Nuclear Commission Allows Access to Classified Information, Maybe

The Nuclear Regulatory Commission (NRC) published a final rule June 2, allowing individuals or organizations access to classified information on agency licensing activities if they can demonstrate a "need to know." The agency originally published an identical final rule Dec. 15, 2004, but withdrew it after negative comments. The rule amends NRC's regulations (10 CFR 25, 10 CFR 95) governing access to classified information and the procedures for getting the security clearance necessary to handle the information. The changes to the rule broaden who could potentially access classified information regarding licensing activities. Previously, the only people allowed access to such information included licensees (holders of radioactive materials license), certificate holders, and others regulated by NRC. The new rule allows anyone not within the above categories to apply for a security clearance if they "need to know" classified information in connection with licensing activities. Need to know, as defined by 10 CFR Part 25, means "a determination by an authorized holder of classified information that a prospective recipient requires access to a specific classified information to perform or assist in a lawful and authorized governmental function under the cognizance of the Commission." The impetus for the change was the upcoming license application that the Department of Energy will likely submit in order to operate a radioactive waste repository in Yucca Mountain, Nevada. Clearly, environmental and public interest groups would need to participate in these proceedings, and therefore the regulations needed to be altered to give them access. However, it is unclear if all interested parties will be able to get the access they need. It is not clear what the criteria are for determining the "need to know." NRC will also conduct background investigations on anyone applying to access them. Agency officials responsible for the information will then make any determination about the application. NRC published the original final rule Dec. 15, 2004 along with a proposed rule the same day. The agency stated that if any adverse comments were submitted in reaction, it would withdraw the final rule. Seven environmental and public interest groups submitted a letter objecting over the rule's language. They asserted that the rule did not make it clear enough that public interest and environmental organizations, or other parties, could take part in licensing proceedings. They also questioned how the NRC will apply the "need to know" criterion. In response to these comments, NRC withdrew the final rule Feb. 24. However, the agency did not take the comments into consideration for the new final rule. While it responded to the comments, it made no change, therefore the language still remains vague. NRC states that this rulemaking only concerns access to classified information, and does not address safeguards information (SGI) or other sensitive but unclassified (SBU) information. The agency published a proposed rule Feb. 11 expanding the amount of information it can hide from the public as SGI. OMB Watch submitted detailed comments challenging many of the changes. The June 2 final rule on classified documents is effective on July 5.
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