[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Notices]
[Pages 63672-63676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26486]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 70-7022; NRC-2011-0236]
Notice of Acceptance of Application for Special Nuclear Materials
License From Passport Systems, Inc., Opportunity To Request a Hearing,
and Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information for Contention Preparation
AGENCY: Nuclear Regulatory Commission.
ACTION: Notice of license application, opportunity to request a
hearing, and Order Imposing Procedures for Access to Sensitive
Unclassified Non-Safeguards Information for Contention Preparation.
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DATES: Requests for a hearing or Leave to Intervene must be filed by
December 12, 2011. Any potential party as defined in Title 10 of the
Code of Federal Regulations (10 CFR) 2.4 who believes access to
Sensitive Unclassified Non-Safeguards Information (SUNSI) information
is necessary to respond to this notice must request document access by
October 24, 2011.
ADDRESSES: You can access publicly available documents related to this
document using the following methods:
NRC's Public Document Room (PDR): The public may examine
and have copied, for a fee, publicly available documents at the NRC's
PDR, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland 20852.
[[Page 63673]]
NRC's Agencywide Documents Access and Management System
(ADAMS): Publicly available documents created or received at the NRC
are available online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS,
which provides text and image files of the 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's PDR reference staff
at 1-800-397-4209, 301-415-4737, or by e-mail to [email protected].
Federal Rulemaking Web Site: Public comments and
supporting materials related to this final rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2011-0236. Address
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: [email protected].
FOR FURTHER INFORMATION CONTACT: Richard Thompson, Project Manager,
Fuel Manufacturing Branch, Division of Fuel Cycle Safety and
Safeguards, Office of Nuclear Material Safety and Safeguards, U.S.
Nuclear Regulatory Commission, 11555 Rockville Pike, EBB2-C40M,
Rockville, Maryland 20852; telephone: 301-492-3220; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
The U.S. Nuclear Regulatory Commission (NRC or the Commission) has
accepted for detailed technical review an application for a new license
for the possession and use of special nuclear material (SNM), submitted
by Passport Systems, Inc. (Passport or the Applicant). The license
would authorize performance testing of radiation detection systems for
locating SNM, under a project sponsored by the Domestic Nuclear
Detection Office (DNDO) of the U.S. Department of Homeland Security
(DHS). The Applicant requested the new license for a period of 10
years. This license application, if approved, would authorize Passport
to possess and use special nuclear materials under 10 CFR Part 70,
``Domestic Licensing of Special Nuclear Material.''
II. Discussion
In its application, dated November 5, 2010, Passport requested a
license to possess and use SNM to conduct tests of new technology for
use in detection systems. The SNM would be used as test objects for
concept demonstrations and characterization testing at the Passport
facilities. Following an administrative review, the NRC requested the
Applicant to revise its application to include elements essential to
conducting a detailed technical review. The Applicant submitted a
revised license application, dated February 8, 2011. By letter dated
March 1, 2011, the NRC staff found the revised license application
acceptable to begin a detailed technical review. The application has
been docketed in Docket No. 70-7022.
If the NRC approves the license application, the basis for approval
will be documented in a Safety Evaluation Report (SER) supporting the
issuance of a new NRC license. The SER would contain the findings
required by the Atomic Energy Act of 1954, as amended (the Act), and
the NRC's regulations, for issuing an SNM license. The SER would also
include a determination of the need to complete an environmental
assessment based on the proposed action.
III. Opportunity To Request a Hearing; Petitions for Leave To Intervene
Requirements for submitting hearing requests and petitions for
Leave to Intervene are found in 10 CFR 2.309, ``Hearing Requests,
Petitions to Intervene, Requirements for Standing, and Contentions.''
Interested persons should consult 10 CFR 2.309, which is available at
the NRC's PDR, located at One White Flint North, 11555 Rockville Pike,
Room O1-F21, Rockville, MD 20852. You may also call the PDR at 1-800-
397-4209 or 301-415-4737. The NRC regulations are also accessible
electronically from the NRC's Web site at http://www.nrc.gov.
Any person whose interest may be affected by this proceeding, and
who desires to participate as a party in the proceeding must file a
written petition for Leave to Intervene. As required by 10 CFR 2.309, a
petition for leave to intervene shall set forth with particularity the
interest of the petitioner in the proceeding and how that interest may
be affected by the results of the proceeding. The petition must provide
the name, address, and telephone number of the petitioner; and
specifically explain the reasons why intervention should be permitted
with particular reference to the following factors: (1) The nature of
the petitioner's right under the Act to be made a party to the
proceeding; (2) the nature and extent of the petitioner's property,
financial, or other interest in the proceeding; and (3) the possible
effect of any order that may be entered in the proceeding on the
petitioner's interest.
A petition for Leave to Intervene must also include a specification
of the contentions that the petitioner seeks to have litigated in the
hearing. For each contention, the petitioner must provide a specific
statement of the issue of law or fact to be raised or controverted, as
well as a brief explanation of the basis for the contention.
Additionally, the petitioner must demonstrate that the issue raised by
each contention is within the scope of the proceeding, and is material
to the findings that NRC must make to support the granting of a license
in response to the application. The petition must also include a
concise statement of the alleged facts or expert opinions which support
the position of the petitioner, and on which the petitioner intends to
rely at the hearing--together with references to the specific sources
and documents on which the petitioner intends to rely. Finally, the
petition must provide sufficient information to show that a genuine
dispute exists with the applicant on a material issue of law or fact,
including references to specific portions of the license application
that the petitioner disputes and the supporting reasons for each
dispute, or, if the petitioner believes that the license application
fails to contain information on a relevant matter as required by law,
the identification of each failure, and the supporting reasons for the
petitioner's belief. Each contention must be one that, if proven, would
entitle the petitioner to relief.
Those permitted to intervene become parties to the proceeding,
subject to any limitations in the order granting Leave to Intervene,
and have the opportunity to participate fully in the conduct of the
hearing with respect to resolution of that person's admitted
contentions, including the opportunity to present evidence and to
submit a cross-examination plan for cross-examination of witnesses,
consistent with NRC's regulations, policies, and procedures. The Atomic
Safety and Licensing Board (the Licensing Board) will set the time and
place for any pre-hearing conferences and evidentiary hearings, and the
appropriate notices will be provided.
Petitions for leave to intervene must be submitted no later than 60
days from October 13, 2011. Non-timely petitions for Leave to Intervene
and contentions, amended petitions, and supplemental petitions will not
be entertained, absent a determination by the Commission, the Licensing
Board or a Presiding Officer that the petition should be granted and/or
the contentions should be admitted based upon a balancing of the
factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
[[Page 63674]]
A State, county, municipality, Federally recognized Indian Tribe,
or agencies thereof, may submit a petition to the Commission to
participate as a party under 10 CFR 2.309(d)(2). The petition should
state the nature and extent of the petitioner's interest in the
proceeding. The petition should be submitted to the Commission by
December 12, 2011. The petition must be filed in accordance with the
filing instructions in Section IV of this document, and should meet the
requirements for petitions for Leave to Intervene set forth in this
section, except that State and Federally recognized Indian tribes do
not need to address the standing requirements in 10 CFR 2.309(d)(1) if
the facility is located within its boundaries. The entities listed
above could also seek to participate in a hearing as a non-party,
pursuant to 10 CFR 2.315(c).
Any person who does not wish, or is not qualified, to become a
party to this proceeding may request permission to make a limited
appearance pursuant to the provisions of 10 CFR 2.315(a). A person
making a limited appearance may make an oral or written statement of
position on the issues, but may not otherwise participate in the
proceeding. A limited appearance may be made at any session of the
hearing or at any pre-hearing conference, subject to such limits and
conditions as may be imposed by the Licensing Board. Persons desiring
to make a limited appearance are requested to inform the Secretary of
the Commission by December 12, 2011.
IV. Electronic Submissions (E-Filing)
All documents filed in NRC's adjudicatory proceedings, including a
request for hearing, a petition for Leave to Intervene, any motion or
other document filed in the proceeding prior to the submission of a
request for hearing or petition to intervene, and any document filed by
interested governmental entities participating under 10 CFR 2.315(c),
must be filed in accordance with the NRC E-Filing rule (72 FR 49139,
August 28, 2007). The E-Filing process requires participants to submit
and serve all adjudicatory documents over the Internet, or in some
cases, to mail copies on electronic storage media. Participants may not
submit paper copies of their filings unless they seek an exemption in
accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least
ten (10) days prior to the filing deadline, the participant should
contact the Office of the Secretary by e-mail at
[email protected], or by telephone at 301-415-1677, to request (1)
a digital ID certificate, which allows the participant (or its counsel
or representative) to digitally sign documents and access the E-
Submittal server for any proceeding in which it is participating; and
(2) advise the Secretary that the participant will be submitting a
request or petition for hearing (even in instances in which the
participant, or its counsel or representative, already holds an NRC-
issued digital ID certificate). Based upon this information, the
Secretary will establish an electronic docket for the hearing in this
proceeding if the Secretary has not already established an electronic
docket.
Information about applying for a digital ID certificate is
available on NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing
the E-Submittal server are detailed in NRC's, ``Guidance for Electronic
Submission,'' which is available on the agency's public Web site at
http://www.nrc.gov/site-help/e-submittals.html. Participants may
attempt to use other software not listed on the Web site, but should
note that the NRC's E-Filing system does not support unlisted software;
and the NRC's Meta System Help Desk will not be able to offer
assistance in using unlisted software.
If a participant is electronically submitting a document to the NRC
in accordance with the E-Filing rule, the participant must file the
document using the NRC's online, Web-based submission form. In order to
serve documents through EIE, users will be required to install a Web
browser plug-in from the NRC Web site. Further information on the Web-
based submission form, including the installation of the Web browser
plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.
Once a participant has obtained a digital ID certificate and a
docket has been created, the participant can then submit a request for
hearing or petition for leave to intervene. Submissions should be in
Portable Document Format (PDF) in accordance with NRC guidance
available on the NRC public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the
documents are submitted through the NRC's E-Filing system. To be
timely, an electronic filing must be submitted to the E-Filing system
no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of
a transmission, the E-Filing system time-stamps the document and sends
the submitter an e-mail notice confirming receipt of the document. The
E-Filing system also distributes an e-mail notice that provides access
to the document to the NRC Office of the General Counsel and any others
who have advised the Office of the Secretary that they wish to
participate in the proceeding, so that the filer need not serve the
documents on those participants separately. Therefore, applicants and
other participants (or their counsel or representative) must apply for
and receive a digital ID certificate before a hearing request/petition
to intervene is filed so that they can obtain access to the document
via the E-Filing system.
A person filing electronically using the agency's adjudicatory E-
Filing system may seek assistance by contacting the NRC Meta System
Help Desk through the ``Contact Us'' link located on the NRC Web site
at http://www.nrc.gov/site-help/e-submittals.html, by e-mail at
[email protected], or by a toll-free call at (866) 672-7640. The
NRC Meta System Help Desk is available between 8 a.m. and 8 p.m.,
Eastern Time, Monday through Friday, excluding government holidays.
Participants who believe that they have a good cause for not
submitting documents electronically must file an exemption request, in
accordance with 10 CFR 2.302(g), with their initial paper filing
requesting authorization to continue to submit documents in paper
format. Such filings must be submitted by: (1) First class mail
addressed to the Office of the Secretary of the Commission, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemaking and Adjudications Staff; or (2) courier, express mail, or
expedited delivery service to the Office of the Secretary, Sixteenth
Floor, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland, 20852, Attention: Rulemaking and Adjudications Staff.
Participants filing a document in this manner are responsible for
serving the document on all other participants. Filing is considered
complete by first-class mail as of the time of deposit in the mail, or
by courier, express mail, or expedited delivery service upon depositing
the document with the provider of the service. A presiding officer,
having granted an exemption request from using E-Filing, may require a
participant or party to use E-Filing if the presiding officer
subsequently determines that the reason for granting the exemption from
use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in
NRC's
[[Page 63675]]
electronic hearing docket, which is available to the public at http://ehd1.nrc.gov/EHD/, unless excluded pursuant to an order of the
Commission or the presiding officer. Participants are requested not to
include personal privacy information, such as social security numbers,
home addresses, or home telephone numbers in their filings, unless an
NRC regulation or other law requires submission of such information.
With respect to copyrighted works, except for limited excerpts that
serve the purpose of the adjudicatory filings and would constitute a
Fair Use application, participants are requested not to include
copyrighted materials in their submission.
Order Imposing Procedures for Access to Sensitive Unclassified Non-
Safeguards Information (SUNSI) for Contention Preparation
A. This Order contains instructions regarding how potential parties
to this proceeding may request access to documents containing SUNSI.
B. Within 10 days after publication of this Notice of Acceptance
and Opportunity to Request a Hearing, any potential party who believes
access to SUNSI is necessary to respond to this notice may request such
access. A ``potential party'' is any person who intends to participate
as a party by demonstrating standing and filing an admissible
contention under 10 CFR 2.309. Requests for access to SUNSI submitted
later than 10 days after publication will not be considered, absent a
showing of good cause for the late filing addressing why the request
could not have been filed earlier.
C. The requester shall submit a letter requesting permission to
access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemakings and
Adjudications Staff; and provide a copy to the Associate General
Counsel for Hearings, Enforcement and Administration, Office of the
General Counsel, Washington, DC 20555-0001. The expedited delivery or
courier mail address for both offices is: U.S. Nuclear Regulatory
Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail
address for the Office of the Secretary and the Office of the General
Counsel are [email protected] and [email protected],
respectively.\1\ The request must include the following information:
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\1\ While a request for Hearing or Petition to Intervene in this
proceeding must comply with the filing requirements of the NRC's
``E-Filing Rule,'' the initial request to access SUNSI under these
procedures should be submitted as described in this paragraph.
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(1) A description of the licensing action with a citation to this
Federal Register notice;
(2) The name and address of the potential party and a description
of the potential party's particularized interest that could be harmed
by the action identified in C.(1);
(3) The identity of the individual or entity requesting access to
SUNSI and the requester's basis for the need for the information in
order to meaningfully participate in this adjudicatory proceeding. In
particular, the request must explain why publicly-available versions of
the information requested would not be sufficient to provide the basis
and specificity for a proffered contention;
D. Based on an evaluation of the information submitted under
paragraph C.(3), the NRC staff will determine within 10 days of receipt
of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely
to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to
SUNSI.
E. If the NRC staff determines that the requestor satisfies both
D.(1) and D.(2) above, the NRC staff will notify the requestor in
writing that access to SUNSI has been granted. The written notification
will contain instructions on how the requestor may obtain copies of the
requested documents, and any other conditions that may apply to access
to those documents. These conditions may include, but are not limited
to, the signing of a Non-Disclosure Agreement or Affidavit, or
Protective Order \2\ setting forth terms and conditions to prevent the
unauthorized or inadvertent disclosure of SUNSI by each individual who
will be granted access to SUNSI.
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\2\ Any motion for Protective Order or draft Non-Disclosure
Affidavit or Agreement for SUNSI must be filed with the presiding
officer or the Chief Administrative Judge, if the presiding officer
has not yet been designated, within 30 days of the deadline for the
receipt of the written access request.
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F. Filing of Contentions. Any contentions in these proceedings that
are based upon the information received as a result of the request made
for SUNSI must be filed by the requestor no later than 25 days after
the requestor is granted access to that information. However, if more
than 25 days remain between the date the petitioner is granted access
to the information and the deadline for filing all other contentions
(as established in the Notice of Hearing or Opportunity for Hearing),
the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC's
staff, either after a determination on standing and need for access or
after a determination on trustworthiness and reliability, the NRC's
staff shall immediately notify the requestor in writing, briefly
stating the reason(s) for the denial.
(2) The requester may challenge the NRC staff's adverse
determination by filing a challenge within 5 days of receipt of that
determination with: (a) The presiding officer designated in this
proceeding; (b) if no presiding officer has been appointed, the Chief
Administrative Judge, or if he or she is unavailable, another
administrative judge, or an administrative law judge with jurisdiction
pursuant to 10 CFR 2.318(a); or (c) if another officer has been
designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requester may
challenge an NRC staff's determination granting access to SUNSI whose
release would harm that party's interest independent of the proceeding.
Such a challenge must be filed with the Chief Administrative Judge
within 5 days of the notification by the NRC staff of its grant of
access.
If challenges to the NRC staff's determinations are filed, these
procedures give way to the normal process for litigating disputes
concerning access to information. The availability of interlocutory
review by the Commission of orders ruling on such NRC staff's
determinations (whether granting or denying access) is governed by 10
CFR 2.311.\3\
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\3\ Requesters should note that the filing requirements of the
NRC's E-Filing Rule (72 FR 49139; August 28, 2007) apply to appeals
of NRC staff's determinations (because they must be served on a
presiding officer or the Commission, as applicable), but not to the
initial SUNSI request submitted to the NRC staff under these
procedures.
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I. The Commission expects that the NRC staff and presiding officers
(and any other reviewing officers) will consider and resolve requests
for access to SUNSI, and motions for protective orders, in a timely
fashion in order to minimize unnecessary delays in identifying those
petitioners who have standing and who have propounded contentions
meeting the specificity and basis requirements in 10 CFR Part 2.
Attachment 1 to this Order summarizes the general target schedule for
processing and resolving requests under these procedures.
It is so ordered:
[[Page 63676]]
Dated at Rockville, Maryland, this 6th day of October, 2011.
For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
Attachment 1--General Target Schedule for Processing and Resolving
Requests for Access to Sensitive Unclassified Non-Safeguards Information
in This Proceeding
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Day Event/Activity
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0................................. Publication of Federal Register
notice of hearing and opportunity
to petition for leave to intervene,
including order with instructions
for access requests.
10................................ Deadline for submitting requests for
access to Sensitive Unclassified
Non-Safeguards Information (SUNSI)
with information: supporting the
standing of a potential party
identified by name and address;
describing the need for the
information in order for the
potential party to participate
meaningfully in an adjudicatory
proceeding.
60................................ Deadline for submitting petition for
intervention containing: (i)
Demonstration of standing; (ii) all
contentions whose formulation does
not require access to SUNSI (+25
Answers to petition for
intervention; +7 petitioner/
requestor reply).
20................................ Nuclear Regulatory Commission (NRC)
staff informs the requester of the
staff's determination whether the
request for access provides a
reasonable basis to believe
standing can be established and
shows need for SUNSI. (NRC staff
also informs any party to the
proceeding whose interest
independent of the proceeding would
be harmed by the release of the
information.) If NRC staff makes
the finding of need for SUNSI and
likelihood of standing, NRC staff
begins document processing
(preparation of redactions or
review of redacted documents).
25................................ If NRC staff finds no ``need'' or no
likelihood of standing, the
deadline for petitioner/requester
to file a motion seeking a ruling
to reverse the NRC staff's denial
of access; NRC staff files copy of
access determination with the
presiding officer (or Chief
Administrative Judge or other
designated officer, as
appropriate). If NRC staff finds
``need'' for SUNSI, the deadline
for any party to the proceeding
whose interest independent of the
proceeding would be harmed by the
release of the information to file
a motion seeking a ruling to
reverse the NRC staff's grant of
access.
30................................ Deadline for NRC staff reply to
motions to reverse NRC staff
determination(s).
40................................ (Receipt +30) If NRC staff finds
standing and need for SUNSI,
deadline for NRC staff to complete
information processing and file
motion for Protective Order and
draft Non-Disclosure Affidavit.
Deadline for applicant/licensee to
file Non-Disclosure Agreement for
SUNSI.
A................................. If access granted: Issuance of
presiding officer or other
designated officer decision on
motion for protective order for
access to sensitive information
(including schedule for providing
access and submission of
contentions) or decision reversing
a final adverse determination by
the NRC staff.
A + 3............................. Deadline for filing executed Non-
Disclosure Affidavits. Access
provided to SUNSI consistent with
decision issuing the protective
order.
A + 28............................ Deadline for submission of
contentions whose development
depends upon access to SUNSI.
However, if more than 25 days
remain between the petitioner's
receipt of (or access to) the
information and the deadline for
filing all other contentions (as
established in the notice of
hearing or opportunity for
hearing), the petitioner may file
its SUNSI contentions by that later
deadline.
A + 53............................ (Contention receipt +25) Answers to
contentions whose development
depends upon access to SUNSI.
A + 60............................ (Answer receipt +7) Petitioner/
Intervenor reply to answers.
>A + 60........................... Decision on contention admission.
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[FR Doc. 2011-26486 Filed 10-12-11; 8:45 am]
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