[Federal Register Volume 84, Number 29 (Tuesday, February 12, 2019)]
[Notices]
[Pages 3515-3517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02029]
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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: Final protective order templates.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) staff is
announcing the availability of final 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: The final templates are available on February 12, 2019.
ADDRESSES: Please refer to Docket ID NRC-2018-0190 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly-available information related to this document
using 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 Docket IDs in Regulations.gov to Krupskaya
Castellon; telephone: 301-287-9221; email: [email protected].
For other questions, contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section of this document.
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.
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. 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 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
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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 staff published a Federal
Register notice on September 4, 2018 (83 FR 44925) seeking comment on
two draft protective order templates, one for SUNSI and one for SGI.
The comment period closed on October 19, 2018. The NRC received one
comment submission (ADAMS Accession No. ML18298A267), which came from
Southern Nuclear Operating Company. The NRC staff responded to comments
and described any resulting changes to the templates in a document
available at ADAMS Accession Number ML19036A732. In addition to changes
made in response to comments, the NRC staff revised the templates as
follows:
Consistent with the signature requirements in 10 CFR
2.304(d), the NRC staff added spaces for the signer's address, phone
number, and email address to the non-disclosure declarations and
termination of possession declarations in both templates.
The NRC staff added a requirement for the petitioner to
preserve evidence of an infraction in cases where the petitioner has
reason to believe that SGI may have become lost or misplaced, or that
SGI has otherwise become available to unauthorized persons. This
requirement is in addition to the existing notification requirements in
the SGI template.
The NRC staff made editorial corrections and minor
clarifications to both templates.
Participants in ITAAC hearings may, but are not required to, rely
on the final protective order templates as the basis for proposed
protective orders.
II. Discussion
The NRC staff has developed two final protective order templates
for ITAAC hearings, one for SUNSI (ADAMS Accession No. ML19036A727) and
one for SGI (ADAMS Accession No. ML19036A718). Although the templates
were developed for use in ITAAC hearings, the vast majority of the
content is not specific to ITAAC proceedings. The final 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 final SGI template has two additional ITAAC-specific
provisions:
Consistent with the ITAAC Hearing Procedures, the final
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 final 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. Final 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 final 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 staff 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 final SUNSI template, the NRC staff considered
protective orders for proprietary and security-related information
issued after 2006. The NRC staff 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 staff 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 final template. By aligning the provisions
and terminology in the SUNSI template with the corresponding elements
of the CUI Rule, the NRC staff hopes to facilitate any future update of
the template to comply with the CUI Rule. The introductory discussion
in the 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. Final 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 staff
combined general provisions from the 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 staff considered the
CUI Rule when developing the SGI template,
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the 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 SGI because the
authorizing law and regulations for SGI provide specific handling
controls.
III. 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./
Document Federal Register citation
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Final Template for Protective Orders ML19036A727
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).
Final Template for Protective Orders ML19036A718
Governing the Disclosure and Use of
Safeguards Information (SGI) in Hearings
Related to Conformance with Inspections,
Tests, Analyses, and Acceptance Criteria
(ITAAC).
NRC Staff Responses to Public Comments on ML19036A732
Draft Protective Order Templates for ITAAC
Hearings.
Comment Submission from Southern Nuclear ML18298A267
Operating Company, submitted on October 19,
2018.
Protective Order Templates for Hearings on 83 FR 44925
Conformance with the Acceptance Criteria in
Combined Licenses, published on September 4,
2018 (draft for comment).
Final Procedures for Conducting Hearings on 81 FR 43266
Conformance With the Acceptance Criteria in
Combined Licenses, published on July 1, 2016.
SECY-15-0010, Final Procedures for Hearings ML14343A747
on Conformance With the Acceptance Criteria
in Combined Licenses, dated January 20, 2015.
Final Rule: Controlled Unclassified 81 FR 63324
Information, published on September 14, 2016.
NRC Regulatory Issue Summary 2005-26, Control ML051430228
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 7th day of February 2019.
For the Nuclear Regulatory Commission.
Susan H. Vrahoretis,
Assistant General, Counsel for New Reactor Programs, Office of the
General Counsel.
[FR Doc. 2019-02029 Filed 2-11-19; 8:45 am]
BILLING CODE 7590-01-P