
[Code of Federal Regulations]
[Title 10, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR2]

[Page 88-92]
 
                            TITLE 10--ENERGY
 
                CHAPTER I--NUCLEAR REGULATORY COMMISSION
 
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF OR
DERS--Table of Contents
 
Subpart I--Special Procedures Applicable to Adjudicatory Proceedings Involving 
Restricted Data and/or National Security Information

    Source: 41 FR 53329, Dec. 6, 1976, unless otherwise noted.

Sec. 2.900  Purpose.

    This subpart is issued pursuant to section 181 of the Atomic Energy 
Act of 1954, as amended, and section 201 of the Energy Reorganization 
Act of 1974, as amended, to provide such procedures in proceedings 
subject to this part as will effectively safeguard and prevent 
disclosure of Restricted Data and National Security Information to 
unauthorized persons, with minimum impairment of procedural rights.

Sec. 2.901  Scope.

    This subpart applies to all proceedings subject to subpart G.

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Sec. 2.902  Definitions.

    As used in this subpart:
    (a) Government agency means any executive department, commission, 
independent establishment, corporation, wholly or partly owned by the 
United States of America, which is an instrumentality of the United 
States, or any board, bureau, division, service, office, officer, 
authority, administration, or other establishment in the executive 
branch of the Government.
    (b) Interested party means a party having an interest in the issue 
or issues to which particular Restricted Data or National Security 
Information is relevant. Normally the interest of a party in an issue 
may be determined by examination of the notice of hearing, the answers 
and replies.
    (c) The phrase introduced into a proceeding refers to the 
introduction or incorporation of testimony or documentary matter into 
any part of the official record of a proceeding subject to this part.
    (d) National Security Information means information that has been 
classified pursuant to Executive Order 12356.
    (e) Party, in the case of proceedings subject to this subpart 
includes a person admitted as a party pursuant to Sec. 2.714 or an 
interested State admitted pursuant to Sec. 2.715(c).

[41 FR 53329, Dec. 6, 1976, as amended at 47 FR 56314, Dec. 16, 1982]

Sec. 2.903  Protection of restricted data and national security 
          information.

    Nothing in this subpart shall relieve any person from safeguarding 
Restricted Data or National Security Information in accordance with the 
applicable provisions of laws of the United States and rules, 
regulations or orders of any Government Agency.

Sec. 2.904  Classification assistance.

    On request of any party to a proceeding or of the presiding officer, 
the Commission will designate a representative to advise and assist the 
presiding officer and the parties with respect to security 
classification of information and the safeguards to be observed.

Sec. 2.905  Access to restricted data and national security information 
          for parties; security clearances.

    (a) Access to restricted data and national security information 
introduced into proceedings. Except as provided in paragraph (h) of this 
section, restricted data or national security information introduced 
into a proceeding subject to this part will be made available to any 
interested party having the required security clearance; to counsel for 
an interested party provided the counsel has the required security 
clearance; and to such additional persons having the required security 
clearance as the Commission or the presiding officer determined are 
needed by such party for adequate preparation or presentation of his 
case. Where the interest of such party will not be prejudiced, the 
Commission or presiding officer may postpone action upon an application 
for access under this paragraph until after a notice of hearing, 
answers, and replies have been filed.
    (b) Access to Restricted Data or National Security Information not 
introduced into proceedings.
    (1) On application showing that access to Restricted Data or 
National Security Information may be required for the preparation of a 
party's case, and except as provided in paragraph (h) of this section, 
the Commission or the presiding officer will issue an order granting 
access to such Restricted Data or National Security Information to the 
party upon his obtaining the required security clearance, to counsel for 
the party upon their obtaining the required security clearance, and to 
such other individuals as may be needed by the party for the preparation 
and presentation of his case upon their obtaining the required 
clearance.
    (2) Where the interest of the party applying for access will not be 
prejudiced, the Commission or the presiding officer may postpone action 
on an application pursuant to this paragraph until after a notice of 
hearing, answers and replies have been filed.
    (c) The Commission will consider requests for appropriate security 
clearances in reasonable numbers pursuant to this section. A reasonable 
charge will be made by the Commission for

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costs of security clearance pursuant to this section.
    (d) The presiding officer may certify to the Commission for its 
consideration and determination any questions relating to access to 
Restricted Data or National Security Information arising under this 
section. Any party affected by a determination or order of the presiding 
officer under this section may appeal forthwith to the Commission from 
the determination or order. The filing by the staff of an appeal from an 
order of a presiding officer granting access to Restricted Data or 
National Security Information shall stay the order pending determination 
of the appeal by the Commission.
    (e) Application granting access to restricted data or national 
security information.
    (1) An application under this section for orders granting access to 
restricted data or national security information not received from 
another Government agency will normally be acted upon by the presiding 
officer, or if a proceeding is not before a presiding officer, by the 
Commission.
    (2) An application under this section for orders granting access to 
restricted data or national security information where the information 
has been received by the Commission from another Government agency will 
be acted upon by the Commission.
    (f) To the extent practicable, an application for an order granting 
access under this section shall describe the subjects of Restricted Data 
or National Security Information to which access is desired and the 
level of classification (confidential, secret or other) of the 
information; the reasons why access to the information is requested; the 
names of individuals for whom clearances are requested; and the reasons 
why security clearances are being requested for those individuals.
    (g) On the conclusion of a proceeding, the Commission will terminate 
all orders issued in the proceeding for access to Restricted Data or 
National Security Information and all security clearances granted 
pursuant to them; and may issue such orders requiring the disposal of 
classified matter received pursuant to them or requiring the observance 
of other procedures to safeguard such classified matter as it deems 
necessary to protect Restricted Data or National Security Information.
    (h) Refusal to grant access to restricted data or national security 
information.
    (1) The Commission will not grant access to restricted data or 
national security information unless it determines that the granting of 
access will not be inimical to the common defense and security.
    (2) Access to Restricted Data or National Security Information which 
has been received by the Commission from another Government agency will 
not be granted by the Commission if the originating agency determines in 
writing that access should not be granted. The Commission will consult 
the originating agency prior to granting access to such data or 
information received from another Government agency.

Sec. 2.906  Obligation of parties to avoid introduction of restricted 
          data or national security information.

    It is the obligation of all parties in a proceeding subject to this 
part to avoid, where practicable, the introduction of Restricted Data or 
National Security Information into the proceeding. This obligation rests 
on each party whether or not all other parties have the required 
security clearance.participants, and the LSS Administration.

Sec. 2.907  Notice of intent to introduce restricted data or national 
          security information.

    (a) If, at the time of publication of a notice of hearing, it 
appears to the staff that it will be impracticable for it to avoid the 
introduction of Restricted Data or National Security Information into 
the proceeding, it will file a notice of intent to introduce Restricted 
Data or National Security Information.
    (b) If, at the time of filing of an answer to the notice of hearing 
it appears to the party filing that it will be impracticable for the 
party to avoid the introduction of Restricted Data or National Security 
Information into the proceeding, the party shall state in the answer a 
notice of intent to introduce Restricted Data or National Security 
Information into the proceeding.

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    (c) If, at any later stage of a proceeding, it appears to any party 
that it will be impracticable to avoid the introduction of Restricted 
Data or National Security Information into the proceeding, the party 
shall give to the other parties prompt written notice of intent to 
introduce Restricted Data or National Security Information into the 
proceeding.
    (d) Restricted Data or National Security Information shall not be 
introduced into a proceeding after publication of a notice of hearing 
unless a notice of intent has been filed in accordance with Sec. 2.908, 
except as permitted in the discretion of the presiding officer when it 
is clear that no party or the public interest will be prejudiced.

Sec. 2.908  Contents of notice of intent to introduce restricted data or 
          other national security information.

    (a) A party who intends to introduce Restricted Data or other 
National Security Information shall file a notice of intent with the 
Secretary. The notice shall be unclassified and, to the extent 
consistent with classification requirements, shall include the 
following:
    (1) The subject matter of the Restricted Data or other National 
Security Information which it is anticipated will be involved;
    (2) The highest level of classification of the information 
(confidential, secret, or other);
    (3) The stage of the proceeding at which he anticipates a need to 
introduce the information; and
    (4) The relevance and materiality of the information to the issues 
on the proceeding.
    (b) In the discretion of the presiding officer, such notice, when 
required by Sec. 2.907(c), may be given orally on the record.

Sec. 2.909  Rearrangement or suspension of proceedings.

    In any proceeding subject to this part where a party gives a notice 
of intent to introduce Restricted Data or other National Security 
Information, and the presiding officer determines that any other 
interested party does not have required security clearances, the 
presiding officer may in his discretion:
    (a) Rearrange the normal order of the proceeding in a manner which 
gives such interested parties an opportunity to obtain required security 
clearances with minimum delay in the conduct of the proceeding.
    (b) Suspend the proceeding or any portion of it until all interested 
parties have had opportunity to obtain required security clearances. No 
proceeding shall be suspended for such reasons for more than 100 days 
except with the consent of all parties or on a determination by the 
presiding officer that further suspension of the proceeding would not be 
contrary to the public interest.
    (c) Take such other action as he determines to be in the best 
interest of all parties and the public.

Sec. 2.910  Unclassified statements required.

    (a) Whenever Restricted Data or other National Security Information 
is introduced into a proceeding, the party offering it shall submit to 
the presiding officer and to all parties to the proceeding an 
unclassified statement setting forth the information in the classified 
matter as accurately and completely as possible.
    (b) In accordance with such procedures as may be agreed upon by the 
parties or prescribed by the presiding officer, and after notice to all 
parties and opportunity to be heard thereon, the presiding officer shall 
determine whether the unclassified statement or any portion of it, 
together with any appropriate modifications suggested by any party, may 
be substituted for the classified matter or any portion of it without 
prejudice to the interest of any party or to the public interest.
    (c) If the presiding officer determines that the unclassified 
statement, together with such unclassified modifications as he finds are 
necessary or appropriate to protect the interest of other parties and 
the public interest, adequately sets forth information in the classified 
matter which is relevant and material to the issues in the proceeding, 
he shall direct that the classified matter be excluded from the record 
of the proceeding. His determination will be considered by the

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Commission as a part of the decision in the event of review.
    (d) If the presiding officer determines that an unclassified 
statement does not adequately present the information contained in the 
classified matter which is relevant and material to the issues in the 
proceeding, he shall include his reasons in his determination. This 
determination shall be included as part of the record and will be 
considered by the Commission in the event of review of the 
determination.
    (e) The presiding officer may postpone all or part of the procedures 
established in this section until the reception of all other evidence 
has been completed. Service of the unclassified statement required in 
paragraph (a) of this section shall not be postponed if any party does 
not have access to Restricted Data or other National Security 
Information.

Sec. 2.911  Admissibility of restricted data or other national security 
          information.

    A presiding officer shall not receive any Restricted Data or other 
National Security Information in evidence unless:
    (a) The relevance and materiality of the Restricted Data or other 
National Security Information to the issues in the preceeding, and its 
competence, are clearly established; and
    (b) The exclusion of the Restricted Data or other National Security 
Information would prejudice the interests of a party or the public 
interest.

Sec. 2.912  Weight to be attached to classified evidence.

    In considering the weight and effect of any Restricted Data or other 
National Security Information received in evidence to which an 
interested party has not had opportunity to receive access, the 
presiding officer and the Commission shall give to such evidence such 
weight as is appropriate under the circumstances, taking into 
consideration any lack of opportunity to rebut or impeach the evidence.

Sec. 2.913  Review of Restricted Data or other National Security 
          Information received in evidence.

    At the close of the reception of evidence, the presiding officer 
shall review the record and shall direct that any Restricted Data or 
other National Security Information be expunged from the record where 
such expunction would not prejudice the interests of a party or the 
public interest. Such directions by the presiding officer will be 
considered by the Commission in the event of review of the 
determinations of the presiding officer.
