which warrant the issuance of this Order, the public health, safety and

interest require that this Order be effective immediately.

III

Accordingly, pursuant to Sections 81, 147, 161b, 161i, 161o, 182

and 186 of the Atomic Energy Act of 1954, as amended, and the

Commission's regulations in 10 CFR 2.202, 10 CFR Part 30, 10 CFR Part

32, 10 CFR Part 35, and 10 CFR Part 70, it is hereby ordered, effective

immediately, that all licensees identified in attachment 1 to this

order and all other persons who produce, receive, or acquire the

additional security measures identified above (whether draft or final)

or any related SGI shall comply with the requirements of attachments 2

and 3 to this order.

The Director, Office of Federal and State Materials and

Environmental

[[Page 74568]]

Management Programs, may, in writing, relax or rescind any of the above

conditions upon demonstration of good cause by the licensee.

In accordance with 10 CFR 2.202, the Licensee must, and any other

person adversely affected by this Order may, submit an answer to this

Order, and may request a hearing on this Order, within twenty (20) days

of the date of this Order. Where good cause is shown, consideration

will be given to extending the time to request a hearing. A request for

extension of time in which to submit an answer or request a hearing

must be made in writing to the Director, Office of Federal and State

Materials and Environmental Management Programs, U.S. Nuclear

Regulatory Commission, Washington, DC 20555, and include a statement of

good cause for the extension. The answer may consent to this Order.

Unless the answer consents to this Order, the answer shall, in writing

and under oath or affirmation, specifically set forth the matters of

fact and law on which the Licensee or other person adversely affected

relies and the reasons as to why the Order should not have been issued.

Any answer or request for a hearing shall be submitted to the

Secretary, Office of the Secretary of the Commission, U.S. Nuclear

Regulatory Commission, ATTN: Rulemakings and Adjudications Staff,

Washington, DC 20555. Copies also shall be sent to the Director, Office

of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory

Commission, Washington, DC 20555, to the Assistant General Counsel for

Materials Litigation and Enforcement at the same address, and to the

Licensee if the answer or hearing request is by a person other than the

Licensee. Because of possible delays in delivery of mail to United

States Government offices, it is requested that answers and requests

for hearing be transmitted to the Secretary of the Commission either by

means of facsimile transmission to 301-415-1101 or by e-mail to

hearingdocket@nrc.gov and also to the Office of the General Counsel

either by means of facsimile transmission to 301-415-3725 or by e-mail

to OGCMailCenter@nrc.gov. If a person other than the Licensee requests

a hearing, that person shall set forth with particularity the manner in

which his interest is adversely affected by this Order and shall

address the criteria set forth in 10 CFR 2.309.

If a hearing is requested by the Licensee or a person whose

interest is adversely affected, the Commission will issue an Order

designating the time and place of any hearing. If a hearing is held,

the issue to be considered at such hearing shall be whether this Order

should be sustained.

Pursuant to 10 CFR 2.202(c)(2)(i), the Licensee may, in addition to

demanding a hearing, at the time the answer is filed or sooner, move

the presiding officer to set aside the immediate effectiveness of the

Order on the ground that the Order, including the need for immediate

effectiveness, is not based on adequate evidence but on mere suspicion,

unfounded allegations, or error. In the absence of any request for

hearing, or written approval of an extension of time in which to

request a hearing, the provisions specified in Section III above shall

be final twenty (20) days from the date of this Order without further

order or proceedings. If an extension of time for requesting a hearing

has been approved, the provisions specified in Section III shall be

final when the extension expires if a hearing request has not been

received.

An answer or a request for hearing shall not stay the immediate

effectiveness of this order.

Dated this 1st day of December 2006.

For the Nuclear Regulatory Commission.

Charles L. Miller,

Director, Office of Federal and State Materials and Environmental

Management Programs.

Attachments:

1. List of Applicable Materials Licensees.

2. Modified Handling Requirements for the Protection of Certain

Safeguards Information (SGI-M).

3. Trustworthy and Reliability Requirements for Individuals

Handling Safeguards Information.

Attachment 1: List of Applicable Materials Licensees Redacted

Attachment 2: Modified Handling Requirements for the Protection of

Certain Safeguards Information (SGI-M)

Modified Handling Requirements for the Protection of Certain Safeguards

Information (SGI-M)

General Requirement

Information and material that the U.S. Nuclear Regulatory

Commission (NRC) determines are safeguards information must be

protected from unauthorized disclosure. In order to distinguish

information needing modified protection requirements from the

safeguards information for reactors and fuel cycle facilities that

require a higher level of protection, the term ``Safeguards

Information-Modified Handling'' (SGI-M) is being used as the

distinguishing marking for certain materials licensees. Each person who

produces, receives, or acquires SGI-M shall ensure that it is protected

against unauthorized disclosure. To meet this requirement, licensees

and persons shall establish and maintain an information protection

system that includes the measures specified below. Information

protection procedures employed by state and local police forces are

deemed to meet these requirements.

Persons Subject to These Requirements

Any person, whether or not a licensee of the NRC, who produces,

receives, or acquires SGI-M is subject to the requirements (and

sanctions) of this document. Firms and their employees that supply

services or equipment to materials licensees would fall under this

requirement if they possess facility SGI-M. A licensee must inform

contractors and suppliers of the existence of these requirements and

the need for proper protection. (See more under Conditions for Access.)

State or local police units who have access to SGI-M are also

subject to these requirements. However, these organizations are deemed

to have adequate information protection systems. The conditions for

transfer of information to a third party, i.e., need-to-know, would

still apply to the police organization as would sanctions for unlawful

disclosure. Again, it would be prudent for licensees who have

arrangements with local police to advise them of the existence of these

requirements.

Criminal and Civil Sanctions

The Atomic Energy Act of 1954, as amended, explicitly provides 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 safeguards

information is a felony subject to criminal penalties in the form of

fines or imprisonment, or both. See sections 147b. and 223 of the Act.

Conditions for Access

Access to SGI-M beyond the initial recipients of the order will be

governed by the background check requirements imposed by the order.

Access to SGI-M by licensee employees, agents, or contractors must

include both an appropriate need-to-know determination by the licensee,

as well as a determination concerning the trustworthiness of

individuals having access to the information. Employees of an

organization affiliated with the licensee's company, e.g., a parent

company, may be considered as

[[Page 74569]]

employees of the licensee for access purposes.

Need-to-Know

Need-to-know is defined as a determination by a person having

responsibility for protecting SGI-M that a proposed recipient's access

to SGI-M is necessary in the performance of official, contractual, or

licensee duties of employment. The recipient should be made aware that

the information is SGI-M and those having access to it are subject to

these requirements as well as criminal and civil sanctions for

mishandling the information.

Occupational Groups

Dissemination of SGI-M is limited to individuals who have an

established need-to-know and who are members of certain occupational

groups. These occupational groups are:

A. An employee, agent, or contractor of an applicant, a licensee,

the Commission, or the United States Government;

B. A member of a duly authorized committee of the Congress;

C. The Governor of a State or his designated representative;

D. 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;

E. A member of a state or local law enforcement authority that is

responsible for responding to requests for assistance during safeguards

emergencies; or

F. A person to whom disclosure is ordered pursuant to Section

2.709(f) of Part 2 of Title 10 of the Code of Federal Regulations.

G. State Radiation Control Program Directors (and State Homeland

Security Directors) or their designees.

In a generic sense, the individuals described above in (A) through

(G) are considered to be trustworthy by virtue of their employment

status. For non-governmental individuals in group (A) above, a

determination of reliability and trustworthiness is required.

Discretion must be exercised in granting access to these individuals.

If there is any indication that the recipient would be unwilling or

unable to provide proper protection for the SGI-M, they are not

authorized to receive SGI-M.

Information Considered for Safeguards Information Designation

Information deemed SGI-M is information the disclosure of which

could reasonably be expected to have a significant adverse effect on

the health and safety of the public or the common defense and security

by significantly increasing the likelihood of theft, diversion, or

sabotage of materials or facilities subject to NRC jurisdiction.

SGI-M identifies safeguards information which is subject to these

requirements. These requirements are necessary in order to protect

quantities of nuclear material significant to the health and safety of

the public or common defense and security.

The overall measure for consideration of SGI-M is the usefulness of

the information (security or otherwise) to an adversary in planning or

attempting a malevolent act. The specificity of the information

increases the likelihood that it will be useful to an adversary.

Protection While in Use

While in use, SGI-M shall be under the control of an authorized

individual. This requirement is satisfied if the SGI-M is attended by

an authorized individual even though the information is in fact not

constantly being used. SGI-M, therefore, within alarm stations,

continuously manned guard posts or ready rooms need not be locked in

file drawers or storage containers.

Under certain conditions the general control exercised over

security zones or areas would be considered to meet this requirement.

The primary consideration is limiting access to those who have a need-

to-know. Some examples would be:

Alarm stations, guard posts and guard ready rooms;

Engineering or drafting areas if visitors are escorted and

information is not clearly visible;

Plant maintenance areas if access is restricted and information is

not clearly visible; Administrative offices (e.g., central records or

purchasing) if visitors are escorted and information is not clearly

visible;

Protection While in Storage

While unattended, SGI-M shall be stored in a locked file drawer or

container. Knowledge of lock combinations or access to keys protecting

SGI-M shall be limited to a minimum number of personnel for operating

purposes who have a ``need-to-know'' and are otherwise authorized

access to SGI-M in accordance with these requirements. Access to lock

combinations or keys shall be strictly controlled so as to prevent

disclosure to an unauthorized individual.

Transportation of Documents and Other Matter

Documents containing SGI-M when transmitted outside an authorized

place of use or storage shall be enclosed in two sealed envelopes or

wrappers. The inner envelope or wrapper shall contain the name and

address of the intended recipient, and be marked both sides, top and

bottom with the words ``Safeguards Information--Modified Handling.''

The outer envelope or wrapper must be addressed to the intended

recipient, must contain the address of the sender, and must not bear

any markings or indication that the document contains SGI-M.

SGI-M may be transported by any commercial delivery company that

provides nation-wide overnight service with computer tracking features,

U.S. first class, registered, express, or certified mail, or by any

individual authorized access pursuant to these requirements.

Within a facility, SGI-M may be transmitted using a single opague

envelope. It may also be transmitted within a facility without single

or double wrapping, provided adequate measures are taken to protect the

material against unauthorized disclosure. Individuals transporting SGI-

M should retain the documents in their personal possession at all times

or ensure that the information is appropriately wrapped and also

secured to preclude compromise by an unauthorized individual.

Preparation and Marking of Documents

While the NRC is the sole authority for determining what specific

information may be designated as ``SGI-M,'' originators of documents

are responsible for determining whether those documents contain such

information. Each document or other matter that contains SGI-M shall be

marked ``Safeguards Information--Modified Handling'' in a conspicuous

manner on the top and bottom of the first page to indicate the presence

of protected information. The first page of the document must also

contain (i) the name, title, and organization of the individual

authorized to make a SGI-M determination, and who has determined that

the document contains SGI-M, (ii) the date the document was originated

or the determination made, (iii) an indication that the document

contains SGI-M, and (iv) an indication that unauthorized disclosure

would be subject to civil and criminal sanctions. Each additional page

shall be marked in a conspicuous fashion at the top and bottom with

letters denoting ``Safeguards Information--Modified Handling.''

In additional to the ``Safeguards Information--Modified Handling''

markings at the top and bottom of each

[[Page 74570]]

page, transmittal letters or memoranda which do not in themselves

contain SGI-M shall be marked to indicate that attachments or

enclosures contain SGI-M but that the transmittal does not (e.g.,

``When separated from SGI-M enclosure(s), this document is

decontrolled'').

In addition to the information required on the face of the

document, each item of correspondence that contains SGI-M shall, by

marking or other means, clearly indicate which portions (e.g.,

paragraphs, pages, or appendices) contain SGI-M and which do not.

Portion marking is not required for physical security and safeguards

contingency plans.

All documents or other matter containing SGI-M in use or storage

shall be marked in accordance with these requirements. A specific

exception is provided for documents in the possession of contractors

and agents of licensees that were produced more than one year prior to

the effective date of the order. Such documents need not be marked

unless they are removed from file drawers or containers. The same

exception applies to old documents stored away from the facility in

central files or corporation headquarters.

Since information protection procedures employed by state and local

police forces are deemed to meet NRC requirements, documents in the

possession of these agencies need not be marked as set forth in this

document.

Removal From SGI-M Category

Documents containing SGI-M shall be removed from the SGI-M category

(decontrolled) only after the NRC determines that the information no

longer meets the criteria of SGI-M. Licensees have the authority to

make determinations that specific documents which they created no

longer contain SGI-M information and may be decontrolled. Consideration

must be exercised to ensure that any document decontrolled shall not

disclose SGI-M in some other form or be combined with other unprotected

information to disclose SGI-M.

The authority to determine that a document may be decontrolled may

be exercised only by, or with the permission of, the individual (or

office) who made the original determination. The document shall

indicate the name and organization of the individual removing the

document from the SGI-M category and the date of the removal. Other

persons who have the document in their possession should be notified of

the decontrolling of the document.

Reproduction of Matter Containing SGI-M

SGI-M may be reproduced to the minimum extent necessary consistent

with need without permission of the originator. Newer digital copiers

which scan and retain images of documents represent a potential

security concern. If the copier is retaining SGI-M information in

memory, the copier cannot be connected to a network. It should also be

placed in a location that is cleared and controlled for the authorized

processing of SGI-M information. Different copiers have different

capabilities, including some which come with features that allow the

memory to be erased. Each copier would have to be examined from a

physical security perspective.

Use of Automatic Data Processing (ADP) Systems

SGI-M may be processed or produced on an ADP system provided that

the system is assigned to the licensee's or contractor's facility and

requires the use of an entry code/password for access to stored

information. Licensees are encouraged to process this information in a

computing environment that has adequate computer security controls in

place to prevent unauthorized access to the information. An ADP system

is defined here as a data processing system having the capability of

long term storage of SGI-M. Word processors such as typewriters are not

subject to the requirements as long as they do not transmit information

off-site. (Note: if SGI-M is produced on a typewriter, the ribbon must

be removed and stored in the same manner as other SGI-M information or

media.) The basic objective of these restrictions is to prevent access

and retrieval of stored SGI-M by unauthorized individuals, particularly

from remote terminals. Specific files containing SGI-M will be password

protected to preclude access by an unauthorized individual. The

National Institute of Standards and Technology (NIST) maintains a

listing of all validated encryption systems at http://csrc.nist.gov/cryptval/140-1/1401val.htm.

SGI-M 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 NIST has

validated as conforming to Federal Information Processing Standards

(FIPS). SGI-M files shall be properly labeled as ``Safeguards

Information--Modified Handling'' and saved to removable media and

stored in a locked file drawer or cabinet.

Telecommunications

SGI-M may not be transmitted by unprotected telecommunications

circuits except under emergency or extraordinary conditions. For the

purpose of this requirement, emergency or extraordinary conditions are

defined as any circumstances that require immediate communications in

order to report, summon assistance for, or respond to a security event

(or an event that has potential security significance).

This restriction applies to telephone, telegraph, teletype,

facsimile circuits, and to radio. Routine telephone or radio

transmission between site security personnel, or between the site and

local police, should be limited to message formats or codes that do not

disclose facility security features or response procedures. Similarly,

call-ins during transport should not disclose information useful to a

potential adversary. Infrequent or non-repetitive telephone

conversations regarding a physical security plan or program are

permitted provided that the discussion is general in nature.

Individuals should use care when discussing SGI-M at meetings or in

the presence of others to insure that the conversation is not overheard

by persons not authorized access. Transcripts, tapes or minutes of

meetings or hearings that contain SGI-M shall be marked and protected

in accordance with these requirements.

Destruction

Documents containing SGI-M should be destroyed when no longer

needed. They may be destroyed by tearing into small pieces, burning,

shredding or any other method that precludes reconstruction by means

available to the public at large. Piece sizes one half inch or smaller

composed of several pages or documents and thoroughly mixed would be

considered completely destroyed.

Attachment 3: Trustworthy and Reliability Requirements for Individuals

Handling Safeguards Information

Trustworthiness and Reliability Requirements for Individuals Handling

Safeguards Information

In order to ensure the safe handling, use, and control of

information designated as Safeguards Information, each licensee shall

control and limit access to the information to only those individuals

who have established the need-to-know the information, and are

considered to be trustworthy and reliable. Licensees shall document the

basis for concluding that there is

[[Page 74571]]

reasonable assurance that individuals granted access to Safeguards

Information are trustworthy and reliable, and do not constitute an

unreasonable risk for malevolent use of the information.

The Licensee shall comply with the requirements of this attachment:

1. The trustworthiness and reliability of an individual shall be

determined based on a background investigation:

(a) The background investigation shall address at least the past

three (3) years, and, at a minimum, include verification of employment,

education, and personal references. The licensee shall also, to the

extent possible, obtain independent information to corroborate that

provided by the employee (i.e., seeking references not supplied by the

individual).

(b) If an individual's employment has been less than the required

three (3) year period, educational references may be used in lieu of

employment history.

The licensee's background investigation requirements may be

satisfied for an individual that has an active Federal security

clearance.

2. The licensee shall retain documentation regarding the

trustworthiness and reliability of individual employees for three years

after the individual's employment ends.

[FR Doc. E6-21044 Filed 12-11-06; 8:45 am]

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