[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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

[[Page 3516]]

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,

[[Page 3517]]

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.

------------------------------------------------------------------------
                                                  ADAMS Accession No./
                   Document                    Federal Register citation
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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