[Federal Register Volume 79, Number 80 (Friday, April 25, 2014)]
[Notices]
[Pages 23015-23016]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09442]


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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: Draft regulatory guide; request for comment.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a new 
draft regulatory guide (DG), DG-7005, ``Standard Format and Content of 
Transportation Security Plans for Classified Matter Shipments.'' This 
new guidance describes a method that NRC staff considers acceptable for 
use in the development of classified matter transportation security 
plans, which identify the correct measures to protect classified matter 
while in transport.

DATES: Submit comments by June 24, 2014. Comments received after this 
date will be considered if it is practical to do so, but the NRC is 
able to ensure consideration only for comments received on or before 
this date. Although a time limit is given, comments and suggestions in 
connection with items for inclusion in guides currently being developed 
or improvements in all published guides are encouraged at any time.

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 review and 
provide comments on the document, contact: Al Tardiff, telephone: 301-
287-3616 or email: Al.Tardiff@nrc.gov.
    For additional direction on accessing information and submitting 
comments, see ``Accessing Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Mekonen Bayssie, Office of Nuclear 
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone: 301-251-7489; email: Mekonen.bayssie@nrc.gov or 
Al Tardiff, Office of Nuclear Security and Incident Response, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-001, telephone: 
301-287-3616 or email: Al.Tardiff@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Accessing Information and Submitting Comments

A. Accessing Information

    Please refer to Docket ID NRC-2014-0081 when contacting the NRC 
about the availability of information regarding this document. Draft 
regulatory guide, DG-7005, 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 
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.
    Those who have a need to know or believe they have a need to know 
should contact Al Tardiff to obtain information about accessing these 
documents.

B. Submitting Comments

    Please coordinate with Al Tardiff (telephone: 301-287-3616 or 
email: Al.Tardiff@nrc.gov) regarding the drafting and transmission of 
comments in order to protect comments that contain OUO-SRI information. 
Please include Docket ID NRC-2014-0081 in

[[Page 23016]]

the subject line of your comment submission to ensure that the NRC 
reviews any comment submission appropriately.

II. Additional Information

    The NRC is issuing for comment a draft guide in the NRC's 
``Regulatory Guide'' series. This series was developed to describe such 
information as methods that are acceptable to the NRC staff for 
implementing specific parts of the NRC's regulations, techniques that 
the staff uses in evaluating specific problems or postulated accidents, 
and data that the staff needs in its review of applications for permits 
and licenses.
    The DG, entitled, ``Standard Format and Content of Transportation 
Security Plans for Classified Matter Shipments,'' is temporarily 
identified by its task number, DG-7005. Draft regulatory guide, DG-
7005, is a proposed new guide in the NRC's ``Regulatory Guide'' series. 
This is a new guide that contains the procedures and measures that the 
applicant or licensee can describe in a classified matter 
transportation security plan to comply with NRC requirements. The 
regulatory framework that the NRC has established for security plans 
for the transportation of classified matter is set forth in Sec.  
95.39(e) of Title 10 of the Code of Federal Regulations (10 CFR).

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.

IV. Backfitting and Issue Finality

    Draft regulatory guide, DG-7005, 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. However, 
if a licensee makes changes to or proposes to amend such plans, then 
the staff will use the guidance in DG-7005 to evaluate the 
acceptability of the change or proposed amendment, unless the licensee 
provides sufficient basis and information that the licensee- proposed 
alternative to DG-7005 complies with applicable NRC regulations.
    Issuance of the DG, if finalized, and NRC use of the DG 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 DG, if finalized 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 protection 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 accorded 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 
accorded 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 draft guidance in 
DG-7005, if finalized, 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 DG-7005, the issuance of the draft regulatory guide in 
final form would not constitute backfitting or a violation of issue 
finality provisions under 10 CFR part 52. If, in the future, the staff 
seeks to impose a position in the draft regulatory guide (if finalized) 
on holders of already issued holders of 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 
accorded 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 18th day of April, 2014.

    For the Nuclear Regulatory Commission.
Thomas H. Boyce,
Chief, Regulatory Guidance and Generic Issues Branch, Division of 
Engineering, Office of Nuclear Regulatory Research.
[FR Doc. 2014-09442 Filed 4-24-14; 8:45 am]
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