[Federal Register Volume 73, Number 47 (Monday, March 10, 2008)]
[Rules and Regulations]
[Pages 12627-12631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4768]
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Rules and Regulations
Federal Register
________________________________________________________________________
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Federal Register / Vol. 73, No. 47 / Monday, March 10, 2008 / Rules
and Regulations
[[Page 12627]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 2
RIN 3150-AI08
Interlocutory Review of Rulings on Requests by Potential Parties
for Access to Sensitive Unclassified Non-Safeguards Information and
Safeguards Information
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is
amending its regulations to provide for expedited (and, in this case,
``interlocutory'') review by the Commission of orders on requests by
potential parties for access to certain sensitive unclassified non-
safeguards information (SUNSI) and Safeguards Information (SGI).
DATES: The effective date is April 9, 2008.
ADDRESSES: Publicly available documents created or received at the NRC
after November 1, 1999, are available electronically on the NRC's Web
site in the Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into the NRC's
Agencywide Documents Access and Management System (ADAMS), which
provides text and image files of NRC's public documents. If you do not
have access to ADAMS or if there are problems in accessing the
documents located in ADAMS, contact the PDR Reference staff at 1-800-
397-4209, 301-415-4737 or by e-mail at [email protected]. Publicly available
documents related to this rulemaking, including comments, may be viewed
electronically on the public computers located at the NRC's Public
Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville
Pike, Rockville, Maryland. The PDR reproduction contractor will copy
documents for a fee.
FOR FURTHER INFORMATION CONTACT: Tison Campbell, Attorney, Office of
the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-8579, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
III. Analysis of Public Comments on the Proposed Rule
IV. Voluntary Consensus Standards
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Certification
IX. Backfit Analysis
X. Congressional Review Act
I. Background
Commission regulations in 10 CFR part 2, ``Rules of Practice for
Domestic Licensing Proceedings and Issuance of Orders'' govern the
conduct of NRC adjudicatory proceedings. Potential parties who may
request a hearing or petition to intervene in a hearing under 10 CFR
part 2 may deem it necessary to obtain access to sensitive unclassified
non-safeguards information (SUNSI) (including, but not limited to,
proprietary, confidential commercial, and security-related information)
and to Safeguards Information (SGI) as defined in 10 CFR 73.2 to meet
Commission requirements for hearing requests or for intervention.
In order to facilitate access to the information described above,
the Commission has developed, and made available for public comment,\1\
draft access procedures to address receipt of this information by
potential parties. In addition, the Commission is completing a final
rule to update its regulations governing access to and protection of
SGI.\2\ Development of the procedures for access by potential parties
and of the SGI rule is separate from, and not a part of, this amendment
to 10 CFR 2.311. The revisions to 10 CFR 2.311 provide for
interlocutory review by the Commission of access determinations made
under those procedures, but Sec. 2.311 does not control how the
initial access determinations are made. However, a brief discussion of
the purpose of those procedures is necessary to explain the
Commission's intent in revising Sec. 2.311.
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\1\ See ``Interlocutory Review of Rulings on Requests by
Potential Parties for Access to Sensitive Unclassified Non-
Safeguards Information and Safeguards Information; Reopening of
Public Comment Period and Notice of Availability of Proposed
Procedures for Comment'' (72 FR 43569; August 6, 2007). The draft
access procedures document, ``Availability for Comment of Proposed
Procedures to Allow Potential Intervenors to Gain Access to Relevant
Records That Contain Sensitive Unclassified Non-Safeguards
Information or Safeguards Information,'' is available in ADAMS at
ML071910149.
\2\ See, ``Protection of Safeguards Information,'' (71 FR 64004;
Oct. 31, 2006). The comment period on that proposed rule expired
January 2, 2007, and a final rule is under development.
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Under the draft procedures for information access, a Federal
Register notice of hearing, or a notice of opportunity for hearing on a
licensing or other regulatory action, would instruct persons who claim
a need for access to SUNSI or SGI in order to prepare a hearing request
or intervention petition to submit a request by letter to specified
Commission offices, within a specified time period from the issuance of
the notice. The letter request for either SUNSI or SGI would have to
contain certain elements, such as a description of the NRC licensing or
enforcement action at issue (with citations to the relevant FRN); a
description of the potential party's particular interest that could be
harmed by the potential NRC action; and the identity of the individual
requesting access to the information and that individual's need for the
information in order to meaningfully participate in the adjudicatory
proceeding. Access to SGI under the draft access procedures also would
require: (1) A showing of the technical competence of the requester to
understand and use the requested information to provide the basis and
specificity for a proffered contention and (2) completion of a
background check (including fingerprinting as part of a criminal
history records check, as well as a credit check release) to establish
trustworthiness and reliability. Because these background checks may
take up to several months to complete, the draft access procedures
include a ``pre-clearance'' process by which potential parties who may
seek access to SGI could request initiation of the background check
prior to a notice of hearing and thereby minimize delays in
[[Page 12628]]
the preparation (and, if appropriate, adjudication) of security-related
contentions.
Based on an evaluation of the information submitted, the NRC staff
would determine whether (1) there is a reasonable basis to believe that
a potential party is likely to establish standing to intervene or to
otherwise participate as a party in an adjudicatory proceeding and (2)
the proposed recipient of the information has demonstrated a need for
access to SUNSI, a need for access to SGI, a ``need to know,'' and that
the proposed recipient is trustworthy and reliable. If the request for
access to SUNSI or SGI is granted, the terms and conditions for this
access would be set forth in a draft protective order and affidavit of
non-disclosure. If the request for access to SUNSI or SGI is denied by
the NRC staff, the NRC staff would briefly state the reasons for the
denial. The requester could challenge the NRC staff's adverse
determination or denial of access; similarly, a party other than the
requester could challenge a grant of access to SUNSI if that party's
interest independent of the proceeding would be harmed by the release
of the information. Depending on the applicable access procedures and
provisions of the SGI rule (after they become effective), such a
challenge would be filed with any presiding officer assigned to the
proposed NRC licensing action; or if no presiding officer has yet been
assigned, with the Chief Administrative Judge of the Atomic Safety and
Licensing Board Panel; or if he or she is unavailable, with another
administrative judge, or with an administrative law judge with
jurisdiction under 10 CFR 2.318(a); or, if another officer has been
designated to rule on information access issues, with that officer.
As explained above, requests for this information at this stage of
a proceeding would initially be made to and decided by the NRC staff.
However, the draft access procedures would not apply to license
transfer adjudications (for which the Commission has already chosen a
different procedural approach),\3\ the pending High Level Waste (HLW)
Pre-License Application Presiding Officer proceeding (PAPO), or any
subsequent adjudication regarding the Department of Energy's (DOE)
expected application for a construction authorization for a HLW
repository.
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\3\ See Consolidated Edison Co. (Indian Point, Units 1 and 2),
CLI-01-8, 53 NRC 225, 231 (2001); Power Authority of the State of
New York (James A. FitzPatrick Nuclear Power Plant; Indian Point,
Unit 3), CLI-00-22, 52 NRC 266, 292 (2000). In these decisions, the
Commission established a procecdure for making confidential
commercial information available to petitioners to intervene in
which the applicant and petitioners may negotiate a confidentiality
agreement or a proposed protective order. If no agreement can be
reached, one or more individuals may move for issuance of a
protective order.
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The draft access procedures also include time periods for
submission of requests for access, for NRC staff determinations, for
filing of contentions, and for challenges to appeal NRC staff access
determinations. These periods are intended to minimize the potential
for delay in the admission of contentions.\4\
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\4\ The final access procedures, a final rule delegating
authority to issue Orders under the procedures to the Secretary of
the Commission, and the NRC staff's response to public comments on
the draft procedures were recently made available to the public in
ADAMS (ML080380626, ML080380608, and ML080380633).
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This final rulemaking deals with interlocutory review (review
permitted immediately rather than at the end of a proceeding) by the
Commission of certain orders granting or denying access to SUNSI or
SGI. The amendments to 10 CFR 2.311 recognize the potential role of
access to information on the proposed licensing action by potential
parties in determining whether to request a hearing or to intervene in
a hearing or to support these requests. Extending the opportunity to
seek interlocutory review by the Commission of orders relating to these
requests should enhance both public involvement in NRC adjudicatory
proceedings and the effectiveness and efficiency of these proceedings.
II. Discussion
Section 2.311 provides for ``interlocutory'' review by the
Commission of orders issued by a presiding officer or Atomic Safety and
Licensing Board \5\ on requests for hearing or petitions to intervene
and selection of hearing procedures. However, there is no comparable
provision for interlocutory Commission review of orders relating to
requests by potential parties for access to information described
previously. To address this omission, the Commission is changing the
rules of practice in 10 CFR Part 2 as described below.
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\5\ The term ``Atomic Safety and Licensing Board'' will be
deleted because the definition of ``presiding officer'' in 10 CFR
2.4 includes that term.
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The definitions in Sec. 2.4 are modified to add a definition of
Potential party as follows: Potential party means any person who has
requested, or who may intend to request, a hearing or petition to
intervene in a hearing under 10 CFR Part 2, other than hearings
conducted under Subparts J and M of 10 CFR Part 2.
This definition does not rely on the definition of Party in Sec.
2.1001 of Subpart J, applicable to a party in a proceeding for the
issuance of licenses related to a high-level radioactive waste (HLW)
geologic repository. As stated in Sec. 2.1001, the term Party is
defined only for purposes of Subpart J of 10 CFR Part 2.\6\ Similarly,
the definition by its terms does not apply to a proceeding conducted
under Subpart M (``Procedures for Hearings on License Transfer
Applications'').
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\6\ See the discussion in Section I of this document regarding
the inapplicability of the interlocutory appeal process that is the
subject of this final rule to the pending HLW PAPO proceeding or to
any subsequent adjudication regarding the expected application by
DOE for a construction authorization for a HLW repository.
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The revised Sec. 2.311 allows potential parties (persons who may
intend to request a hearing or petition for leave to intervene in a
hearing) as well as the NRC staff, applicants, or licensees, to seek
expedited review by the Commission of certain orders. Among these are
orders relating to a request by potential parties for access to SUNSI
and SGI. This amendment is necessary to provide an avenue for promptly
obtaining Commission review of these determinations, some of which
might ultimately result in denial of a request for a hearing or for
leave to intervene for failure to meet the requirements for standing
and admissibility of contentions. Specific changes to Sec. 2.311 are
discussed below.
The rule amends 10 CFR 2.311(a) by making the following changes. In
addition to deletion of the reference in paragraph (a) to the Atomic
Safety and Licensing Board, paragraph (a) is further modified. First,
language is added to include orders other than those issued by the
presiding officer: e.g., if a presiding officer has not been
designated, orders of the Chief Administrative Judge, or if he or she
is unavailable, of another administrative judge, or of an
administrative law judge with jurisdiction under Sec. 2.318(a). This
change recognizes that a presiding officer might not have been
designated when a potential party is seeking interlocutory review by
the Commission. Also, paragraph (a) is divided into paragraphs (a)(1),
(a)(2), and (a)(3), and a new paragraph (b) is added. Paragraphs (a)(1)
and (a)(2) retain orders on a request for hearing or petition to
intervene as orders on which interlocutory review by the Commission may
be sought. New paragraph (a)(3) adds to these categories an order
relating to a request for access to SUNSI (including, but not limited
to, proprietary, confidential commercial,
[[Page 12629]]
and security-related information) and SGI. Access to this information
could be deemed necessary by a potential party to determine whether to
request a hearing or petition to intervene or to support such requests.
This paragraph also adds language authorizing an appeal, in connection
with such a request, of an order of an officer designated to rule on
information access issues. This language is necessary because, as is
contemplated by the access procedures discussed in Section I of this
preamble and by the Commission's final rule in development concerning
SGI, a judge may be specifically designated to adjudicate information
access issues. The remainder of paragraph (a), addressing requirements
relating to such matters as the initiation and filing of appeals, is
redesignated as paragraph (b).
In light of the above modifications, current paragraphs (b), (c),
and (d) are redesignated as paragraphs (c), (d), and (e), respectively.
In redesignated paragraph (c), an order denying a request for access to
the information described in paragraph (a), is included as an order
appealable by the petitioner/requester on the question as to whether
the request and/or petition should have been granted. Former paragraph
(c), redesignated as paragraph (d), concerns appeals by a party other
than the requester/petitioner. This paragraph is modified to address in
paragraph (d)(1) appeals of orders granting a petition to intervene
and/or hearing and in paragraph (d)(2), appeals of orders granting
requests for access to information. The appealable issue in paragraph
(d)(2) is whether the request for access should have been denied in
whole or in part. Paragraph (d) in the current rule is redesignated as
paragraph (e) but is otherwise unchanged.
III. Analysis of Public Comments on the Proposed Rule
The Commission received two comment letters on the proposed rule
(72 FR 32018; June 11, 2007) one from the Nuclear Energy Institute
(NEI) and the other from Progress Energy. NEI supported the rule as
proposed. Progress Energy suggested revisions to the Background section
of the rule's Supplementary Information to make clear that a licensee
or applicant may challenge an NRC staff grant of access to SUNSI or
SGI. Progress Energy stated that the proposed rule provides for these
appeals as a counterpart to the provision allowing access-requesters to
challenge denials of these requests. Progress Energy stated that this
approach is consistent with existing practices for the treatment of
proprietary information in NRC adjudications. Progress Energy
identified several specific places in the Background section where
references should be added to clarify the appeal rights of applicants
or licensees.
In addition, the Commission received two comment letters on the
related draft access procedures; one of these comments indirectly
addressed the proposed rule. The commenter, a law firm that represents
utilities, stated that an applicant or licensee should have an
opportunity to have input concerning the propriety of providing SUNSI
or SGI to the requesting party. The commenter referenced the proposed
interlocutory review rule in stating that applicants and licensees (as
well as the NRC staff) should have an opportunity to participate in
challenges to access determinations.
NRC Response
The proposed rule provided that a party other than the access-
requester may argue on appeal that the access request ``should have
been denied in whole or in part.'' See, Sec. 2.311(d)(2). The issue
raised by the comments has prompted the Commission to reconsider the
permissible scope of interlocutory appeals by parties other than those
requesting access to SUNSI or SGI.
The Commission agrees with the commenter's general point concerning
the parallel appeal provisions for applicants/licensees with respect to
disputes over proprietary information. In such circumstances, the
applicant/licensee could be uniquely affected by improper disclosure
and should have an opportunity to contest that access determination.
However, because of the NRC staff obligation and strong interest in
protecting SGI and because of the diverse types of information that may
be designated as SUNSI, the Commission concludes that efficient
resolution of information access issues would not be furthered by
expediting appeals of favorable access determinations with respect to
SGI or with respect to SUNSI in which the appealing party has no direct
independent interest.
A key purpose of the amended provision is to permit prompt
Commission review of access determinations concerning information that
potential parties may deem necessary to meet Commission hearing
requirements. For SGI and for most types of SUNSI, the NRC staff's role
and expertise in making access determinations (and appealing contrary
presiding officer orders to the Commission, if necessary) will serve to
protect the information from unnecessary disclosure. Accordingly, the
NRC staff's opportunity to appeal favorable determinations generally
does not need to be duplicated by appeals from other parties. However,
the potential value of interlocutory appeals by parties other than the
requester may justify the additional adjudication time and resources in
circumstances when improper disclosure could harm those parties'
independent interests. Therefore, under the final rule, interlocutory
review of favorable information access rulings with respect to SGI may
be sought only by the NRC staff or, with respect to SUNSI, by the NRC
staff or by a party with a directly affected independent interest. As
explained below, the Commission has limited and clarified the rule text
and Supplementary Information in this document accordingly.
A potential party requesting access to SUNSI must demonstrate a
``need'' for the requested information, while a potential party
requesting access to SGI must demonstrate both a ``need to know'' the
requested SGI and that the recipient of the information is
``trustworthy and reliable.'' The SGI trustworthiness and reliability
determination is based on a background check (including fingerprinting
as part of a criminal history records check). In NRC adjudications,
making the initial need to know and trustworthiness and reliability
determinations will generally be the responsibility of the NRC staff.
Upon further consideration, the Commission concludes that the rule
should not permit challenges by parties other than the NRC staff to
grants of access to SGI held by the NRC staff.\7\ First, with respect
to an SGI requester's trustworthiness and reliability, the NRC staff
and the SGI requester are the only potential parties who will have
access to the results of the background check (including the criminal
history records check) on which the trustworthiness and reliability
determination is based. Therefore, it is unlikely that another
potential party would have a relevant factual basis for challenging the
soundness of the determination. Moreover, enabling such challenges
could encourage frivolous ``untrustworthiness/unreliability'' claims
solely intended to undermine an opposing party's credibility or delay
the proceedings. Furthermore, given the NRC staff's robust obligation
to ensure that dissemination of SGI is appropriately limited to
trustworthy and reliable individuals and to those with a need to know,
litigating these objections
[[Page 12630]]
by other potential parties would be more likely to distract from
resolution of the issues than to enhance protection of SGI.
Accordingly, the final rule does not extend to appeals by non-
requesters of favorable SGI access determinations. However, because of
the NRC staff's responsibility for protecting SGI in NRC proceedings,
appeals by the NRC staff will remain within the scope of the rule.
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\7\ Similarly, the final access procedures do not address
information possessed solely by a licensee or applicant.
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Similarly, with respect to SUNSI, the rule should not permit
challenges to a favorable determination of ``need'' for information in
which the challenging party has no direct interest independent of the
adjudicatory proceeding. For most SUNSI, the NRC staff's regulatory
responsibility for releasing the information only to those
demonstrating need should provide sufficient assurance that favorable
access determinations are sound. Accordingly, expending time and
resources to hear third-party challenges (and subsequently permit
expedited Commission review) concerning that information would not be
justified. However, as indicated by the commenter, improper release of
certain categories of SUNSI--namely proprietary information, privacy
information, certain security-related information, or information
controlled by other Government agencies--could have a direct impact on
independent interests of other parties to the proceeding. For these
types of information, it remains appropriate for such an affected party
to be able to challenge a presiding officer determination that access
be granted.
For the above reasons, the Commission has modified proposed Sec.
2.311(d)(2) to state that review is permitted on the question of
``Whether the request for access to the information described in
paragraph (a)(3) of this section should have been denied in whole or in
part. However, such a question with respect to SGI may only be appealed
by the NRC staff, and such a question with respect to SUNSI may be
appealed only by the NRC staff or by a party whose interest independent
of the proceeding would be harmed by the release of the information.''
The Commission has also made a minor grammatical correction to the
first sentence of Sec. 2.311(d)--inserting the word ``granting''
before ``a request for information'' so that it is clearer that appeals
under this section relate only to orders granting access to
information. Finally, to emphasize that Sec. 2.311(d)(2), not (d)(1),
is the paragraph governing appeals of orders granting requests for
access to SUNSI and SGI, the Commission has revised the text of Sec.
2.311(d)(1) to refer to a ``request for hearing or petition to
intervene'' rather than just a ``request/petition.''
IV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed or adopted by voluntary consensus
standards bodies unless using such a standard is inconsistent with
applicable law or is otherwise impractical. The NRC is permitting
potential parties to seek interlocutory Commission review of orders
denying a request for access to information for the preparation of
contentions. This action does not constitute the establishment of a
government-unique standard as defined in the Office of Management and
Budget (OMB) Circular A-119 (1998).
V. Environmental Impact: Categorical Exclusion
The NRC has determined that this proposed regulation is the type of
action described in 10 CFR 51.22(c)(1). Therefore, neither an
environmental impact statement nor an environmental assessment has been
prepared for this proposed regulation.
VI. Paperwork Reduction Act Statement
This proposed rule contains no information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
VII. Regulatory Analysis
A regulatory analysis has not been prepared for this regulation
because it applies to the procedures to be used in NRC adjudicatory
proceedings and does not involve any provisions that would impose any
economic burdens on licensees or the public.
VIII. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the
Commission certifies that this rule will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
This rule only governs procedural aspects to provide for expedited
review by the Commission of orders on requests by potential parties for
access to certain sensitive unclassified non-safeguards information
(SUNSI) and Safeguards Information (SGI).
IX. Backfit Analysis
The NRC has determined that the backfit rules (Sec. Sec. 50.109,
70.76, 72.62, or 76.76) do not apply to this final rule because these
amendments do not involve any provisions that would impose backfits as
defined in 10 CFR Chapter I. Therefore, a backfit analysis is not
required.
X. Congressional Review Act
Under the Congressional Review Act, the NRC has determined that
this action is not a major rule and has verified this determination
with the Office of Information and Regulatory Affairs of OMB.
List of Subjects in 10 CFR Part 2
Administrative practice and procedure, Byproduct material,
Classified information, Environmental protection, Nuclear materials,
Nuclear power plants and reactors, Penalties, Sex discrimination,
Source material, Special nuclear material, Waste treatment and
disposal.
0
For the reasons set out in the preamble and under the authority of the
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of
1974, as amended; the Energy Policy Act of 2005, and 5 U.S.C. 552 and
553; the NRC is adopting the following amendments to 10 CFR part 2.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
FOR ISSUANCE OF ORDERS
0
1. The authority citation for part 2 continues to read as follows:
Authority: Secs.161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Public Law 87-615, 76
Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42
U.S.C. 5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C.
3504 note).
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C.
2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Public Law
97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)); sec. 102,
Public Law 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec.
301, 88 Stat. 1248 (42 U.S.C. 5871).
Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under
secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954,
955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239).
Section 2.105 also issued under Public Law 97-415, 96 Stat. 2073 (42
U.S.C. 2239). Sections 2.200-2.206 also
[[Page 12631]]
issued under secs. 161 b, i, o, 182, 186, 234, 68 Stat. 948-951,
955, 83 Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236,
2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.205(j)
also issued under Public Law 101-410, 104 Stat. 90, as amended by
section 3100(s), Public Law 104-134, 110 Stat. 1321-373 (28 U.S.C.
2461 note). Sections 2.600-2.606 also issued under sec. 102, Public
Law 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections
2.700a, 2.719 also issued under 5 U.S.C. 554.
Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C.
557. Section 2.764 also issued under secs. 135, 141, Public Law 97--
425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790
also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C.
2133), and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under
5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553, and sec.
29, Public Law 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039).
Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239);
sec. 134, Public Law 97-425, 96 Stat. 2230 (42 U.S.C. 10154).
Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239).
Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189,
68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6,
Public Law 91-550, 84 Stat. 1473 (42 U.S.C. 2135).
0
2. In Sec. 2.4, a definition of Potential party is added in
alphabetical order to read as follows:
Sec. 2.4 Definitions.
* * * * *
Potential party means any person who has requested, or who may
intend to request, a hearing or petition to intervene in a hearing
under 10 CFR part 2, other than hearings conducted under Subparts J and
M of 10 CFR part 2.
* * * * *
0
3. Section 2.311 is revised to read as follows:
Sec. 2.311 Interlocutory review of rulings on requests for hearings/
petitions to intervene, selection of hearing procedures, and requests
by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.
(a) An order of the presiding officer, or if a presiding officer
has not been designated, of the Chief Administrative Judge, or if he or
she is unavailable, of another administrative judge, or of an
administrative law judge with jurisdiction under Sec. 2.318(a), may be
appealed to the Commission with respect to:
(1) A request for hearing;
(2) A petition to intervene; or
(3) A request for access to sensitive unclassified non-safeguards
information (SUNSI), including, but not limited to, proprietary,
confidential commercial, and security-related information, and
Safeguards Information (SGI). An appeal to the Commission may also be
taken from an order of an officer designated to rule on information
access issues.
(b) These appeals must be made as specified by the provisions of
this section, within ten (10) days after the service of the order. The
appeal must be initiated by the filing of a notice of appeal and
accompanying supporting brief. Any party who opposes the appeal may
file a brief in opposition to the appeal within ten (10) days after
service of the appeal. The supporting brief and any answer must conform
to the requirements of Sec. 2.341(c)(2). No other appeals from rulings
on requests for hearings are allowed.
(c) An order denying a petition to intervene, and/or request for
hearing, or a request for access to the information described in
paragraph (a) of this section, is appealable by the requestor/
petitioner on the question as to whether the request and/or petition
should have been granted.
(d) An order granting a petition to intervene, and/or request for
hearing, or granting a request for access to the information described
in paragraph (a) of this section, is appealable by a party other than
the requestor/petitioner on the question as to:
(1) Whether the request for hearing or petition to intervene should
have been wholly denied; or
(2) Whether the request for access to the information described in
paragraph (a)(3) of this section should have been denied in whole or in
part. However, such a question with respect to SGI may only be appealed
by the NRC staff, and such a question with respect to SUNSI may be
appealed only by the NRC staff or by a party whose interest independent
of the proceeding would be harmed by the release of the information.
(e) An order selecting a hearing procedure may be appealed by any
party on the question as to whether the selection of the particular
hearing procedures was in clear contravention of the criteria set forth
in Sec. 2.310. The appeal must be filed with the Commission no later
than ten (10) days after issuance of the order selecting a hearing
procedure.
Dated at Rockville, Maryland, this 4th day of March 2008.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. E8-4768 Filed 3-7-08; 8:45 am]
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