Interlocutory Review of Rulings on Requests by Potential Parties for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information, 32018-32021 [07-2884]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 72, Number 111 (Monday, June 11, 2007)]
[Proposed Rules]
[Pages 32018-32021]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-2884]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 72, No. 111 / Monday, June 11, 2007 / 
Proposed Rules

[[Page 32018]]



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: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is 
proposing to amend 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 comment period expires on July 11, 2007. Comments received 
after this date will be considered if it is practical to do so, but the 
NRC is able to ensure consideration only for comments received on or 
before this date.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number RIN 3150-AI08 in the subject line 
of your comments. Comments on rulemakings submitted in writing or in 
electronic form will be made available for public inspection. Because 
your comments will not be edited to remove any identifying or contact 
information, the NRC cautions you against including personal 
information such as social security numbers and birth dates in your 
submission.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: SECY@nrc.gov. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via NRC's 
rulemaking Web site at https://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
cag@nrc.gov. Comments can also be submitted via the Federal eRulemaking 
Portal https://www.regulations.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone 
(301) 415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    Publicly available documents related to this rulemaking 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. Selected documents, including comments, 
may be viewed and downloaded electronically via the NRC rulemaking Web 
site at https://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at NRC's Electronic 
Reading Room at https://www.nrc.gov/reading-rm/adams.html. From this 
site, the public can gain entry into 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 
pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Patrick Moulding, Attorney, Office of 
the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone (301) 415-2549, e-mail pam3@nrc.gov.

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. Plain Language

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 need 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 NRC staff has developed, and the Commission has approved for public 
comment,\1\ draft access procedures to address receipt of such 
information by potential parties. In addition, the Commission is 
completing a final rulemaking to update its regulations governing 
access to and protection of SGI.\2\ Development of the draft procedures 
for access by potential parties and of the SGI rule is separate from, 
and not a part of, the proposed rulemaking to amend 10 CFR 2.311, which 
is the subject of this document. The proposed revisions to 10 CFR 2.311 
would provide for interlocutory review by the Commission of access 
determinations made pursuant to those procedures, but Sec.  2.311 would 
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\ The NRC staff intends to make those draft access procedures 
available for public comment as soon as practicable to coincide with 
the publication of this proposed rule.
    \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

[[Page 32019]]

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 proposed 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. It is anticipated that access to SGI 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 to establish trustworthiness and reliability 
(including fingerprinting for a criminal history records check and a 
credit check release). Because such background checks may take up to 
several months to complete, the Commission has also approved 
development of 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 thus minimize delays in the 
preparation (and, if appropriate, adjudication) of security-related 
contentions. The NRC staff intends to propose such a process in 
conjunction with the aforementioned draft access procedures that will 
be made available for public comment.
    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 (i) A need 
for SUNSI or (ii) ``need to know'' for SGI 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 staff would briefly state the reasons for the denial. 
The requester could challenge the staff's adverse determination or 
denial of access. Depending on the applicable access procedures and 
provisions of the SGI rule (once 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 pursuant to 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 such information at this stage of 
a proceeding would initially be made to and decided by the NRC staff. 
However, that feature of the draft access procedures would not apply 
to: (1) License transfer adjudications (for which the Commission has 
already chosen a different procedural approach),\3\ and (2) the pending 
High Level Waste (HLW) Pre-License Application proceeding (PAPO), or 
any subsequent adjudication regarding the Department of Energy's 
expected application for a construction authorization for a HLW 
repository.\4\
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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 procedure 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.
    \4\ The Commission has directed that the draft procedures for 
access to SUNSI and SGI not apply to the pending PAPO proceeding or 
the subsequent proceeding on the HLW repository.
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    It is expected that the draft access procedures also would include 
time periods for submission of requests for access, for staff 
determinations, for filing of contentions, and for challenges to appeal 
adverse staff determinations. These periods would be intended to 
minimize the potential for delay in the admission of contentions.
    As evident in the discussion that follows, this proposed rulemaking 
deals with interlocutory review (review permitted immediately rather 
than at the end of a proceeding) by the Commission of an order on such 
an ``appeal.'' The proposed amendments to 10 CFR 2.311 recognize the 
importance 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 could 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 proposing 
changes to the rules of practice in Part 2 as described below.
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    \5\ The term ``Atomic Safety and Licensing Board'' would 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 would be 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 pursuant to Subparts J and M of Part 2.
    This proposed 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 part 2.\6\ Similarly, the 
proposed definition by its terms, does not apply to a proceeding 
conducted pursuant to Subpart M (``Procedures for Hearings on License 
Transfer Applications'').
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    \6\ See discussion in Section I regarding the inapplicability of 
the interlocutory appeal process that is the subject of this 
proposed 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 proposed Sec.  2.311 would allow potential parties (persons who 
may intend to request a hearing or petition for leave to intervene in a 
hearing), 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 these 
requesters or petitioners an avenue for promptly obtaining Commission 
review of such determinations, 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 proposed changes to Sec.  2.311 are discussed below.

[[Page 32020]]

    The proposed rule would amend 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) 
would be further modified. First, language would be 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 pursuant to Sec.  2.318(a). This proposed change 
recognizes that a presiding officer might not have been designated at 
the stage in which a potential party is seeking interlocutory review by 
the Commission. Also, paragraph (a) would be divided into paragraphs 
(a)(1), (a)(2) and (a)(3), and a new paragraph (b). Paragraphs (a)(1) 
and (a)(2) would 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) would add to these categories an order 
relating to a request for access to SUNSI (including, but not limited 
to, proprietary, confidential commercial, and security-related 
information) and SGI. Access to this information could be necessary for 
a potential party to determine whether to request a hearing or petition 
to intervene or to support such requests. This paragraph would also add 
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 draft 
access procedures discussed in Section I above 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, would be redesignated as paragraph 
(b).
    In light of the above modifications, current paragraphs (b), (c), 
and (d) would be 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), would be 
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 
would be 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 would be 
otherwise unchanged.

III. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, Pub. 
L. 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 proposing to permit 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).

IV. 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.

V. 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.

VI. 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 would 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 (Sec. Sec.  50.109, 
70.76, 72.62, or 76.76) do not apply to this proposed rule because 
these amendments would not involve any provisions that would impose 
backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis 
is not required.

VIII. Plain Language

    The Presidential memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing,'' published on June 10, 1998 (63 FR 
31883) directed that the Government's documents be in plain, clear, and 
accessible language. The NRC requests comments on the proposed rule 
specifically with respect to the clarity and effectiveness of the 
language used. Comments should be sent to the NRC as explained in the 
ADDRESSES caption of this document.

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. 
553; the NRC is proposing to adopt the following amendments to 10 CFR 
part 2.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
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

[[Page 32021]]

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 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 pursuant to Subparts 
J and M of Part 2.
* * * * *
    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 procedure, 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 pursuant to 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 in accordance with 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 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/petition 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.
    (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 5th day of June 2007.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 07-2884 Filed 6-8-07; 8:45 am]
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