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12627

Rules and Regulations Federal Register


Vol. 73, No. 47

Monday, March 10, 2008

This section of the FEDERAL REGISTER One White Flint North, 11555 Rockville SGI.2 Development of the procedures for
contains regulatory documents having general Pike, Rockville, Maryland. The PDR access by potential parties and of the
applicability and legal effect, most of which reproduction contractor will copy SGI rule is separate from, and not a part
are keyed to and codified in the Code of documents for a fee. of, this amendment to 10 CFR 2.311.
Federal Regulations, which is published under The revisions to 10 CFR 2.311 provide
50 titles pursuant to 44 U.S.C. 1510. FOR FURTHER INFORMATION CONTACT:
Tison Campbell, Attorney, Office of the for interlocutory review by the
The Code of Federal Regulations is sold by General Counsel, U.S. Nuclear Commission of access determinations
the Superintendent of Documents. Prices of Regulatory Commission, Washington, made under those procedures, but
new books are listed in the first FEDERAL DC 20555–0001, telephone (301) 415– § 2.311 does not control how the initial
REGISTER issue of each week. 8579, e-mail tison.campbell@nrc.gov. access determinations are made.
However, a brief discussion of the
SUPPLEMENTARY INFORMATION:
purpose of those procedures is
NUCLEAR REGULATORY I. Background necessary to explain the Commission’s
COMMISSION II. Discussion intent in revising § 2.311.
III. Analysis of Public Comments on the Under the draft procedures for
10 CFR Part 2 Proposed Rule information access, a Federal Register
IV. Voluntary Consensus Standards
RIN 3150–AI08 V. Environmental Impact: Categorical
notice of hearing, or a notice of
Exclusion opportunity for hearing on a licensing or
Interlocutory Review of Rulings on VI. Paperwork Reduction Act Statement other regulatory action, would instruct
Requests by Potential Parties for VII. Regulatory Analysis persons who claim a need for access to
Access to Sensitive Unclassified Non- VIII. Regulatory Flexibility Certification SUNSI or SGI in order to prepare a
Safeguards Information and IX. Backfit Analysis hearing request or intervention petition
Safeguards Information X. Congressional Review Act to submit a request by letter to specified
I. Background Commission offices, within a specified
AGENCY: Nuclear Regulatory time period from the issuance of the
Commission. Commission regulations in 10 CFR notice. The letter request for either
ACTION: Final rule. part 2, ‘‘Rules of Practice for Domestic SUNSI or SGI would have to contain
Licensing Proceedings and Issuance of certain elements, such as a description
SUMMARY: The Nuclear Regulatory Orders’’ govern the conduct of NRC of the NRC licensing or enforcement
Commission (NRC or Commission) is adjudicatory proceedings. Potential action at issue (with citations to the
amending its regulations to provide for parties who may request a hearing or relevant FRN); a description of the
expedited (and, in this case, petition to intervene in a hearing under potential party’s particular interest that
‘‘interlocutory’’) review by the 10 CFR part 2 may deem it necessary to could be harmed by the potential NRC
Commission of orders on requests by obtain access to sensitive unclassified action; and the identity of the
potential parties for access to certain non-safeguards information (SUNSI) individual requesting access to the
sensitive unclassified non-safeguards (including, but not limited to, information and that individual’s need
information (SUNSI) and Safeguards proprietary, confidential commercial, for the information in order to
Information (SGI). and security-related information) and to meaningfully participate in the
DATES: The effective date is April 9, Safeguards Information (SGI) as defined adjudicatory proceeding. Access to SGI
2008. in 10 CFR 73.2 to meet Commission under the draft access procedures also
requirements for hearing requests or for would require: (1) A showing of the
ADDRESSES: Publicly available
intervention. technical competence of the requester to
documents created or received at the
In order to facilitate access to the understand and use the requested
NRC after November 1, 1999, are
information described above, the information to provide the basis and
available electronically on the NRC’s
Commission has developed, and made specificity for a proffered contention
Web site in the Electronic Reading
available for public comment,1 draft and (2) completion of a background
Room at http://www.nrc.gov/reading-
access procedures to address receipt of check (including fingerprinting as part
rm/adams.html. From this page, the
this information by potential parties. In of a criminal history records check, as
public can gain entry into the NRC’s
addition, the Commission is completing well as a credit check release) to
Agencywide Documents Access and
a final rule to update its regulations establish trustworthiness and reliability.
Management System (ADAMS), which
governing access to and protection of Because these background checks may
provides text and image files of NRC’s
public documents. If you do not have take up to several months to complete,
1 See ‘‘Interlocutory Review of Rulings on
access to ADAMS or if there are the draft access procedures include a
Requests by Potential Parties for Access to Sensitive
problems in accessing the documents Unclassified Non-Safeguards Information and ‘‘pre-clearance’’ process by which
located in ADAMS, contact the PDR Safeguards Information; Reopening of Public potential parties who may seek access to
Reference staff at 1–800–397–4209, 301– Comment Period and Notice of Availability of SGI could request initiation of the
Proposed Procedures for Comment’’ (72 FR 43569; background check prior to a notice of
415–4737 or by e-mail at pdr@nrc.gov. August 6, 2007). The draft access procedures
hearing and thereby minimize delays in
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Publicly available documents related to document, ‘‘Availability for Comment of Proposed


this rulemaking, including comments, Procedures to Allow Potential Intervenors to Gain
Access to Relevant Records That Contain Sensitive 2 See, ‘‘Protection of Safeguards Information,’’ (71
may be viewed electronically on the Unclassified Non-Safeguards Information or FR 64004; Oct. 31, 2006). The comment period on
public computers located at the NRC’s Safeguards Information,’’ is available in ADAMS at that proposed rule expired January 2, 2007, and a
Public Document Room (PDR), O1 F21, ML071910149. final rule is under development.

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12628 Federal Register / Vol. 73, No. 47 / Monday, March 10, 2008 / Rules and Regulations

the preparation (and, if appropriate, License Application Presiding Officer This definition does not rely on the
adjudication) of security-related proceeding (PAPO), or any subsequent definition of Party in § 2.1001 of
contentions. adjudication regarding the Department Subpart J, applicable to a party in a
Based on an evaluation of the of Energy’s (DOE) expected application proceeding for the issuance of licenses
information submitted, the NRC staff for a construction authorization for a related to a high-level radioactive waste
would determine whether (1) there is a HLW repository. (HLW) geologic repository. As stated in
reasonable basis to believe that a The draft access procedures also § 2.1001, the term Party is defined only
potential party is likely to establish include time periods for submission of for purposes of Subpart J of 10 CFR Part
standing to intervene or to otherwise requests for access, for NRC staff 2.6 Similarly, the definition by its terms
participate as a party in an adjudicatory determinations, for filing of contentions, does not apply to a proceeding
proceeding and (2) the proposed and for challenges to appeal NRC staff conducted under Subpart M
recipient of the information has access determinations. These periods (‘‘Procedures for Hearings on License
demonstrated a need for access to are intended to minimize the potential Transfer Applications’’).
SUNSI, a need for access to SGI, a ‘‘need for delay in the admission of The revised § 2.311 allows potential
to know,’’ and that the proposed contentions.4 parties (persons who may intend to
recipient is trustworthy and reliable. If This final rulemaking deals with request a hearing or petition for leave to
the request for access to SUNSI or SGI interlocutory review (review permitted intervene in a hearing) as well as the
is granted, the terms and conditions for immediately rather than at the end of a NRC staff, applicants, or licensees, to
this access would be set forth in a draft proceeding) by the Commission of seek expedited review by the
protective order and affidavit of non- certain orders granting or denying Commission of certain orders. Among
disclosure. If the request for access to access to SUNSI or SGI. The these are orders relating to a request by
SUNSI or SGI is denied by the NRC amendments to 10 CFR 2.311 recognize potential parties for access to SUNSI
staff, the NRC staff would briefly state the potential role of access to and SGI. This amendment is necessary
the reasons for the denial. The requester information on the proposed licensing to provide an avenue for promptly
could challenge the NRC staff’s adverse action by potential parties in obtaining Commission review of these
determination or denial of access; determining whether to request a determinations, some of which might
similarly, a party other than the hearing or to intervene in a hearing or ultimately result in denial of a request
requester could challenge a grant of to support these requests. Extending the for a hearing or for leave to intervene for
access to SUNSI if that party’s interest opportunity to seek interlocutory review failure to meet the requirements for
independent of the proceeding would be by the Commission of orders relating to standing and admissibility of
harmed by the release of the these requests should enhance both contentions. Specific changes to § 2.311
information. Depending on the public involvement in NRC adjudicatory are discussed below.
applicable access procedures and proceedings and the effectiveness and The rule amends 10 CFR 2.311(a) by
provisions of the SGI rule (after they efficiency of these proceedings. making the following changes. In
become effective), such a challenge addition to deletion of the reference in
II. Discussion
would be filed with any presiding paragraph (a) to the Atomic Safety and
officer assigned to the proposed NRC Section 2.311 provides for Licensing Board, paragraph (a) is further
licensing action; or if no presiding ‘‘interlocutory’’ review by the modified. First, language is added to
officer has yet been assigned, with the Commission of orders issued by a include orders other than those issued
Chief Administrative Judge of the presiding officer or Atomic Safety and by the presiding officer: e.g., if a
Atomic Safety and Licensing Board Licensing Board 5 on requests for presiding officer has not been
Panel; or if he or she is unavailable, hearing or petitions to intervene and designated, orders of the Chief
selection of hearing procedures. Administrative Judge, or if he or she is
with another administrative judge, or
However, there is no comparable unavailable, of another administrative
with an administrative law judge with
provision for interlocutory Commission judge, or of an administrative law judge
jurisdiction under 10 CFR 2.318(a); or,
review of orders relating to requests by with jurisdiction under § 2.318(a). This
if another officer has been designated to
potential parties for access to change recognizes that a presiding
rule on information access issues, with
information described previously. To officer might not have been designated
that officer.
As explained above, requests for this address this omission, the Commission when a potential party is seeking
information at this stage of a proceeding is changing the rules of practice in 10 interlocutory review by the
CFR Part 2 as described below. Commission. Also, paragraph (a) is
would initially be made to and decided
The definitions in § 2.4 are modified divided into paragraphs (a)(1), (a)(2),
by the NRC staff. However, the draft
to add a definition of Potential party as and (a)(3), and a new paragraph (b) is
access procedures would not apply to follows: Potential party means any
license transfer adjudications (for which added. Paragraphs (a)(1) and (a)(2)
person who has requested, or who may retain orders on a request for hearing or
the Commission has already chosen a intend to request, a hearing or petition
different procedural approach),3 the petition to intervene as orders on which
to intervene in a hearing under 10 CFR interlocutory review by the Commission
pending High Level Waste (HLW) Pre- Part 2, other than hearings conducted may be sought. New paragraph (a)(3)
3 See Consolidated Edison Co. (Indian Point,
under Subparts J and M of 10 CFR Part adds to these categories an order
Units 1 and 2), CLI–01–8, 53 NRC 225, 231 (2001);
2. relating to a request for access to SUNSI
Power Authority of the State of New York (James (including, but not limited to,
A. FitzPatrick Nuclear Power Plant; Indian Point, 4 The final access procedures, a final rule

Unit 3), CLI–00–22, 52 NRC 266, 292 (2000). In delegating authority to issue Orders under the proprietary, confidential commercial,
these decisions, the Commission established a procedures to the Secretary of the Commission, and
procecdure for making confidential commercial the NRC staff’s response to public comments on the 6 See the discussion in Section I of this document
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information available to petitioners to intervene in draft procedures were recently made available to regarding the inapplicability of the interlocutory
which the applicant and petitioners may negotiate the public in ADAMS (ML080380626, appeal process that is the subject of this final rule
a confidentiality agreement or a proposed protective ML080380608, and ML080380633). to the pending HLW PAPO proceeding or to any
order. If no agreement can be reached, one or more 5 The term ‘‘Atomic Safety and Licensing Board’’ subsequent adjudication regarding the expected
individuals may move for issuance of a protective will be deleted because the definition of ‘‘presiding application by DOE for a construction authorization
order. officer’’ in 10 CFR 2.4 includes that term. for a HLW repository.

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Federal Register / Vol. 73, No. 47 / Monday, March 10, 2008 / Rules and Regulations 12629

and security-related information) and treatment of proprietary information in the NRC staff’s opportunity to appeal
SGI. Access to this information could be NRC adjudications. Progress Energy favorable determinations generally does
deemed necessary by a potential party identified several specific places in the not need to be duplicated by appeals
to determine whether to request a Background section where references from other parties. However, the
hearing or petition to intervene or to should be added to clarify the appeal potential value of interlocutory appeals
support such requests. This paragraph rights of applicants or licensees. by parties other than the requester may
also adds language authorizing an In addition, the Commission received justify the additional adjudication time
appeal, in connection with such a two comment letters on the related draft and resources in circumstances when
request, of an order of an officer access procedures; one of these improper disclosure could harm those
designated to rule on information access comments indirectly addressed the parties’ independent interests.
issues. This language is necessary proposed rule. The commenter, a law Therefore, under the final rule,
because, as is contemplated by the firm that represents utilities, stated that interlocutory review of favorable
access procedures discussed in Section an applicant or licensee should have an information access rulings with respect
I of this preamble and by the opportunity to have input concerning to SGI may be sought only by the NRC
Commission’s final rule in development the propriety of providing SUNSI or SGI staff or, with respect to SUNSI, by the
concerning SGI, a judge may be to the requesting party. The commenter NRC staff or by a party with a directly
specifically designated to adjudicate referenced the proposed interlocutory affected independent interest. As
information access issues. The review rule in stating that applicants explained below, the Commission has
remainder of paragraph (a), addressing and licensees (as well as the NRC staff) limited and clarified the rule text and
requirements relating to such matters as should have an opportunity to Supplementary Information in this
the initiation and filing of appeals, is participate in challenges to access document accordingly.
redesignated as paragraph (b). determinations. A potential party requesting access to
In light of the above modifications, SUNSI must demonstrate a ‘‘need’’ for
NRC Response
current paragraphs (b), (c), and (d) are the requested information, while a
redesignated as paragraphs (c), (d), and The proposed rule provided that a potential party requesting access to SGI
(e), respectively. In redesignated party other than the access-requester must demonstrate both a ‘‘need to
paragraph (c), an order denying a may argue on appeal that the access know’’ the requested SGI and that the
request for access to the information request ‘‘should have been denied in recipient of the information is
described in paragraph (a), is included whole or in part.’’ See, § 2.311(d)(2). ‘‘trustworthy and reliable.’’ The SGI
as an order appealable by the petitioner/ The issue raised by the comments has trustworthiness and reliability
requester on the question as to whether prompted the Commission to reconsider determination is based on a background
the request and/or petition should have the permissible scope of interlocutory check (including fingerprinting as part
been granted. Former paragraph (c), appeals by parties other than those of a criminal history records check). In
redesignated as paragraph (d), concerns requesting access to SUNSI or SGI. NRC adjudications, making the initial
appeals by a party other than the The Commission agrees with the need to know and trustworthiness and
requester/petitioner. This paragraph is commenter’s general point concerning reliability determinations will generally
modified to address in paragraph (d)(1) the parallel appeal provisions for be the responsibility of the NRC staff.
appeals of orders granting a petition to applicants/licensees with respect to Upon further consideration, the
intervene and/or hearing and in disputes over proprietary information. Commission concludes that the rule
paragraph (d)(2), appeals of orders In such circumstances, the applicant/ should not permit challenges by parties
granting requests for access to licensee could be uniquely affected by other than the NRC staff to grants of
information. The appealable issue in improper disclosure and should have an access to SGI held by the NRC staff.7
paragraph (d)(2) is whether the request opportunity to contest that access First, with respect to an SGI requester’s
for access should have been denied in determination. However, because of the trustworthiness and reliability, the NRC
whole or in part. Paragraph (d) in the NRC staff obligation and strong interest staff and the SGI requester are the only
current rule is redesignated as in protecting SGI and because of the potential parties who will have access to
paragraph (e) but is otherwise diverse types of information that may be the results of the background check
unchanged. designated as SUNSI, the Commission (including the criminal history records
concludes that efficient resolution of check) on which the trustworthiness
III. Analysis of Public Comments on the information access issues would not be
Proposed Rule and reliability determination is based.
furthered by expediting appeals of Therefore, it is unlikely that another
The Commission received two favorable access determinations with potential party would have a relevant
comment letters on the proposed rule respect to SGI or with respect to SUNSI factual basis for challenging the
(72 FR 32018; June 11, 2007) one from in which the appealing party has no soundness of the determination.
the Nuclear Energy Institute (NEI) and direct independent interest. Moreover, enabling such challenges
the other from Progress Energy. NEI A key purpose of the amended
could encourage frivolous
supported the rule as proposed. Progress provision is to permit prompt
‘‘untrustworthiness/unreliability’’
Energy suggested revisions to the Commission review of access
claims solely intended to undermine an
Background section of the rule’s determinations concerning information
opposing party’s credibility or delay the
Supplementary Information to make that potential parties may deem
proceedings. Furthermore, given the
clear that a licensee or applicant may necessary to meet Commission hearing
NRC staff’s robust obligation to ensure
challenge an NRC staff grant of access to requirements. For SGI and for most
that dissemination of SGI is
SUNSI or SGI. Progress Energy stated types of SUNSI, the NRC staff’s role and
appropriately limited to trustworthy and
that the proposed rule provides for these expertise in making access
reliable individuals and to those with a
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appeals as a counterpart to the provision determinations (and appealing contrary


need to know, litigating these objections
allowing access-requesters to challenge presiding officer orders to the
denials of these requests. Progress Commission, if necessary) will serve to 7 Similarly, the final access procedures do not
Energy stated that this approach is protect the information from address information possessed solely by a licensee
consistent with existing practices for the unnecessary disclosure. Accordingly, or applicant.

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12630 Federal Register / Vol. 73, No. 47 / Monday, March 10, 2008 / Rules and Regulations

by other potential parties would be hearing or petition to intervene’’ rather for expedited review by the Commission
more likely to distract from resolution of than just a ‘‘request/petition.’’ of orders on requests by potential
the issues than to enhance protection of parties for access to certain sensitive
IV. Voluntary Consensus Standards
SGI. Accordingly, the final rule does not unclassified non-safeguards information
extend to appeals by non-requesters of The National Technology Transfer (SUNSI) and Safeguards Information
favorable SGI access determinations. and Advancement Act of 1995, Public (SGI).
However, because of the NRC staff’s Law 104–113, requires that Federal
responsibility for protecting SGI in NRC agencies use technical standards that are IX. Backfit Analysis
proceedings, appeals by the NRC staff developed or adopted by voluntary The NRC has determined that the
will remain within the scope of the rule. consensus standards bodies unless backfit rules (§§ 50.109, 70.76, 72.62, or
Similarly, with respect to SUNSI, the using such a standard is inconsistent 76.76) do not apply to this final rule
rule should not permit challenges to a with applicable law or is otherwise because these amendments do not
favorable determination of ‘‘need’’ for impractical. The NRC is permitting involve any provisions that would
information in which the challenging potential parties to seek interlocutory impose backfits as defined in 10 CFR
party has no direct interest independent Commission review of orders denying a Chapter I. Therefore, a backfit analysis
of the adjudicatory proceeding. For most request for access to information for the is not required.
SUNSI, the NRC staff’s regulatory preparation of contentions. This action X. Congressional Review Act
responsibility for releasing the does not constitute the establishment of
information only to those demonstrating a government-unique standard as Under the Congressional Review Act,
need should provide sufficient defined in the Office of Management the NRC has determined that this action
assurance that favorable access and Budget (OMB) Circular A–119 is not a major rule and has verified this
determinations are sound. Accordingly, (1998). determination with the Office of
expending time and resources to hear Information and Regulatory Affairs of
third-party challenges (and V. Environmental Impact: Categorical OMB.
subsequently permit expedited Exclusion
List of Subjects in 10 CFR Part 2
Commission review) concerning that The NRC has determined that this
information would not be justified. proposed regulation is the type of action Administrative practice and
However, as indicated by the described in 10 CFR 51.22(c)(1). procedure, Byproduct material,
commenter, improper release of certain Therefore, neither an environmental Classified information, Environmental
categories of SUNSI—namely impact statement nor an environmental protection, Nuclear materials, Nuclear
proprietary information, privacy assessment has been prepared for this power plants and reactors, Penalties,
information, certain security-related proposed regulation. Sex discrimination, Source material,
information, or information controlled Special nuclear material, Waste
by other Government agencies—could VI. Paperwork Reduction Act treatment and disposal.
have a direct impact on independent Statement
■ For the reasons set out in the
interests of other parties to the This proposed rule contains no preamble and under the authority of the
proceeding. For these types of information collection requirements Atomic Energy Act of 1954, as amended;
information, it remains appropriate for and, therefore, is not subject to the the Energy Reorganization Act of 1974,
such an affected party to be able to requirements of the Paperwork as amended; the Energy Policy Act of
challenge a presiding officer Reduction Act of 1995 (44 U.S.C. 3501 2005, and 5 U.S.C. 552 and 553; the
determination that access be granted. et seq.). NRC is adopting the following
For the above reasons, the amendments to 10 CFR part 2.
Commission has modified proposed Public Protection Notification
§ 2.311(d)(2) to state that review is The NRC may not conduct or sponsor, PART 2—RULES OF PRACTICE FOR
permitted on the question of ‘‘Whether and a person is not required to respond DOMESTIC LICENSING PROCEEDINGS
the request for access to the information to, a request for information or an AND FOR ISSUANCE OF ORDERS
described in paragraph (a)(3) of this information collection requirement
section should have been denied in unless the requesting document ■ 1. The authority citation for part 2
whole or in part. However, such a displays a currently valid OMB control continues to read as follows:
question with respect to SGI may only number. Authority: Secs.161, 181, 68 Stat. 948, 953,
be appealed by the NRC staff, and such as amended (42 U.S.C. 2201, 2231); sec. 191,
a question with respect to SUNSI may VII. Regulatory Analysis as amended, Public Law 87–615, 76 Stat. 409
be appealed only by the NRC staff or by A regulatory analysis has not been (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); 5 U.S.C. 552; sec.
a party whose interest independent of prepared for this regulation because it
1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
the proceeding would be harmed by the applies to the procedures to be used in Section 2.101 also issued under secs. 53,
release of the information.’’ The NRC adjudicatory proceedings and does 62, 63, 81, 103, 104, 68 Stat. 930, 932, 933,
Commission has also made a minor not involve any provisions that would 935, 936, 937, 938, as amended (42 U.S.C.
grammatical correction to the first impose any economic burdens on 2073, 2092, 2093, 2111, 2133, 2134, 2135);
sentence of § 2.311(d)—inserting the licensees or the public. sec. 114(f), Public Law 97–425, 96 Stat. 2213,
word ‘‘granting’’ before ‘‘a request for as amended (42 U.S.C. 10143(f)); sec. 102,
information’’ so that it is clearer that VIII. Regulatory Flexibility Public Law 91–190, 83 Stat. 853, as amended
appeals under this section relate only to Certification (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42
orders granting access to information. Under the Regulatory Flexibility Act U.S.C. 5871).
(5 U.S.C. 605(b)), the Commission Sections 2.102, 2.103, 2.104, 2.105, 2.721
Finally, to emphasize that § 2.311(d)(2),
also issued under secs. 102, 103, 104, 105,
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not (d)(1), is the paragraph governing certifies that this rule will not, if 183i, 189, 68 Stat. 936, 937, 938, 954, 955,
appeals of orders granting requests for promulgated, have a significant as amended (42 U.S.C. 2132, 2133, 2134,
access to SUNSI and SGI, the economic impact on a substantial 2135, 2233, 2239). Section 2.105 also issued
Commission has revised the text of number of small entities. This rule only under Public Law 97–415, 96 Stat. 2073 (42
§ 2.311(d)(1) to refer to a ‘‘request for governs procedural aspects to provide U.S.C. 2239). Sections 2.200–2.206 also

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Federal Register / Vol. 73, No. 47 / Monday, March 10, 2008 / Rules and Regulations 12631

issued under secs. 161 b, i, o, 182, 186, 234, to the Commission may also be taken DEPARTMENT OF TRANSPORTATION
68 Stat. 948–951, 955, 83 Stat. 444, as from an order of an officer designated to
amended (42 U.S.C. 2201 (b), (i), (o), 2236, rule on information access issues. Federal Aviation Administration
2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846).
Section 2.205(j) also issued under Public Law (b) These appeals must be made as
14 CFR Part 97
101–410, 104 Stat. 90, as amended by section specified by the provisions of this
3100(s), Public Law 104–134, 110 Stat. 1321– section, within ten (10) days after the [Docket No. 30595; Amdt. No. 3258]
373 (28 U.S.C. 2461 note). Sections 2.600– service of the order. The appeal must be
2.606 also issued under sec. 102, Public Law Standard Instrument Approach
91–190, 83 Stat. 853, as amended (42 U.S.C.
initiated by the filing of a notice of
Procedures, and Takeoff Minimums
4332). Sections 2.700a, 2.719 also issued appeal and accompanying supporting
and Obstacle Departure Procedures;
under 5 U.S.C. 554. brief. Any party who opposes the appeal
Miscellaneous Amendments
Sections 2.754, 2.760, 2.770, 2.780 also may file a brief in opposition to the
issued under 5 U.S.C. 557. Section 2.764 also appeal within ten (10) days after service AGENCY: Federal Aviation
issued under secs. 135, 141, Public Law 97— of the appeal. The supporting brief and Administration (FAA), DOT.
425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, any answer must conform to the ACTION: Final rule.
10161). Section 2.790 also issued under sec.
103, 68 Stat. 936, as amended (42 U.S.C. requirements of § 2.341(c)(2). No other
SUMMARY: This Rule establishes,
2133), and 5 U.S.C. 552. Sections 2.800 and appeals from rulings on requests for
hearings are allowed. amends, suspends, or revokes Standard
2.808 also issued under 5 U.S.C. 553. Section
2.809 also issued under 5 U.S.C. 553, and
Instrument Approach Procedures
(c) An order denying a petition to (SIAPs) and associated Takeoff
sec. 29, Public Law 85–256, 71 Stat. 579, as intervene, and/or request for hearing, or
amended (42 U.S.C. 2039). Subpart K also Minimums and Obstacle Departure
issued under sec. 189, 68 Stat. 955 (42 U.S.C. a request for access to the information Procedures for operations at certain
2239); sec. 134, Public Law 97–425, 96 Stat. described in paragraph (a) of this airports. These regulatory actions are
2230 (42 U.S.C. 10154). Subpart L also issued section, is appealable by the requestor/ needed because of the adoption of new
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). petitioner on the question as to whether or revised criteria, or because of changes
Subpart M also issued under sec. 184 (42 the request and/or petition should have occurring in the National Airspace
U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 been granted. System, such as the commissioning of
U.S.C. 2239). Appendix A also issued under
sec. 6, Public Law 91–550, 84 Stat. 1473 (42 (d) An order granting a petition to new navigational facilities, adding new
U.S.C. 2135). intervene, and/or request for hearing, or obstacles, or changing air traffic
granting a request for access to the requirements. These changes are
■ 2. In § 2.4, a definition of Potential information described in paragraph (a) designed to provide safe and efficient
party is added in alphabetical order to of this section, is appealable by a party use of the navigable airspace and to
read as follows: other than the requestor/petitioner on promote safe flight operations under
the question as to: instrument flight rules at the affected
§ 2.4 Definitions.
airports.
* * * * * (1) Whether the request for hearing or
Potential party means any person who petition to intervene should have been DATES: This rule is effective March 10,
has requested, or who may intend to wholly denied; or 2008. The compliance date for each
request, a hearing or petition to SIAP, associated Takeoff Minimums,
(2) Whether the request for access to and ODP is specified in the amendatory
intervene in a hearing under 10 CFR the information described in paragraph
part 2, other than hearings conducted provisions.
(a)(3) of this section should have been The incorporation by reference of
under Subparts J and M of 10 CFR part
denied in whole or in part. However, certain publications listed in the
2.
such a question with respect to SGI may regulations listed in the regulations is
* * * * * only be appealed by the NRC staff, and approved by the Director of the Federal
■ 3. Section 2.311 is revised to read as such a question with respect to SUNSI Register as of March 10, 2008.
follows: may be appealed only by the NRC staff ADDRESSES: Availability of matters
§ 2.311 Interlocutory review of rulings on or by a party whose interest incorporated by reference in the
requests for hearings/petitions to intervene, independent of the proceeding would be amendment is as follows:
selection of hearing procedures, and harmed by the release of the For Examination—
requests by potential parties for access to information. 1. FAA Rules Docket, FAA
sensitive unclassified non-safeguards Headquarters Building, 800
(e) An order selecting a hearing
information and safeguards information. Independence Avenue, SW.,
procedure may be appealed by any party
(a) An order of the presiding officer, on the question as to whether the Washington, DC 20591;
or if a presiding officer has not been 2. The FAA Regional Office of the
selection of the particular hearing
designated, of the Chief Administrative region in which the affected airport is
procedures was in clear contravention
Judge, or if he or she is unavailable, of located;
of the criteria set forth in § 2.310. The 3. The National Flight Procedures
another administrative judge, or of an
appeal must be filed with the Office, 6500 South MacArthur Blvd.,
administrative law judge with
Commission no later than ten (10) days Oklahoma City, OK 73169; or
jurisdiction under § 2.318(a), may be
appealed to the Commission with after issuance of the order selecting a 4. The National Archives and Records
respect to: hearing procedure. Administration (NARA). For
(1) A request for hearing; Dated at Rockville, Maryland, this 4th day information on the availability of this
(2) A petition to intervene; or of March 2008. material at NARA, call 202–741–6030,
(3) A request for access to sensitive For the Nuclear Regulatory Commission. or go to: http://www.archives.gov/
ebenthall on PRODPC61 with RULES

unclassified non-safeguards information federal_register/


Annette L. Vietti-Cook,
(SUNSI), including, but not limited to, code_or_federal_regulations/
proprietary, confidential commercial, Secretary of the Commission. ibr_locations.html.
and security-related information, and [FR Doc. E8–4768 Filed 3–7–08; 8:45 am] Availability—All SIAPs and Takeoff
Safeguards Information (SGI). An appeal BILLING CODE 7590–01–P Minimums and ODPs are available

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