E8-3824. Delegated Authority To Order Use of Procedures for Access to Certain Sensitive Unclassified Information

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Nuclear Regulatory Commission (NRC or Commission) is amending its rules of practice to delegate authority to the Office of the Secretary of the Commission to issue orders requiring the use of certain procedures for access to sensitive unclassified information in adjudicatory proceedings. The NRC is also making available final procedures that would allow potential parties to NRC adjudications to gain access to Sensitive Unclassified Non-Safeguards Information (SUNSI) or Safeguards Information (SGI).

DATES:

The effective date of the final rule is March 31, 2008. The implementation date of the procedures is March 31, 2008. If the procedures will be applied in a particular proceeding, the Commission will include them by order in the associated Federal Register notice of hearing or a notice of opportunity for hearing.

FOR FURTHER INFORMATION CONTACT:

Tison Campbell, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone [phone], e-mail [e-mail].

Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/​reading-rm/​adams.html. From this site, the public can gain entry into the NRC's Agencywide Document 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 NRC PDR Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to [e-mail].

The ADAMS accession number for the procedures is ML080380626; the ADAMS accession number for the response to public comments is ML080380633.

SUPPLEMENTARY INFORMATION:

I. Background

II. Discussion

III. Voluntary Consensus Standards

IV. Environmental Impact: Categorical Exclusion

V. Paperwork Reduction Act Statement

VI. Regulatory Analysis

VII. Backfit Analysis

VIII. 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 have requested or 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 SUNSI (including, but not limited to, proprietary, confidential commercial, and security-related information) or SGI (as defined in 10 CFR 73.2) to meet Commission requirements for hearing requests or for intervention. On August 6, 2007, the Commission announced the availability for comment of procedures to allow potential parties to submit information requests and enter into protective agreements prior to becoming a party to a proceeding so that those who demonstrate a legitimate need for SUNSI or SGI can receive relevant documents to prepare a valid contention. 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). After considering public comments, the Commission has finalized the procedures and made them available on the NRC Web site. See, ADAMS Accession No. ML080380626. The Commission has also documented its response to public comments received and made that response available on the NRC Web site. See, ADAMS Accession No. ML080380633.

The procedures reflect the longstanding practice of NRC staff access determinations in the first instance, subject to review by a presiding officer if contested. The procedures also describe how the public will be informed of this process. The procedures address:

(1) When and where to submit requests for access to SUNSI and SGI that is possessed by the NRC;^[1]

(2) Who will assess initially whether the proposed recipient has shown a need for SUNSI (or need to know for SGI) and a likelihood of establishing standing;

(3) Who will decide initially whether the proposed recipient is qualified (i.e., trustworthy and reliable) to receive SGI;

(4) Use of nondisclosure affidavits/agreements and protective orders; and

(5) Time periods for making standing, need, and access determinations, producing documents, submitting contentions, and seeking review of determinations.

These procedures also include a “pre-clearance” process that would permit a potential party who may seek access to SGI to initiate the necessary background check in advance of a notice of opportunity for hearing.

II. Discussion

As explained in the background information that accompanies the procedures, the use of the procedures in a particular proceeding will be established by order in a Federal Register notice of hearing or a notice of opportunity for hearing. The issuance of these orders as part of such Federal Register notices is intended to emphasize and make clear that the procedures will be binding on the presiding officer or administrative judge or officer assigned, and on the parties and the potential parties to that proceeding. Having considered public comments and revised the procedures in response, the Commission expects that these final procedures will be appropriate for use in many proceedings. Therefore, for greater administrative efficiency, the Commission concludes that authority to issue the orders requiring the use of the procedures in individual proceedings may be delegated to the Office of the Secretary of the Commission (Secretary). To clarify that the Secretary's authority includes the authority to issue such orders on the Commission's behalf, the Commission is adding a provision to that effect in 10 CFR 2.307 of the agency's rules of practice. Because this delegation is a rule of agency organization, procedure, or practice within the meaning of 5 U.S.C. 553, the Commission has determined that notice and public comment on this amendment is not necessary.

The rule amends 10 CFR 2.307, a provision which concerns extension and reduction of time limits. The Commission is revising the title of the section to refer also to “delegated authority to order use of procedures for access by potential parties to certain sensitive unclassified information.” Second, the Commission is adding a new paragraph (c) to that provision. This new paragraph delegates authority to the Secretary “to issue orders establishing procedures and timelines for submitting and resolving requests for” SUNSI or SGI. The provision further states that this delegated authority applies in circumstances when potential parties may deem it necessary to obtain access to SUNSI or SGI in order to meet Commission requirements for intervention. This language is intended to mirror the limited scope and purpose of the final access procedures, as identified in the procedures and in the accompanying Background Information of this document. The delegated authority also extends to limited case-specific modifications to those procedures if the Secretary concludes that they are warranted for a particular proceeding. This delegation does not alter or expand the Secretary's existing authority with respect to issuing orders unrelated to requests for access to sensitive unclassified information.

III. 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 delegating authority within the agency as a matter of agency organization and procedure. 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).

IV. Environmental Impact: Categorical Exclusion

The NRC has determined that this rule 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 rule.

V. Paperwork Reduction Act Statement

This 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.

VI. Regulatory Analysis

A regulatory analysis has not been prepared for this rule because it applies to the delegation of authority within the NRC and does not involve any provisions that would impose any economic burdens on licensees or the public.

VII. Backfit Analysis

The NRC has determined that the backfit rules (§§ 50.109, 70.76, 72.62, or 76.76) do not apply to this final rule because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis is not required.

VIII. 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
• Antitrust
• 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

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

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, Pub. L. 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), Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)), sec. 102, Pub. L. 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 Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161b, 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 Pub. L. 101-410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 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, Pub. L. 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, Pub. L. 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, Pub. L. 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, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135).

2. In § 2.307, the heading is amended and a new paragraph (c) is added to read as follows:

§ 2.307

Extension and reduction of time limits; delegated authority to order use of procedures for access by potential parties to certain sensitive unclassified information.

* * * * *

(c) In circumstances where, in order to meet Commission requirements for intervention, potential parties may deem it necessary to obtain access to safeguards information (as defined in § 73.2 of this chapter) or to sensitive unclassified non-safeguards information, the Secretary is delegated authority to issue orders establishing procedures and timelines for submitting and resolving requests for this information.

Dated at Rockville, Maryland, this 21st day of February 2008.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.

Footnotes

1.  The proposed procedures do not address information possessed solely by a licensee or applicant.