[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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  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.

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

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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'').
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\ Similarly, the final access procedures do not address 
information possessed solely by a licensee or applicant.
---------------------------------------------------------------------------

    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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