[Federal Register Volume 83, Number 171 (Tuesday, September 4, 2018)]
[Notices]
[Pages 44925-44927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19023]


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NUCLEAR REGULATORY COMMISSION

[NRC-2018-0190]


Protective Order Templates for Hearings on Conformance With the 
Acceptance Criteria in Combined Licenses

AGENCY: Nuclear Regulatory Commission.

ACTION: Draft protective order templates; request for comment.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is seeking public 
comment on draft protective order templates to be used in hearings 
associated with closure of inspections, tests, analyses, and acceptance 
criteria (ITAAC). The templates have the purpose of facilitating quick 
development of case-specific protective orders to support the 
accelerated ITAAC hearing schedule. Participants in ITAAC hearings may, 
but are not required to, use the templates as the basis for proposed 
protective orders.

DATES: Submit comments by October 19, 2018. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission is able to ensure consideration only for comments received 
before this date.

ADDRESSES: You may submit comments by any of the following methods:
     Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2018-0190. Address 
questions about NRC dockets to Jennifer Borges; telephone: 301-287-
9127; email: [email protected]. For other questions, contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michael A. Spencer, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission; telephone: 301-
287-9115, email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2018-0190 when contacting the NRC 
about the availability of information for this action. You may obtain 
publicly-available information related to this action by any of the 
following methods:
     Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2018-0190.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to [email protected]. For the convenience of the reader, 
instructions about obtaining materials referenced in this document are 
provided in the ``Availability of Documents'' section.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2018-0190 in your comment submission. 
If you cannot submit your comments on the Federal Rulemaking website, 
http://www.regulations.gov, please contact the individual listed in the 
FOR FURTHER INFORMATION CONTACT section of this document.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into 
ADAMS. The NRC does not routinely edit comment submissions to remove 
identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Background

    On July 1, 2016 (81 FR 43266), the NRC published final procedures 
for hearings on conformance with the acceptance criteria in combined 
licenses (COLs) issued under part 52 of title 10 of the Code of Federal 
Regulations (10 CFR) (ITAAC Hearing Procedures). The acceptance 
criteria are part of the ITAAC included in the COL. In accordance with 
10 CFR 52.103(g), the NRC must find that the acceptance criteria are 
met before facility operation may begin. Section 189a.(1)(B) of the 
Atomic Energy Act of 1954, as amended (AEA), provides members of the 
public an opportunity to request a hearing on the facility's compliance 
with the acceptance criteria. The ITAAC Hearing Procedures describe the 
requirements for such hearing requests and the procedures to be used 
throughout the hearing process. The procedures for a particular ITAAC 
proceeding will be imposed by case-specific orders, and the ITAAC 
Hearing Procedures reference templates to be used for such orders.
    Some NRC proceedings involve sensitive information. For ITAAC 
proceedings in particular, the NRC

[[Page 44926]]

determined that a potential party may deem it necessary to obtain 
access to Sensitive Unclassified Non-Safeguards Information (SUNSI) or 
Safeguards Information (SGI) for the purpose of meeting Commission 
requirements for intervention. Therefore, the ITAAC Hearing Procedures 
include templates for orders governing requests for access to SUNSI and 
SGI. If a hearing participant qualifies for access to sensitive 
information, then a protective order and non-disclosure declaration 
would be needed to ensure that the information is protected 
appropriately. The presiding officer for a proceeding would issue the 
protective order, and recipients of the sensitive information would 
sign a non-disclosure declaration agreeing to protect the information 
in accordance with the protective order. Typically, the presiding 
officer issues a protective order in response to a motion from the 
hearing participants proposing a draft protective order and non-
disclosure declaration for the presiding officer's consideration.
    The NRC received comments on the proposed ITAAC Hearing Procedures 
suggesting that model templates would facilitate quick development of 
protective orders. In response, the NRC stated that protective order 
templates would be developed in a separate process allowing for 
stakeholder input.
    To fulfill this commitment, the NRC has developed and is seeking 
comment on two draft protective order templates, one for SUNSI (ADAMS 
Accession No. ML18239A329) and one for SGI (ADAMS Accession No. 
ML18239A322). The NRC staff will make a final determination regarding 
issuance of the templates after consideration of any public comments 
received in response to this request. The final templates will be 
referenced in a future Federal Register notice. Participants in ITAAC 
hearings may, but are not required to, rely on the final protective 
order templates as the basis for proposed protective orders.

III. Discussion

    The NRC has developed two draft protective order templates for 
ITAAC hearings, one for SUNSI and one for SGI. Although the draft 
templates were developed for use in ITAAC hearings, the vast majority 
of the content is not specific to ITAAC proceedings. The draft SUNSI 
and SGI templates have the following ITAAC-specific provisions:
     The templates reflect the possibility that the presiding 
officer might be a single legal judge assisted as appropriate by 
technical advisors.
     Consistent with the accelerated ITAAC hearing schedule, 
petitioners are given less time to execute non-disclosure declarations, 
and licensees and the NRC staff are given less time to provide SUNSI or 
SGI to the petitioners, than is ordinarily the case.
    The draft SGI template also has two additional ITAAC-specific 
provisions:
     Consistent with the ITAAC Hearing Procedures, the draft 
template provides that SGI must be filed by overnight mail. Filings 
with SGI will not be made on the E-Filing system because the E-Filing 
system does not comply with SGI security requirements. This provision 
does not appear in the SUNSI template because SUNSI filings will be 
made through the E-Filing system.
     The draft template quotes the ITAAC Hearing Procedures as 
stating that the NRC will not delay its actions in completing the 
hearing or making the 10 CFR 52.103(g) finding because of delays from 
background checks for persons seeking access to SGI.
    Both templates are based on current requirements and policies, and 
would, if appropriate, be updated as those requirements and policies 
change. For example, NRC policies will change in response to the 
National Archives and Records Administration's final rule, ``Controlled 
Unclassified Information,'' (81 FR 63324; September 14, 2016) (CUI 
Rule). The CUI Rule establishes government-wide requirements for 
protecting sensitive unclassified information. The CUI Rule applies 
both to the Federal government and to non-Federal entities receiving 
CUI from the Federal government. The NRC has not yet implemented the 
CUI Rule and does not expect to achieve implementation before the ITAAC 
hearings for Vogtle Units 3 and 4. But any future updating of the 
templates for subsequent ITAAC proceedings would reflect consideration 
of the CUI Rule and associated guidance.

A. Draft SUNSI Protective Order Template

    The NRC uses the term SUNSI to refer to a broad spectrum of 
sensitive information that is neither classified nor SGI. While there 
are many types of SUNSI, the draft SUNSI protective order template is 
directed at protection of proprietary and security-related information, 
as discussed in SECY-15-0010 (January 20, 2015) (ADAMS Accession No. 
ML14343A747). The NRC focused on these types of SUNSI because of the 
NRC's experience with hearings involving reactors and its knowledge of 
the matters subject to ITAAC. If an ITAAC hearing involves another type 
of SUNSI with different protection requirements, the template can be 
adjusted accordingly.
    In developing the draft SUNSI template, the NRC considered 
protective orders for proprietary and security-related information 
issued after 2006. The NRC also considered guidance in NRC Regulatory 
Issue Summary (RIS) 2005-26, ``Control of Sensitive Unclassified Non-
Safeguards Information Related to Nuclear Power Reactors'' (ADAMS 
Accession No. ML051430228), dated November 7, 2005. RIS 2005-26 is 
specifically directed at protection of security-related information for 
reactors and states that such information is protected in much the same 
way as commercial or financial information.
    Finally, the NRC considered the CUI Rule. Although the CUI Rule has 
not yet been implemented at the NRC, many CUI requirements are 
consistent with the existing protective provisions for SUNSI that 
provided the basis for the draft template. By aligning the provisions 
and terminology in the draft SUNSI template with the corresponding 
elements of the CUI Rule, the NRC hopes to facilitate any future update 
of the template to comply with the CUI Rule. The introductory 
discussion in the draft template identifies those CUI provisions that 
were excluded because they differ from, or go beyond, existing 
protective provisions for proprietary and security-related SUNSI for 
external stakeholders.

B. Draft SGI Protective Order Template

    Safeguards Information is a special category of sensitive 
unclassified information defined in 10 CFR 73.2 and protected from 
unauthorized disclosure under AEA Section 147. Although SGI is 
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). 
Requirements for access to SGI and requirements for SGI handling, 
storage, and processing are in 10 CFR part 73.
    The SGI protective order template does not rely on prior SGI 
protective orders because they predate significant changes to the NRC's 
regulations on SGI and adjudicatory filings. Instead, the NRC combined 
general provisions from the draft SUNSI template with the SGI 
protection requirements in 10 CFR part 73 and the adjudicatory filing 
requirements in 10 CFR part 2. Also, while the NRC considered the CUI 
Rule when developing the draft SGI template, the draft template does 
not reflect any specific CUI provisions. The NRC has not yet 
implemented the CUI Rule, and in accordance with 32 CFR 2002.4(r), most 
CUI requirements do not apply to

[[Page 44927]]

SGI because the authorizing law and regulations for SGI provide 
specific handling controls.

IV. Availability of Documents

    The documents identified in the following table are available to 
interested persons through one or more of the following methods, as 
indicated.

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                                             ADAMS accession No./Federal
                 Document                         Register citation
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Draft Template for Protective Orders        ML18239A329.
 Governing the Disclosure and Use of
 Sensitive Unclassified Non-Safeguards
 Information (SUNSI) in Hearings Related
 to Conformance with Inspections, Tests,
 Analyses, and Acceptance Criteria (ITAAC).
Draft Template for Protective Orders        ML18239A322.
 Governing the Disclosure and Use of
 Safeguards Information (SGI) in Hearings
 Related to Conformance with Inspections,
 Tests, Analyses, and Acceptance Criteria
 (ITAAC).
Final Procedures for Conducting Hearings    81 FR 43266.
 on Conformance With the Acceptance
 Criteria in Combined Licenses, dated July
 1, 2016.
SECY-15-0010, Final Procedures for          ML14343A747.
 Hearings on Conformance With the
 Acceptance Criteria in Combined Licenses,
 dated January 20, 2015.
Final Rule: Controlled Unclassified         81 FR 63324.
 Information, dated September 14, 2016.
NRC Regulatory Issue Summary 2005-26,       ML051430228.
 Control of Sensitive Unclassified Non-
 Safeguards Information Related to Nuclear
 Power Reactors, dated November 7, 2005.
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    The NRC may post materials related to this document, including 
public comments, on the Federal rulemaking website at http://www.regulations.gov under Docket ID NRC-2018-0190. The Federal 
Rulemaking website allows you to receive alerts when changes or 
additions occur in a docket folder. To subscribe: (1) Navigate to the 
docket folder (NRC-2018-0190); (2) click the ``Sign up for Email 
Alerts'' link; and (3) enter your email address and select how 
frequently you would like to receive emails (daily, weekly, or 
monthly).

    Dated at Rockville, Maryland, this 28th day of August 2018.

    For the Nuclear Regulatory Commission.
Susan H. Vrahoretis,
Assistant General Counsel for New Reactor Programs, Office of the 
General Counsel.
[FR Doc. 2018-19023 Filed 8-31-18; 8:45 am]
 BILLING CODE 7590-01-P