Protection of Safeguards Information, 63546-63582 [E8-24904]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Rules and Regulations]
[Pages 63546-63582]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24904]



[[Page 63545]]

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Part II





Nuclear Regulatory Commission





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10 CFR Parts 2, 30, 40, et al.,



Protection of Safeguards Information; Final Rule

Federal Register / Vol. 73 , No. 207 / Friday, October 24, 2008 / 
Rules and Regulations

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NUCLEAR REGULATORY COMMISSION

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

RIN 3150-AH57
[NRC-2005-0001]


Protection of Safeguards Information

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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

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

ADDRESSES: You can access publicly available documents related to this 
document using the following methods:
    Federal e-Rulemaking Portal: Go to https://www.regulations.gov and 
search for documents filed under Docket ID NRC-2005-0001. Address 
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail 
Carol.Gallagher@nrc.gov.
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee, publicly available documents at the NRC's PDR, Public 
File Area O1-F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS):
    Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http:/
/www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to 
pdr.resource@nrc.gov.

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

SUPPLEMENTARY INFORMATION:

I. Background
II. Need for Rule
III. Purpose of Rulemaking
IV. Discussion
    A. Resolution of Public Comments on the Revised Proposed Rule
    1. Overview of Comments on the Revised Proposed Rule
    2. Comments and Issues, and Their Resolution in the Final Rule
    B. Analysis of Changes Made in the Final Rule to the Text of the 
Revised Proposed Rule
V. Criminal Penalties
VI. Agreement State Issues
VII. Voluntary Consensus Standards
VIII. Finding of No Significant Impact: Environmental Assessment
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Certification
XII. Backfit Analysis
XIII. Congressional Review Act

I. Background

    On February 11, 2005 (70 FR 7196), the NRC published a proposed 
rule to amend 10 CFR parts 2, 30, 40, 50, 52, 60, 63, 70, 71, 72, 73, 
76, and 150 governing the handling of Safeguards Information (SGI) and 
to create a new category of protected material, Safeguards 
Information--Modified Handling (SGI-M). Subsequently, Congress passed 
the Energy Policy Act of 2005 (EPAct), Public Law No. 109-58, 119 Stat. 
594. Section 652 of the EPAct amended section 149 of the Atomic Energy 
Act of 1954, as amended (AEA) to require fingerprinting, for criminal 
history records check purposes, of a broader class of persons. Before 
the EPAct, the NRC's fingerprinting authority was limited to requiring 
licensees and applicants for a license to operate a nuclear power 
reactor under 10 CFR part 50 to fingerprint individuals prior to 
granting access to SGI. The EPAct expanded the NRC's authority to 
require fingerprinting of individuals before granting them access to 
SGI. Under the EPAct, fingerprinting by the following individuals or 
entities is necessary before granting access to SGI: (1) Individuals 
licensed or certified to engage in an activity subject to regulation by 
the Commission, including utilization facilities; (2) Individuals who 
have filed an application for a license or certificate to engage in 
Commission-regulated activities; and (3) Individuals who have notified 
the Commission in writing of an intent to file an application for 
licensing, certification, permitting, or approval of a product or 
activity subject to regulation by the Commission.
    The EPAct preserved the Commission's authority in Section 149 to 
relieve by rule certain persons from the fingerprinting, 
identification, and criminal history records checks required for access 
to SGI. The Commission exercised that authority to relieve by rule 
certain categories of persons from those requirements, including 
Federal, State, and local officials involved in security planning and 
incident response; Agreement State employees who evaluate licensee 
compliance with NRC-issued security-related orders; members of Congress 
who request SGI as part of their oversight function; and certain 
foreign representatives. These exemptions are based on the Commission's 
findings that interrupting those individuals' access to SGI to perform 
fingerprinting and criminal history records checks (1) would harm vital 
inspection, oversight, planning, and enforcement functions, (2) would 
impair communications among the NRC, its licensees, and first 
responders in the event of an imminent security threat or other 
emergency, and (3) could strain the Commission's cooperative 
relationships with its international counterparts, and might delay 
needed exchanges of information to the detriment of current security 
initiatives both at home and abroad. The final rule was published in 
the Federal Register

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on June 13, 2006 (71 FR 33989). That final rule was necessary to avoid 
disruption of the Commission's information sharing activities during 
the interim period while the Commission completed the overall revision 
of the SGI-related regulations in this rulemaking.
    SGI is a special category of sensitive unclassified information to 
be protected from unauthorized disclosure under Section 147 of the 
Atomic Energy Act of 1954, as amended (AEA). Although SGI is considered 
to be sensitive unclassified information, it is handled and protected 
more like Classified National Security Information than like other 
sensitive unclassified information (e.g., privacy and proprietary 
information). Part 73, ``Physical Protection of Plants and Materials,'' 
of the NRC's regulations in Title 10 of the Code of Federal Regulations 
(CFR) contains requirements for the protection of SGI. Commission 
orders issued since September 11, 2001, have also imposed requirements 
for the designation and protection of SGI. These requirements apply to 
SGI in the hands of any person, whether or not a licensee of the 
Commission, who produces, receives, or acquires SGI. An individual's 
access to SGI requires both a valid ``need to know'' for the 
information and an authorization based on an appropriate background 
check. Power reactors, certain research and test reactors, and 
independent spent fuel storage installations are examples of the 
categories of licensees currently subject to the provisions of 10 CFR 
part 73 for the protection of SGI. Examples of the types of information 
designated as SGI include the physical security plan for a licensee's 
facility, the design features of a licensee's physical protection 
system, and operational procedures for the licensee's security 
organization.
    The Commission has authority under Section 147 of the AEA to 
designate, by regulation or order, other types of information as SGI. 
For example, Section 147a.(2) allows the Commission to designate as SGI 
a licensee's or applicant's detailed security measures (including 
security plans, procedures and equipment) for the physical protection 
of source material or byproduct material in quantities determined by 
the Commission to be significant to the public health and safety or the 
common defense and security. The Commission has, by order, imposed SGI 
handling requirements on certain categories of these licensees. An 
example is the November 25, 2003, Order issued to certain materials 
licensees.\1\
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    \1\ This Order was published in the Federal Register as ``All 
Licensees Authorized to Manufacture or Initially Transfer Items 
Containing Radioactive Material for Sale or Distribution and Who 
Possess Certain Radioactive Material of Concern and All Persons Who 
Obtain Safeguards Information Described Herein; Order Issued on 
November 25, 2003, Imposing Requirements for the Protection of 
Certain Safeguards Information (Effective Immediately),'' (69 FR 
3397; January 23, 2004).
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    Violations of SGI handling and protection requirements, whether 
those specified in part 73 or those imposed by order, are subject to 
the applicable civil and criminal sanctions. Licensee employees, past 
or present, and all other persons who have had access to SGI have a 
continuing obligation to protect SGI in order to prevent inadvertent 
release and unauthorized disclosure. Information designated as SGI must 
be withheld from public disclosure and must be physically controlled 
and protected. Protection requirements include (1) secure storage; (2) 
document marking; (3) restriction of access; (4) limited reproduction; 
(5) protected transmission; and (6) controls for information processing 
on electronic systems.
    Inadequate protection of SGI, including unauthorized disclosure, 
may result in civil and/or criminal penalties. The AEA explicitly 
provides in Section 147a. that ``any person, whether or not a licensee 
of the Commission, who violates any regulations adopted under this 
section shall be subject to the civil monetary penalties of Section 234 
of this Act.'' Furthermore, willful violation of any regulation or 
order governing SGI is a felony subject to criminal penalties in the 
form of fines or imprisonment, or both, as prescribed in Section 223 of 
the AEA.

II. Need for Rule

    Changes in the threat environment have revealed the need to protect 
as SGI additional types of security information held by a broader group 
of persons, including licensees, applicants, vendors, and certificate 
holders. The regulations in effect prior to this rule did not specify 
all of the types of information that could be designated as SGI and are 
now recognized to be significant to the public health and safety or the 
common defense and security. The unauthorized release of this 
information could result in harm to the public health and safety and 
the Nation's common defense and security, as well as damage to the 
Nation's critical infrastructure, including nuclear power plants and 
other facilities and materials licensed and regulated by the NRC or 
Agreement States.
    Since September 11, 2001, the NRC has issued orders that have 
increased the number of licensees whose security measures will be 
protected as SGI and added types of security information considered to 
be SGI. Orders have been issued to power reactor licensees, fuel cycle 
facility licensees, certain source material licensees, and certain 
byproduct material licensees. Some of the orders expanded the types of 
information to be protected by licensees who already have an SGI 
protection program, such as nuclear power reactor licensees. Other 
orders were issued to licensees that have not previously been subject 
to SGI protection requirements in the regulations, such as certain 
licensees authorized to manufacture or initially transfer items 
containing radioactive material.\2\ Some orders imposed a new 
designation: Safeguards Information-Modified Handling (SGI-M).
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    \2\ See Order (69 FR 3397; January 23, 2004).
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    SGI-M refers to SGI with handling requirements that are modified 
somewhat due to the lower risk posed by unauthorized disclosure of the 
information. The SGI-M protection requirements apply to certain 
security-related information regarding quantities of source, byproduct, 
and special nuclear materials for which the harm caused by unauthorized 
disclosure of information would be less than that for other SGI.
    Some of the requirements imposed by orders that have increased the 
types of information to be considered SGI are not covered by the 
current regulations. Although new SGI requirements could continue to be 
imposed through the issuance of orders, the regulations would not 
reflect current Commission SGI policy and/or requirements.

III. Purpose of Rulemaking

    NRC staff review of the SGI regulatory program indicates that 
changes in the regulations are needed to address issues such as access 
to SGI, types of security information to be protected, and handling and 
storage requirements.
    This rulemaking will:
    (1) Revise the definition of ``need to know'' in 10 CFR 73.2;
    (2) Implement expanded fingerprinting and criminal history records 
check procedures for broader categories of individuals who will have 
access to SGI unless exempt from those requirements;
    (3) Implement a requirement for background checks to determine 
trustworthiness and reliability for

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individuals who will have access to SGI unless exempt from those 
requirements;
    (4) Implement generally applicable requirements for SGI that are 
similar to requirements imposed by the orders;
    (5) Expand the scope of part 73 to include additional categories of 
licensees (e.g., source and byproduct material licensees, research and 
test reactors not previously covered, and fuel cycle facilities not 
previously covered). As expanded, vendors, applicants and certificate 
holders are also within the scope of the rule;
    (6) Expand the types of security information covered by the 
definition of SGI in Sec.  73.2 and the information categories 
described in Sec. Sec.  73.22 and 73.23 to include detailed security 
measures for the physical protection of byproduct, source, and special 
nuclear material; emergency planning scenarios and implementing 
procedures; uncorrected vulnerabilities or weaknesses in a security 
system; and certain training and qualification information;
    (7) Clarify requirements for obtaining access to SGI in the context 
of adjudications and clarify the appeal procedures available;
    (8) Modify the original proposed rule to align it with the final 
rule in 10 CFR 73.59 granting relief from the fingerprinting, 
identification and criminal history records checks and background 
checks for designated categories of individuals; and
    (9) Modify 10 CFR 73.59 to make it consistent with the language and 
structure of the proposed SGI rule.
    In the development of the rule, a graded approach, based on the 
risks and consequences of information disclosure, was used to determine 
which category of licensee or type of information would be subject to 
certain protection requirements. This graded approach was applied to 
issues such as the type of information to be protected, the classes of 
licensees subject to the rule, and the level of handling requirements 
necessary for the various licensees. For example, the graded approach 
allows certain licensees to employ the modified-handling procedures 
introduced in recent orders and now set forth in the SGI-M provisions 
of this final rule.
    The requirements set forth in this final rule are the minimum 
restrictions the Commission finds necessary to protect SGI against 
inadvertent release or unauthorized disclosure which might compromise 
the health and safety of the public or the common defense and security. 
The final rule covers those facilities and materials the Commission has 
already determined need to be protected against theft or sabotage. The 
categories of information constituting SGI relate to the types of 
facilities and the quantities of special nuclear material, source 
material and byproduct material determined by the Commission to be 
significant and therefore subject to protection against unauthorized 
disclosure pursuant to Section 147 of the AEA. Unauthorized release of 
SGI could reduce the deterrence value of systems and measures used to 
protect nuclear facilities and materials and allow for the possible 
compromise of those facilities and materials. Such disclosures could 
also facilitate advance planning by an adversary intent on committing 
acts of theft or sabotage against the facilities and materials within 
the scope of this rule. Further, the Commission has determined, 
pursuant to Section 147a.(3)(B) of the AEA, that the unauthorized 
disclosure of SGI could reasonably be expected to have a significant 
adverse effect on the health and safety of the public or the common 
defense and security by significantly increasing the likelihood of 
theft, diversion, or sabotage of nuclear material or a facility.

IV. Discussion

A. Resolution of Public Comments on the Revised Proposed Rule

1. Overview of Comments on the Revised Proposed Rule
    On February 11, 2005 (70 FR 7196), the Commission published a 
proposed rule and requested public comments. On October 31, 2006 (71 FR 
64004), the Commission published a revised version of the proposed rule 
that responded to comments on the original proposed rule. The revised 
proposed rule also solicited comments on changes and additions to the 
original proposed rule by January 2, 2007. In addition to this general 
solicitation for comments, the revised proposed rule (71 FR 64051) 
solicited specific public comment on the appropriateness of the 
exemptions in the revised provisions in 10 CFR 73.59, as they apply to 
various categories of individuals. The specified categories of 
individuals are exempt from the background check requirements 
(including fingerprinting for a criminal history records check) for 
access to SGI.
    Ten comment letters were received. Copies of those letters are 
available for public inspection and copying for a fee at the NRC Public 
Document Room, 11555 Rockville Pike, Rockville, Maryland, or on the 
NRC's Agencywide Documents Access and Management System, available 
online at: https://www.nrc.gov/reading-rm/adams/web-based.html.
    Two comment letters were from agreement states, six comment letters 
were from industry, one comment letter was from a university with a 
research reactor, and one comment letter was from an individual. The 
comment letters provided various points of view and suggestions for 
clarifications, additions and deletions. Also, although commenters did 
not refer to the request for specific comment, the Commission received 
two comments on Sec.  73.59. Responses to the comments are set forth 
below.
2. Comments and Issues, and Their Resolution in the Final Rule
    General Issues.
    Information in Licenses.
    Comment: A commenter states that although not referenced, 
information about the types and quantities of material listed on a 
license in some cases should be considered SGI when the license 
contains nuclides and quantities of concern. The commenter also states 
that licensees transferring material to another licensee must obtain a 
copy of the recipient's license so this information is easily available 
and in many cases publicly available. According to this commenter, this 
issue needs to be reviewed by NRC and state agencies to assure the 
appropriate level of security is given to standard licensing documents.
    Response: Under existing regulations and practice, licensing 
documents are reviewed to determine if they contain any information 
which constitutes SGI or other information which warrants protection 
from unauthorized disclosure. Generally speaking, information on 
possession limits for radionuclides does not meet the definition of 
SGI. This information, although not categorized as SGI, may be withheld 
from public disclosure if disclosure of the information could raise 
security concerns. For example, in some contexts, information on actual 
quantities possessed in relation to possession limits could raise 
security concerns. Prior to transferring material to another licensee, 
verification that the licensee is authorized to receive the material is 
required by one of the methods provided in Sec.  30.41(d) or in 
Commission orders.
    Interaction with other regulations.
    Comment: Another commenter asserts that the proposed rule conflicts 
with the requirements of 49 CFR part 15, the Department of 
Transportation (DOT) regulations regarding the protection of 
information associated with the transportation of certain types and 
quantities of radioactive materials. The commenter further believes 
that this

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will result in licensees transporting nuclear materials having to 
contend with two separate information protection regulations for the 
same information. The commenter urges the NRC and the DOT to develop a 
coordinated rulemaking regarding this issue.
    Response: This comment was made on the previous proposed rule and a 
response was provided at 71 FR 64024. The commenter has not provided 
any new information, and the Commission continues to conclude that the 
NRC's regulations are not in conflict with the DOT regulations. 
Security plans required by the NRC can be developed so that they also 
comply with DOT requirements.
    Implementation period for the rule.
    Comment: Some commenters believe that the implementation period of 
90 days after publication of the rule is too short. One commenter 
asserts that gaseous diffusion plant licensees will need to review 
existing security plans that integrate protective measures for special 
nuclear material, classified material and other security interest areas 
against existing classification guidance and SGI designation guidance 
to ensure that information is properly designated and marked. A 
commenter believes that for information subject to multiple, 
overlapping protection programs, the 90-day implementation period is 
not sufficient. The commenters believe that at least one year should be 
provided for implementation for power reactors and other licensee 
sites.
    Response: Although many of the requirements in the rule for the 
designation and handling of SGI are similar to the requirements in 
orders issued by the Commission since September 11, 2001, some 
licensees are subject to new requirements in the rule. For example, 
some security orders have required licensees to conduct a criminal 
history records check prior to granting an individual access to SGI, 
but have not imposed the other elements of a background check (at a 
minimum, an individual's employment history, education, and personal 
references). Unless one of the exemptions from the background check 
requirement in Sec.  73.59 applies, licensees will be obligated to 
perform a background check consisting of all of its elements for access 
to SGI. In order to allow sufficient time for licensees to implement 
this new requirement and any others to which a licensee may be subject, 
the Commission is extending the time period for the implementation of 
the final rule from 90 days to 120 days. The Commission does not, 
however, believe that an implementation period of at least one year is 
needed.
    Section-Specific Comments:
    Part 2: Rules of Practice for Domestic Licensing Proceedings and 
Issuance of Orders.
    Comments concerning burdens on the parties to an NRC adjudication.
    Comment: An agreement state commenter predicts that intervenors in 
an adjudication will over-designate the material they create as SGI 
because of the potential threat of civil and criminal penalties for 
unauthorized disclosure of SGI documents. The commenter also believes 
that it is too burdensome for intervenors to determine whether the 
engineering and safety analyses they generate to support a contention 
are SGI. The commenter believes that in light of the above 
difficulties, parties should be allowed to file documents marked ``may 
contain safeguards information,'' which would be treated as SGI pending 
a determination by NRC staff members not involved in the adjudicatory 
proceeding. Although it is not entirely clear from the comment letter, 
the commenter might also be requesting that intervenors not be 
potentially subject to criminal and civil penalties for violating SGI 
requirements.
    Response: In response to a comment on the first proposed rule, the 
Commission acknowledged that there is a tendency to ``err on the safe 
side'' in making SGI designations, and stated that it might make 
appropriate changes if over-designating documents as SGI arises as a 
problem in practice. (71 FR 64020-64021). Eliminating criminal and 
civil sanctions for violating SGI requirements, however, would not be 
among these appropriate changes. The Commission believes that criminal 
and civil sanctions serve a worthwhile purpose in securing compliance 
with SGI provisions, and that these sanctions should apply equally to 
all parties. The AEA explicitly authorizes criminal sanctions for 
willful violations of SGI provisions. See 42 U.S.C. 2167 and 2273.
    The Commission does not accept the commenter's suggestion to allow 
parties to mark pleadings as possibly containing SGI awaiting a 
determination by the NRC staff; the Commission thinks it fair that 
parties be responsible for determining whether the analyses they 
generate contain SGI. The commenter's suggestion, if implemented, would 
allow parties to file documents labeled ``may contain Safeguards 
Information'' without doing a careful analysis. The potential for over-
designating SGI would be much greater under the commenter's suggested 
regime than under the rule as proposed. Until the NRC staff review was 
complete, there would likely be a much larger number of documents 
subject to SGI handling than would be the case under the proposed rule. 
If a party needs assistance, however, in determining whether the 
materials it creates contain SGI, the staff will be available to 
provide advice if requested.
    Comment: An agreement state commenter asserts that proposed Sec.  
73.22(h) allows the decontrol of SGI-marked documents only by, or with 
the approval of, the NRC, and suggests that a mechanism be established 
allowing intervenors to request the NRC staff to decontrol documents, 
or portions thereof. The commenter believes that such a process would 
benefit intervenors by removing from them the burden of having to 
control and store a large mass of documents as SGI. The commenter 
states that destruction might not be a viable option for an intervenor 
to reduce its burdens because of that intervenor's internal document 
retention procedures.
    Response: Contrary to the commenter's understanding, Sec.  73.22(h) 
allows an SGI document to be decontrolled in consultation with the 
person or organization making the original SGI determination, as well 
as by the NRC or with the NRC's approval. The language of 73.22(h) and 
73.23(h) has been modified to make this intent clear. If an intervenor 
no longer believes a document to contain SGI, Sec. Sec.  73.22(h) and 
73.23(h) allow the intervenor to contact either the NRC, or the 
individual or organization making the original SGI determination, for 
an authoritative decontrol determination.
    The Commission is not adopting the commenter's suggestion to have 
the NRC decontrol portions of SGI documents possessed by intervenors. 
Such a task would require the expenditure of substantial resources 
without concomitant gain. For instance, the commenter's stated goal of 
reducing the number of documents requiring SGI handling would not be 
furthered because a partially decontrolled document is still an SGI 
document subject to SGI handling requirements.
    Comment: An agreement state commenter asserts that the proposed 
rule chills a party's right to judicial appeal of an NRC decision that 
may involve SGI because it fails explicitly to give a party to an NRC 
proceeding a right to provide SGI to federal Courts of Appeal (even for 
filings under seal) in support of its judicial filings. The commenter 
believes that the proposed rules are unclear on whether a party would 
need pre-authorization from the NRC before filing SGI with a court. The

[[Page 63550]]

commenter recommends revising part 73 to ensure that NRC rules defer to 
established court procedures so that a party may independently file SGI 
under seal with the court.
    Response: The Commission disagrees that the approach adopted by the 
Commission chills a party's right to judicial appeals of NRC decisions. 
Over the years, it has been rare that a party to an NRC adjudicatory 
proceeding has sought to file SGI in its federal court filings. The 
Commission prefers to consider such matters on a case-by-case basis, 
and, therefore, does not believe it appropriate to address this issue 
through this rulemaking. If this situation were to become frequent, 
rulemaking may be undertaken in the future. In the meantime, parties 
who contemplate filing SGI in judicial appeals of NRC decisions should 
contact the Solicitor of the NRC. The Commission does note that the 
requirement to protect SGI in federal court filings, or in any other 
context, existed under the old rules and is not fundamentally altered 
by these rule changes.
    Comments concerning SGI designation and access determinations.
    Comment: A commenter states that the procedure specified in 
proposed Sec.  2.336(f)(1)(iv) for review of an adverse determination 
on a party's trustworthiness and reliability should avoid any 
appearance of biasing the proceeding, which might occur if the review 
is conducted by the presiding officer of the proceeding. Such a review, 
according to the commenter, would require the presiding officer to 
consider personal information about the party, or the party's attorney, 
consultant, or expert witness to determine whether the person is 
trustworthy and reliable for purposes of having access to SGI. The 
commenter further states that the presiding officer might later be 
called upon to decide the merits of a contention based on other 
considerations, potentially including the credibility and 
persuasiveness of witnesses and advocates. In such circumstances, the 
commenter believes that questions may be raised about whether these 
judgments were improperly affected by personal information. The 
commenter concludes that it would be equally efficient, and avoid any 
appearance of bias, to require that all requests for review be 
presented to the ``Chairman of the Atomic Safety and Licensing Board 
(ASLB) Panel'' [Chief Administrative Judge], who would appoint an 
officer, other than the presiding officer, to review the adverse 
determination. Moreover, the commenter believes that such a process 
would reduce the risk that reviews by the presiding officer would 
adversely affect the schedule for the proceeding.
    Response: The Commission agrees with the commenter and is revising 
the rule to require the designation of a separate officer to review any 
adverse determination on trustworthiness and reliability made by the 
NRC Office of Administration. The Commission is confident that the 
presiding officer of an adjudicatory proceeding is capable of reviewing 
such a determination objectively without affecting the fairness of the 
proceedings. However, the Commission also acknowledges that such an 
arrangement may create the appearance of bias, and thus finds it 
appropriate to require, as a matter of course, that an officer detached 
from the proceedings be appointed to review the adverse determination. 
Section 2.336(f)(1)(iv) has been revised to reflect this. Conforming 
changes have also been made to sections 2.705(c)(3)(iv), 
2.709(f)(1)(iv), and 2.1010(b)(6)(i)(D), which contain similar 
provisions.
    Comment: An agreement state commenter objects to the proposed 
process for making ``need to know'' determinations in NRC adjudications 
and the process for challenging adverse ``need to know'' 
determinations. The commenter believes that the process for making such 
determinations, which is reflected in the definition of ``need to 
know'' in proposed Sec.  73.2, is flawed in that it can place 
responsibility for the determination in the hands of a party 
``adverse'' to an intervenor, whose judgment might be biased. 
Specifically, the commenter notes that the NRC staff would make the 
``need to know'' determination if SGI either was originated by the NRC 
staff or is in the NRC staff's possession. In other cases, the 
originator of the SGI would make the determination, and in some cases 
the originator is the applicant.
    The commenter also believes that the process for making ``need to 
know'' determinations, and challenging adverse determinations, 
``ignores the protections'' of Federal Rule of Civil Procedure 26(b). 
The commenter appears to believe that the process for challenging 
adverse SGI determinations in NRC adjudicatory settings would be 
governed by proposed Sec.  2.336(f)(1)(iv). According to the commenter, 
that section would not protect an intervenor's ``confidential'' and 
privileged information from being disclosed to adverse parties (which 
the commenter asserts includes the NRC staff) because an intervenor's 
rationale for compelling disclosure would have to be served on the 
staff. The commenter asserts that such confidential, privileged 
information could include confidential details about a nontestifying 
witness, attorney work-product, and litigation strategy, that the 
commenter believes might have to be divulged to demonstrate that the 
intervenor has a ``need to know'' for the information.
    From the commenter's discussion of Sec.  2.336(f)(1)(iv) as applied 
to ``need to know'' determinations, it appears that the commenter 
believes that initial determinations are made by the NRC's Office of 
Administration. The commenter fears that this determination might be 
biased due to influence from the NRC staff or its counsel, and that a 
``wall of separation'' should be erected between the NRC staff/counsel 
and the Office of Administration. The commenter concludes by stating 
that the Commission ``must ensure'' that ``need to know'' 
determinations be made by ``an unbiased NRC entity,'' and that, at a 
minimum, the NRC staff/counsel making such determinations (as well as 
the information upon which those determinations are based) be screened 
from the NRC staff/counsel litigating the proceeding.
    Response: Section 2.336(f)(1)(iv) does not govern challenges to 
adverse ``need to know'' determinations. Section 2.336(f)(1)(i) and the 
definition of ``need to know'' in proposed Sec.  73.2 provide that 
disputes over ``need to know'' determinations are to be resolved by the 
presiding officer. Section 2.336(f)(1)(iv) governs disputes over 
``trustworthiness and reliability'' determinations. ``Need to know'' 
and ``trustworthiness and reliability'' are distinct concepts (compare 
the separate definitions for the two terms in proposed Sec.  73.2) 
reflected in separate requirements for access to SGI (see sections 
2.336(f)(1), 73.22(b), and 73.23(b)). Also, the NRC's Office of 
Administration makes all ``trustworthiness and reliability'' 
determinations in adjudications (see section 2.336(f)(1)(iii)-(iv)), 
but ``need to know'' determinations are made by the NRC staff office in 
the best position to make an informed decision about ``need to know'' 
or by the originator (see definition of ``need to know'' in section 
73.2).
    With these clarifications in mind, there are two commenter issues 
to be addressed. The first issue is that the initial ``need to know'' 
determination might reflect a biased judgment made by a party 
``adverse'' to the intervenor. Although a party making the 
determination might be ``adverse'' to an intervenor, that party would 
still have a duty to comply with the rule. In disputed cases, the 
matter would be decided by the presiding officer, who is independent of 
the parties. This basic process is not substantially different

[[Page 63551]]

from other discovery, in which parties may assert privileges to keep 
various information from adverse parties, who can then file a motion to 
compel disclosure.
    The second issue is that to support an intervenor's ``need to 
know'' request before the presiding officer, the intervenor might have 
to reveal to adverse parties confidential information, such as attorney 
work-product, litigation strategy, or confidential details about a 
nontestifying expert. The Commission believes that the ``need to know'' 
requirement will not result in a prejudicial disclosure of an 
intervenor's opinions or strategy. According to the definition in Sec.  
73.2, the ``need to know'' standard is satisfied if the following two 
conditions are met: (1) The information is necessary for the party ``to 
proffer and/or adjudicate a specific contention,'' and (2) the 
recipient has the ability to ``effectively utilize the specific 
Safeguards Information in the proceeding.'' Because an intervenor's 
positions must be specifically stated at the earliest stage of 
litigation (the contention stage), an intervenor's strategy and 
opinions must, to a substantial degree, be made public at the earliest 
stages of litigation.\3\ The first ``need to know'' condition might be 
satisfied based on the face of the contention alone. Even if further 
information is required, a presiding officer reviewing an adjudicatory 
dispute concerning a ``need to know'' determination will probably not 
need to delve much further into an intervenor's strategy than might a 
presiding officer assessing a party's ``need for the information'' in 
challenges to assertions of qualified, as opposed to absolute, 
privileges.\4\ But even if some prejudice were to result, SGI simply 
must be protected from unauthorized disclosure by limiting its 
dissemination only to those who have a ``need to know'' for it and who 
otherwise meet the requirements for access.
---------------------------------------------------------------------------

    \3\ For an intervenor's contention to be admissible under 10 CFR 
2.309(f)(1), the intervenor must state a specific issue of law or 
fact, briefly explain the basis for the contention, provide concise 
statements of alleged fact or expert opinion in support of the 
contention, demonstrate that the contention is material and within 
the proceeding's scope, and provide enough information to show that 
a genuine dispute exists on a material issue of law or fact.
    \4\ See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 
1336, 1344 (D.C. Cir. 1984) (stating that ``[i]n the discovery 
context, when qualified privilege is properly raised, the litigant's 
need is a key factor. Whether the information is disclosed depends 
on the relative weight of the claimant's need and the government's 
interest in confidentiality'').
---------------------------------------------------------------------------

    Satisfying the second ``need to know'' condition for access might 
require the disclosure of details about a non-testifying expert's 
qualifications, but the text of Federal Rule of Civil Procedure 
26(b)(4) protects only the ``facts known or opinions held by'' such 
experts, not inquiries into their qualifications. Although the 
predominant approach of the federal courts apparently requires a 
showing of ``extreme circumstances'' to justify discovery of even the 
identity of a non-testifying expert,\5\ the Commission does not rigidly 
apply the procedures used in federal courts. In NRC adjudicatory 
proceedings, the Commission does not believe that disclosing either the 
identity of such an expert or his or her qualifications will 
substantially prejudice parties. In any event, the need to protect SGI 
is paramount.
---------------------------------------------------------------------------

    \5\ See 8 Charles Alan Wright, Arthur R. Miller & Richard L. 
Marcus, Federal Practice and Procedure, Sec.  2032 (2d ed. 1994).
---------------------------------------------------------------------------

    Comment: A commenter believes that for the purposes of part 2, 
documents should be considered SGI if they have been designated as SGI 
in accordance with part 73. The commenter notes that in the event of a 
dispute about whether a document that has been designated as SGI should 
nevertheless be disclosed, the presiding officer must determine whether 
the person seeking disclosure should be granted access to the SGI 
(i.e., has a need to know and is trustworthy and reliable). The 
commenter also asserts, however, that the presiding officer should not 
consider whether the information in the document meets the definition 
of SGI because presiding officers generally are not inherently 
qualified to determine whether information meets the definition of 
``Safeguards Information.'' The commenter believes that if the 
definition of ``Safeguards Information'' in 10 CFR part 2 is the same 
as the definition in part 73, it will appear that parties may seek a 
determination by the presiding officer on whether the information meets 
that definition. The commenter also believes that it is clear from 
proposed Sec. Sec.  2.336(f)(1), 2.705, 2.709 and 2.1010, which specify 
the grounds for a presiding officer to issue an order requiring 
disclosure of SGI, that a presiding officer would not be authorized to 
issue such an order on the grounds that the information does not meet 
the definition of SGI. The commenter believes this to be appropriate 
and to this end, suggests that Sec.  2.4 ``Safeguards Information'' be 
modified to state, ``Safeguards Information means information that has 
been determined to be Safeguards Information in accordance with 10 CFR 
73.21-23.''
    Response: Contrary to the commenter's belief, the proposed rule 
nowhere prohibits presiding officers from deciding whether information 
in a document meets the definition of SGI. In Private Fuel Storage, 
L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-22, 62 NRC 
542 (2005), the Commission dealt with the issue of a licensing board 
revisiting SGI redactions contained in one of its previously issued 
decisions. The Commission, citing an analogous provision in Sec.  
2.904, directed the licensing board to request the Commission to 
appoint a special adjudicatory employee ``when necessary.'' Id. at 545. 
The Commission believes that presiding officers can also resolve other 
questions concerning the designation of SGI, such as those arising in 
discovery disputes between parties. If a presiding officer believes 
that he or she could benefit from expert assistance in determining 
whether information meets the definition of SGI, he or she can request 
the Commission to appoint a special adjudicatory employee, who will 
assist the Board in making such determinations.
    As for the suggested change to the definition of ``Safeguards 
Information'' in part 2, the proposed definition is based on Section 
147 of the AEA and the Commission has determined that the definition of 
that term in the regulations should be as broad as the statutory 
definition. Based on this definition, Sec. Sec.  73.21, 73.22, and 
73.23 describe types of information included within the scope of the 
statutory definition and include examples of information designated as 
SGI. The Commission believes that a cross-reference to those provisions 
in the definition of SGI is unnecessary.
    Comment: An agreement state commenter objects to the abuse of 
discretion standard in proposed Sec. Sec.  2.709(f)(1)(iv) and 
2.1010(b)(6)(i)(D) \6\ for review by a presiding officer \7\ in 
adjudications of adverse trustworthiness and reliability determinations 
by the NRC Office of Administration. The commenter prefers that such 
determinations be given ``plenary'' review,\8\ and gives the following 
four reasons for its position:
---------------------------------------------------------------------------

    \6\ Sections 2.336(f)(1)(iv), 2.704(c)(3)(iv), 2.709(f)(1)(iv), 
and 2.1010(b)(6)(i)(D) are mirror provisions of one another, with 
slight differences due to the different contexts in which they are 
applied.
    \7\ In licensing proceedings, the presiding officer will 
ordinarily be an Atomic Safety and Licensing Board. 10 CFR 2.4.
    \8\ The Commission believes that by ``plenary'' review the 
commenter means de novo review, in which a determination is reviewed 
without deference to the decision-maker. By contrast, review for 
abuse of discretion involves deference to the determination being 
reviewed.

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[[Page 63552]]

    (1) On contested matters, the NRC staff's safety evaluations are 
subject to ``plenary'' review, not review for an abuse of discretion, 
so the NRC staff's trustworthiness and reliability determinations 
should also be subject to ``plenary'' review. Both categories of issues 
often involve matters of judgment and there is, therefore, no basis to 
distinguish between them.
    (2) Because the Commission itself has ``plenary'' power over its 
staff, limiting the scope of presiding officer review will merely lead 
to an unnecessary and time-consuming proliferation of appeals to the 
Commission to exercise its ``plenary'' power.
    (3) The abuse of discretion standard confuses the roles of an 
adversary party and an independent adjudicator. Under the 
Administrative Procedure Act (APA) and Atomic Energy Act of 1954, as 
amended (AEA), the Commission may delegate adjudicatory decision-making 
authority to a presiding officer and define the scope of Commission 
review of that presiding officer's decision in a narrow fashion. When 
the NRC staff participates as a party in an adjudicatory proceeding, it 
is not performing an adjudicatory function but a litigating function, 
and therefore there is no basis to limit the scope of review of any NRC 
staff decision. There will always be a concern that the NRC staff's 
trustworthiness and reliability determinations will be part of its 
litigating strategy, and this concern can be addressed only if the 
presiding officer or the Commission may exercise ``plenary'' power to 
reverse the staff determination.
    (4) The abuse of discretion review standard does not comply with 
Section 181 of the AEA, which ``requires NRC standards to be the 
`minimum impairment of the procedural rights which would be available 
if * * * safeguards information * * * were not involved.' '' The 
commenter believes that an abuse of discretion standard is not a 
minimum impairment.
    Response: The Commission believes that an abuse of discretion 
standard is appropriate for presiding officer review in adjudications 
of adverse trustworthiness and reliability determinations made by the 
Office of Administration. The Commission chose the abuse of discretion 
standard primarily because trustworthiness and reliability 
determinations rely upon expertise developed through training and 
experience. Office of Administration employees who make these 
determinations possess specialized training and experience in 
evaluating similar information for NRC employee security clearances. 
Because of the Office of Administration's expertise, the Commission 
believes that the office's trustworthiness and reliability 
determinations will generally be sound. A searching, de novo review by 
the presiding officer, therefore, would not be warranted. A presiding 
officer review of adverse trustworthiness and reliability 
determinations under an abuse of discretion standard will not involve 
witness testimony or other procedures that might arguably put the 
presiding officer in a better position to assess the evidence 
underlying a trustworthiness and reliability determination.\9\
---------------------------------------------------------------------------

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

    The following four numbered paragraphs respond in order to the four 
numbered reasons given in the comment above:
    (1) The commenter's comparison of the review of Office of 
Administration trustworthiness and reliability determinations to the 
review of staff safety evaluations is invalid. The commenter is 
mistaken in stating that the staff's safety evaluations are subject to 
review in contested licensing proceedings. Well-established Commission 
precedent provides that the license application, and not the staff's 
safety review, is the subject of a contested licensing proceeding.\10\
---------------------------------------------------------------------------

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

    (2) The Commission does not believe that a limited scope of 
presiding officer review will lead to a proliferation of appeals to the 
Commission. First, most Commission adjudicatory proceedings do not 
involve access to SGI, and there is no evidence to indicate that 
proceedings involving SGI will often lead to disputes over 
trustworthiness and reliability determinations. Second, the Commission 
does not agree that the level of presiding officer review of adverse 
trustworthiness and reliability determinations will have an effect on 
the number of appeals to the Commission. Moreover, the commenter has 
submitted no evidence indicating that an increase in appeals is likely.
    The commenter also asserts that a limited scope of review by the 
presiding officer is unnecessary and time consuming because the 
Commission has ``plenary'' power over the NRC staff, which is being 
read to mean that the Commission can review NRC staff decisions de 
novo, without giving deference to them. The commenter's position 
appears to be based on a belief that the Commission on appeal would 
often, or always, exercise de novo review of the Office of 
Administration's adverse trustworthiness and reliability 
determinations, and that it would, therefore, make more sense to have 
de novo review exercised at the presiding officer level since de novo 
review is inevitable at some point. This position, however, overlooks 
that the Commission does not exercise de novo review in many 
situations,\11\ and there is no reason to believe that the Commission 
will often, or always, exercise de novo review of adverse 
trustworthiness and reliability determinations. The Commission is, in 
fact, expressing with this rulemaking its judgment that trustworthiness 
and reliability determinations made by the Office of Administration 
warrant the deference that is reflected in the abuse of discretion 
standard.
---------------------------------------------------------------------------

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

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

[[Page 63553]]

determination on trustworthiness and reliability will be improperly 
influenced.
    It also appears that the commenter is suggesting that an ``abuse of 
discretion'' standard for Office of Administration trustworthiness and 
reliability determinations is contrary to the APA and the AEA, but 
points to no specific provision of either the APA or the AEA that 
supports such a position. The Commission is not aware of any provision 
of the APA or the AEA that forbids an ``abuse of discretion'' review 
standard or that forbids deference to an administrative determination.
    (4) The Commission disagrees with the commenter's assertion that an 
``abuse of discretion'' review standard for trustworthiness and 
reliability determinations violates the ``minimum impairment'' 
requirement in Section 181 of the AEA. Section 181 of the AEA does not 
apply to the scope of review for adverse trustworthiness and 
reliability determinations. The impairments referred to in Section 181 
are impairments of procedural rights that would be available if the 
proceeding did not involve SGI, or in other words, procedural rights 
that are normally available in a proceeding. An example of how the SGI 
rule impacts normally available procedural rights can be found in the 
context of discovery in adjudications. In discovery, a party has a 
normally available procedural right to information available under the 
rules of discovery. The requirement that an individual be found 
trustworthy and reliable to access SGI is an impairment of this 
normally available procedural right whenever a party is seeking 
discoverable information designated as SGI. In such circumstances, the 
party faces an additional hurdle (meeting the trustworthiness and 
reliability requirement) that would not be faced if the proceeding did 
not involve SGI. The trustworthiness and reliability requirement, 
however, is the minimum impairment necessary to protect SGI and 
complies with Section 181.
    The process for making trustworthiness and reliability 
determinations, and the review standard for adverse determinations, are 
not impairments of normally available procedural rights but, rather, 
components of a process intended to produce sound trustworthiness and 
reliability determinations. The only normally available procedural 
right that might be at issue here is the right to access discoverable 
information, but the trustworthiness and reliability requirement is the 
impairment of that right, not any subsequent adjudicatory review 
procedures. As a general matter, review of a determination is provided 
because of the possibility that the determination was erroneous or 
otherwise improper. The standard for review and the procedures 
attendant to review are matters for Commission judgment and are based 
upon the nature of the determination, its importance, and the 
likelihood that the determination may be erroneous or improper, among 
other factors. In the case of trustworthiness and reliability 
determinations in adjudications, the Commission has decided that the 
procedures provided in Sec. Sec.  2.336(f)(1)(ii)-(iv) and 73.57(e) are 
appropriate to provide for sound trustworthiness and reliability 
determinations in a manner consistent with conducting reasonably 
expeditious proceedings.
    Comment: An agreement state commenter believes that the fifteen-day 
deadline for presiding officer decisions on challenges, in adjudicatory 
contexts, to adverse trustworthiness and reliability determinations is 
not reasonable because the NRC staff will not commit to any reasonable 
deadline for its own determination.
    Response: The Commission is not lengthening the fifteen-day period 
in Sec. Sec.  2.336(f)(1)(iv), 2.704(c)(3)(iv), 2.709(f)(1)(iv), and 
2.1010(b)(6)(i)(D) for presiding officer decisions on challenges to 
adverse trustworthiness and reliability determinations. The presiding 
officer will not be conducting a trial-type hearing and will not be 
performing a searching, de novo review of the evidence. Rather, the 
presiding officer will be reviewing for abuse of discretion and will 
base this review on a record compiled by the Office of Administration 
as supplemented by one round of pleadings from the parties. The 
Commission believes that fifteen days is sufficient time for this 
review and that providing a longer period would unnecessarily delay 
proceedings without a compensating benefit.
    The commenter's analogy relating the time needed for the presiding 
officer's decision to the time needed for the initial determination by 
the NRC staff's Office of Administration's is not apt. In order to make 
its decision, the Office of Administration must first collect 
information that originates from a variety of sources. This process 
takes time, and the speed of information collection depends upon the 
time taken by the providers of the information. As explained in the 
preceding paragraph, a presiding officer's review of an adverse 
trustworthiness and reliability determination would involve review only 
for an abuse of discretion and would not involve the presiding officer 
independently gathering information for that determination.
    Comment: An agreement state asserts that if the Commission were 
unwilling to entertain appeals of presiding-officer-reviewed access 
determinations on a timely basis, the proposed changes to part 2 would 
lead to a denial of parties' rights to a fair hearing and the 
assistance of counsel. The commenter asserts that lack of timely 
Commission review would give the NRC staff, as a party in an 
adjudicatory hearing, broad discretion to deprive an opposing party of 
both expert witnesses and legal counsel needed to present its case. 
According to the commenter, this situation would be a violation of 
Section 555 of the APA, 5 U.S.C. 555.
    Response: To the extent the comment reflects a concern about the 
availability of Commission review of access determinations arising in 
the pending high-level waste (HLW) Pre-License Application Presiding 
Officer proceeding or any subsequent adjudication regarding the 
expected application by the Department of Energy for a construction 
authorization for a HLW repository, the comment overlooks the appeal 
process available pursuant to 10 CFR part 2, subpart J. The current 
Sec.  2.1015(b) contemplates prompt appeals to the Commission of 
certain presiding officer orders; under the final SGI rule's revisions 
to Sec.  2.1010, such appealable orders would include rulings 
concerning whether SGI should be disclosed, as well as related rulings 
upon review of adverse determinations with respect to trustworthiness 
and reliability. In addition, the Commission has published a final rule 
\12\ that provides for interlocutory review of comparable SGI-related 
rulings in other adjudicatory proceedings. Moreover, the Commission 
already has general discretionary authority to review presiding officer 
actions on its own motion or in response to appropriate review requests 
under Sec.  2.341. In short, the available means of appellate review 
demonstrate the Commission's authority to ensure consistency and 
fairness in adjudicatory proceedings.
---------------------------------------------------------------------------

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

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

[[Page 63554]]

by the views of the staff in its capacity as a party to a proceeding. 
The staff's independent obligations with respect to trustworthiness and 
reliability determinations thus do not result in adjudicatory staff 
``discretion'' to prevent SGI access by other parties. Accordingly, the 
functional and appellate framework described above would protect 
against possible violations of section 555 of the APA regarding the 
rights of persons compelled or permitted to appear in person or by 
representative in agency proceedings.
    Comments concerning sanctions for violating SGI protective orders 
in adjudications.
    Comment: A commenter states that the provisions concerning civil 
penalties are appropriate for violations that involve the disclosure of 
SGI that by order is prohibited from being disclosed, but that 
violations of orders requiring disclosure of SGI should be subject only 
to the same penalties that would apply for violations of orders 
requiring disclosure of other types of information. The commenter 
believes that the regulation regarding the potential for civil 
penalties for violation of an order should be clearly limited to 
disclosure of SGI in violation of provisions of an order that are 
imposed for the purpose of preventing unauthorized disclosure of SGI. 
The commenter suggests revising proposed Sec. Sec.  2.336(f)(5), 
2.705(c)(6), 2.709(f)(5) and 2.1010(b)(6)(v) to state: ``In addition to 
any other sanction that may be imposed by the presiding officer for 
violation of an order issued pursuant to this paragraph, disclosure of 
Safeguards Information in violation of limitations on such disclosure 
in an order pertaining to the disclosure of Safeguards Information may 
be subje