[Federal Register Volume 80, Number 110 (Tuesday, June 9, 2015)]
[Notices]
[Pages 32622-32623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14018]


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NUCLEAR REGULATORY COMMISSION

[NRC-2014-0081]


Standard Format and Content of Transportation Security Plans for 
Classified Matter Shipments

AGENCY: Nuclear Regulatory Commission.

ACTION: Regulatory guide; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a new 
Regulatory Guide (RG) 7.13, ``Standard Format and Content of 
Transportation Security Plans for Classified Matter Shipments.'' The 
guide describes a method that NRC staff considers acceptable for 
compliance with the agency's regulations with regard to the development 
of classified matter transportation security plans, which identify the 
correct measures to protect classified matter while in transport.

ADDRESSES: The document will be available for those who have 
established a ``need-to-know'' and possess access permission to 
Official Use Only--Security Related Information (OUO-SRI). To obtain 
the document, contact: Al Tardiff, Office of Nuclear Security and 
Incident Response, telephone: 301-287-3616 or email: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Al Tardiff, Office of Nuclear Security 
and Incident Response, telephone: 301-287-3616, email: 
[email protected], or Mekonen Bayssie, Office of Nuclear Regulatory 
Research, telephone: 301-251-7489, email: [email protected]. U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The NRC is issuing a new guide in the NRC's ``Regulatory Guide'' 
series. This series was developed to describe and make available to the 
public information regarding methods that are acceptable to the NRC 
staff for implementing specific

[[Page 32623]]

parts of the agency's regulations, techniques that the staff uses in 
evaluating specific issues or postulated events, and data that the 
staff needs in its review of applications for permits and licenses.
    Regulatory guide RG 7.13 is withheld from public disclosure but is 
available to those affected licensees and cleared stakeholders who can 
or have demonstrated a need to know. The ``Backfitting and Issue 
Finality'' section describes previously issued guidance on this 
subject, which is entitled, Interim Staff Guidance (ISG) DSP-ISG-01, 
Staff Review Procedure for Transportation Security Plans for Classified 
Matter Shipments (July 7, 2006). This document also contains OUO-SRI 
information.

II. Additional Information

    DG-7005, was published in the Federal Register on April 25, 2014 
(79 FR 23015) for a 60-day stakeholders' comment period. The 
stakeholders' comment period closed on June 24, 2014. Stakeholders' 
comments on DG-7005 and the staff responses to the stakeholders' 
comments can be obtained the individuals listed in the FOR FURTHER 
INFORMATION section of this document.

 III. Congressional Review Act

    This regulatory guide is a rule as defined in the Congressional 
Review Act (5 U.S.C. 801-808). However, the Office of Management and 
Budget has not found it to be a major rule as defined in the 
Congressional Review Act.

III. Backfitting and Issue Finality

    Issuance of this final regulatory guide does not constitute 
backfitting as defined in 10 CFR 50.109 (the Backfit Rule) and is not 
otherwise inconsistent with the issue finality provisions in 10 CFR 
part 52. This RG provides guidance on development of transportation 
security plans to protect classified information while such information 
is in transport, in order to meet the requirements of 10 CFR part 95. 
The staff has previously issued guidance on this subject in DSP-ISG-01, 
Staff Review Procedure for Transportation Security Plans for Classified 
Matter Shipments (July 7, 2006). The staff will use the guidance in the 
review and approval of new and amended transportation security plans 
submitted to the NRC. Current licensees with NRC-approved 
transportation security plans may continue to use DSP-ISG-01, which the 
NRC has found acceptable for complying with 10 CFR part 95 regulations 
as long as the licensees do not change their NRC-approved 
transportation security plans.
    This regulatory guide does not constitute backfitting as described 
above, would not constitute backfitting under any of the backfitting 
provisions in 10 CFR Chapter I, nor would it be regarded as backfitting 
under Commission and Executive Director for Operations guidance. In 
addition, issuance of the RG would not otherwise be inconsistent with 
the issue finality provisions in 10 CFR part 52. The staff's position 
is based upon the following considerations.
    1. Part 95 applies to materials licensees and other entities 
transporting (or placing into transport) classified security 
information, and contains requirements governing such transport. 
Although some of these materials licensees are protected by backfitting 
or issue finality provisions in 10 CFR part 52, these backfitting and 
issue finality protections do not extend to the procedures governing 
transport of classified information. For example, under the definition 
of backfitting in 10 CFR 50.109(a)(1), protection is afforded to 
nuclear power plant licensees against changes in, or new requirements 
and guidance on, inter alia, ``procedures or organization required to . 
. . operate a facility.'' Procedures governing the transportation of 
materials off of the facility site cannot reasonably be viewed as 
constituting such facility operating procedures. The backfitting and 
issue finality provisions applicable to other materials licensees are 
written in an analogous fashion. Therefore, changes to the guidance on 
compliance with 10 CFR part 95--even if imposed on these materials 
licensees who are protected by backfitting or issue protection 
provisions in 10 CFR part 52 (see the discussion in item 2)--would not 
constitute backfitting or a violation of issue finality provisions 
under 10 CFR part 52.
    2. Even if the NRC were to conclude that materials licensees are 
afforded backfitting protection with respect to procedures governing 
transportation of classified information, changes in guidance would not 
constitute backfitting as defined in the various NRC backfitting 
provisions unless imposed on materials licensees. As described earlier, 
the NRC staff does not intend to impose or apply the guidance in this 
RG to existing licensees who already have NRC-approved transportation 
security plans (the exception is where a licensee makes changes to or 
proposes to amend such plans; the backfitting and issue finality 
implications are discussed in item 3 below). Given this current lack of 
staff intention to impose the guidance in this RG, this would not 
constitute backfitting or a violation of issue finality provisions 
under 10 CFR part 52. If the staff seeks to impose a position in the RG 
7.13 on holders of already issued licenses in a manner which 
constitutes backfitting or does not provide issue finality as described 
in the applicable issue finality provision then the staff must make the 
showing as set forth in the applicable backfitting provision or address 
the criteria for avoiding issue finality as described applicable issue 
finality provision.
    3. A licensing basis change voluntarily initiated by a licensee is 
not considered to be backfitting. In such cases, the policy 
considerations underlying the NRC's backfitting provisions, viz. 
regulatory stability and predictability concerning the terms of an NRC 
approval, are not applicable where the licensee itself voluntarily 
seeks a change to its licensing basis. This rationale is reflected in a 
July 14, 2010, letter from the NRC General Counsel to NEI's General 
Counsel (ADAMS Accession No. ML101960180)
    4. Even if the NRC were to conclude that materials licensees are 
afforded backfitting protection with respect to procedures governing 
transportation of classified information, applicants and potential/
future applicants for such materials licenses are not, with certain 
exceptions not relevant here, protected under either the various NRC 
backfitting provisions or the issue finality provisions under 10 CFR 
part 52. This is because neither the backfitting provisions nor the 
issue finality provisions under 10 CFR part 52 were intended for every 
NRC action which substantially changes the expectations of current and 
future applicants.

    Dated at Rockville, Maryland, this 3rd day of June, 2015.

    For the Nuclear Regulatory Commission.
Harriet Karagiannis,
Acting Chief, Regulatory Guidance and Generic Issues Branch, Division 
of Engineering, Office of Nuclear Regulatory Research.
[FR Doc. 2015-14018 Filed 6-8-15; 8:45 am]
 BILLING CODE 7590-01-P