Changes to Adjudicatory Process

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: April 16, 2001 (Volume 66, Number 73)]
[Proposed Rules]
[Page 19609-19671]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap01-15]

[[Page 19609]]

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Part II

Nuclear Regulatory Commission

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10 CFR Part 1, et al.

Changes to Adjudicatory Process; Proposed Rule

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 1, 2, 50, 51, 52, 54, 60, 70, 73, 75, 76, and 110

RIN 3150-AG49

Changes to Adjudicatory Process

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
its regulations concerning its rules of practice to make the NRC's
hearing process more effective and efficient. The proposed rule would
fashion hearing procedures that are tailored to the differing types of
licensing and regulatory activities the NRC conducts and would better
focus the limited resources of involved parties and the NRC.

DATES: Comments on the proposed rule must be received on or before July
16, 2001. Comments received after this date will be considered if it is
practical to do so. However, the Commission is able to ensure
consideration only for comments received on or before this date.

ADDRESSES: Mail written comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001. ATTN: Rulemakings and
Adjudications Staff.
Hand delivered comments should also be addressed to the Secretary,
U.S. Nuclear Regulatory Commission, and delivered to: 11555 Rockville
Pike, Rockville, MD, between 7:30 am and 4:15 pm Federal workdays.
You may also provide comments via the NRC's interactive rulemaking
website (http://ruleforum.llnl). This site also provides the
availability to upload comments as files (any format), if your web
browser supports that function. For information about the interactive
rulemaking site, contact Ms. Carol Gallagher, (301) 415-5905; e-mail
CAG@nrc.gov.
Certain documents relating to this rulemaking, including comments
received, may be examined at the NRC Public Document Room, 11555
Rockville Pike, Room O1-F21, Rockville, MD. The same documents may also
be viewed and downloaded electronically via the rulemaking website,
http://ruleforum.llnl.gov. Documents created or received at the NRC
after November 1, 1999 are also available electronically at the NRC's
Public Electronic Reading room on the Internet at http://www.nrc.gov/
NRC/ADAMS/index.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. For more
information, contact the NRC Public Document Room (PDR) Reference staff
at 1-800-397-4209, 301-415-4737 or by email to pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Geary S. Mizuno, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone (301) 415-1639, e-mail GSM@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background
A. Policy Statement
B. Reexamination of NRC's Hearing Process
C. Comments on Policy Statement
D. Comments from Hearing Process Workshop
E. Summary and General Questions
(1) Overall Approach for Informal Hearings
(2) Hearing Tracks
(3) Presiding Officer
(4) Discovery
(5) Witnesses, Cross-Examination, and Oral Statements by the
Parties
(6) Time Limitations
(7) Request for Hearing and Contentions
(8) Alternative Dispute Resolution
II. Description and Discussion of the Proposed Rule
A. Overview
B. Specific Proposals and Request for Comment
(1) Subpart C--Sections 2.300-2.347
(2) Subpart G--Sections 2.700-2.712
(3) Subpart J
(4) Subpart K
(5) Subpart L--Sections 2.1200--2.1212
(6) Subpart M
(7) Subpart N--Sections 2.1400--2.1407
III. Plain Language
IV. Voluntary Consensus Standards
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act
VII. Regulatory Analysis
VIII. Regulatory Flexibility Act
IX. Backfit Analysis

I. Background

Among the very first actions taken by the Nuclear Regulatory
Commission following its creation in 1975, was an affirmation of the
fundamental importance it attributes to public participation in the
Commission's adjudicatory process. Public participation, the Commission
said, ``is a vital ingredient to the open and full consideration of
licensing issues and in establishing public confidence in the sound
discharge of the important duties which have been entrusted to us.''
Northern States Power Company (Prairie Island Nuclear Generating Plant,
Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975). However, the form and
formality of the processes provided for public participation have long
been debated, well before the NRC was established and well after the
foregoing statement was made.
The Commission has taken a number of steps in recent years to
reassess its processes to identify ways in which it can conduct its
regulatory activities more effectively. This assessment has extended
across the full range of the NRC's programs, from its oversight and
inspection program to evaluate and assess licensee performance, to its
internal program management activities. One of the cornerstones of the
NRC's regulatory approach has always been ensuring that its review
processes and decisionmaking are open, understandable, and accessible
to all interested parties. Its processes for achieving this goal have
been part of the reassessment as well. Recently, steps have been taken
to expand the opportunities for stakeholder awareness and involvement
in NRC policy and decisionmaking through greater use of public
workshops in rulemaking, inviting stakeholder participation in
Commission meetings, and more extensive use of public meetings with
interested parties on a variety of safety and regulatory matters.
The Commission has had a longstanding concern that the hearing
process associated with licensing and enforcement actions taken by the
NRC is not as effective as it could be. Beginning with case-by-case
actions in 1983, and with a final rule in 1989, the Commission took
steps to move away from the trial-type, adversarial format to resolve
technical disputes with respect to its materials license applications.
Commission experience suggested that in most instances, the use of
formal adjudicatory procedures is not essential to the development of
an adequate hearing record; yet all too frequently their use resulted
in protracted, costly proceedings. These less formal procedures sought
to reduce the burden of litigation costs on applicants and other
participants because of the informal nature of the hearing and to
enhance the role of the presiding officer as a technical fact finder by
giving him or her the primary responsibility for controlling the
development of the hearing record beyond the initial submissions of the
parties. A significant portion of the NRC's proceedings in the past ten
years has been conducted under these informal procedures. Although the
Commission's experience to date indicates that some of the original
objectives have been achieved, there have also been some aspects of the
informal procedures that have continued to prolong the proceeding

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without truly enhancing the decisionmaking process. Given this
experience, and with the potential for new proceedings in the next few
years to consider applications for new facilities, to renew reactor
operating licenses, to reflect restructuring in the electric utility
industry, and to license waste storage facilities, the Commission
concluded it needs to reassess its hearing process to identify
improvements that will result in a better use of all participants'
limited resources. To that end, the Commission recently initiated
several actions related to its hearing processes--development of a
Policy Statement on the hearing process, and a reexamination of the
NRC's hearing process and requirements under the Atomic Energy Act as a
foundation for possible rule changes.

A. Policy Statement

The Commission recently adopted a new Policy Statement that
provides specific guidance for Licensing Boards and presiding officers
on methods to use, when appropriate, for improving the management and
timely completion of proceedings. Statement of Policy on the Conduct of
Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (63 FR 41872; August 5,
1998). The Policy Statement is an extension of the Commission's
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13
NRC 452, 46 FR 28533 (May 21, 1981), which provided guidance to the
Atomic Safety and Licensing Boards (Boards) on methods to improve the
timely conduct of licensing proceedings and ensure that hearings are
fair and produce adequate records that support decisions made by the
NRC.
Among other things, the new Policy Statement urges presiding
officers/boards to establish schedules for deciding issues before them.
It also reminds presiding officers/boards of their authority to set
schedules, resolve discovery disputes, and to take other action
required to regulate the course of the proceedings. Case management by
the presiding officers/boards is an essential element of a fair,
efficient hearing process. The Policy Statement also provides that the
Commission may set milestones for an individual proceeding. If a
presiding officer/licensing board determines that it would miss any
milestone ordered by the Commission by more than 30 days, it is to
provide the Commission with a written explanation of the reasons for
the delay.
The Policy Statement also sets forth the Commission's expectations
of the parties in the proceeding. Parties are expected to adhere to the
time frames set forth by the presiding officers/boards. Petitioners are
reminded, among other things, of their burden to set forth contentions
that meet the standards of 10 CFR 2.714(b)(2), and that contentions are
limited by the nature of the application and the regulations. This
guidance is directed to management and control of adjudicatory
proceedings under the existing Rules of Practice. The guidance did not
address more basic changes to the hearing process itself.

B. Reexamination of NRC's Hearing Process

In late 1998, the NRC Office of the General Counsel (OGC) undertook
a reexamination of the NRC's current adjudicatory practices as
conducted under the Atomic Energy Act of 1954, as amended, and the
NRC's current regulations, as well as a review of the Administrative
Procedure Act (APA) and the practices of other agencies and the federal
courts, with a view to developing options for improving the NRC's
hearing processes. This effort was documented in a Commission paper,
SECY-99-006, January 8, 1999, that was made publicly available.
As part of the analysis of possible approaches, OGC reached the
conclusion that except for a very limited set of hearings--those
associated with the licensing of uranium enrichment facilities--the
Atomic Energy Act did not mandate the use of a ``formal on-the-record''
hearing within the meaning of the APA, 5 U.S.C. 554, 556, and 557, and
that the Commission enjoyed substantial latitude in devising suitable
hearing processes that would accommodate the due process rights of
participants. The key statutory provision, Section 189.a. of the Atomic
Energy Act, declares only that ``a hearing'' (or an opportunity for a
hearing) is required for certain types of agency actions. It does not
state that such hearings are to be on-the-record proceedings. A
detailed discussion of Section 189 and its legislative history can be
found in the Commission's decision in Kerr McGee Corporation (West
Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232 (1982); see also
Advanced Medical Systems, ALAB-929, 31 NRC 271, 279-288 (1990).
As a legal matter, where Congress provides for ``a hearing,'' and
does not specify that the adjudicatory hearings are to be ``on-the-
record,'' or conducted as an adjudication under 5 U.S.C. 554, 556 and
557 of the APA, it is presumed that informal hearings are sufficient.
United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757
(1972), citing Siegel v. AEC, 400 F.2d 778, 785 (D.C.Cir. 1968); United
States v. Florida East Coast Ry., 410 U.S. 224 (1973). In contrast to
informal hearings for which agencies have greater flexibility in
shaping adjudicatory procedures, ``on-the-record'' hearings under the
APA generally resemble adversarial trial-type proceedings with live
presentation of witnesses and cross-examination. The Atomic Energy
Commission (AEC) of the 1950s asserted that formal hearings were what
Congress had intended. At that time, the AEC saw benefits in a highly
formal process, resembling a judicial trial, for deciding applications
to construct and operate nuclear power plants. It was thought that the
panoply of features attending a trial--parties, sworn testimony, and
cross-examination--would lead to a more complete resolution of the
complex issues affecting the public health and safety and would build
public confidence in the AEC's decisions and thus in the safety of
nuclear power plants licensed by the AEC. One study concluded that the
use of formal hearings developed in order to address concerns that the
pressures of promotion by the AEC could have an undue influence on the
AEC's assessment of safety issues. By use of an expanded hearing
process, the Commission could more fully defend the objectivity of its
licensing actions. See William H. Berman and Lee M. Hydeman, The Atomic
Energy Commission and Regulating Nuclear Facilities (1961), reprinted
in Improving the AEC Regulatory Process, Joint Committee on Atomic
Energy, 87th Cong., 1st Sess., Vol. II, at 488 (1961).
The AEC thus took the official position that on-the-record hearings
were not merely permissible under the Atomic Energy Act but required.
AEC Regulatory Problems: Hearings before the Subcommittee on
Legislation, Joint Committee on Atomic Energy, 87th Cong., 2nd Sess. 60
(1962) (Letter of AEC Commissioner Loren K. Olsen). At least two
subsequent statutes contain implications--though no more than that--
that the Congresses that enacted them believed that formal adjudication
was required. These instances, both of which involve clauses beginning
with the word ``notwithstanding,'' are worth examining in some detail
because they form much of the basis for arguments that the 1954 Act
should be read to require on-the-record proceedings.
The first came in 1962, when Congress amended the Atomic Energy Act
to add a new Section 191, authorizing the use of three-member licensing
boards rather than hearing examiners, ``notwithstanding'' certain
provisions of the APA. Because those referenced APA provisions dealt
with

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formal, on-the-record adjudication, the ``notwithstanding'' clause in
the statute could be read (and by some, is read) to imply that, by
1962, Congress viewed the Atomic Energy Act as requiring on-the-record
adjudication. (The crux of the argument is that the ``notwithstanding''
clause would have been unnecessary if on-the-record adjudication were
not mandatory.) However, that very year, as will be discussed below,
the Joint Committee on Atomic Energy restated its belief that formal
adjudication was not required in AEC proceedings.
In 1978, ``notwithstanding'' made its second appearance, but this
time, it was the Atomic Energy Act, rather than the Administrative
Procedure Act, that presented the problem. In that year, Congress
enacted the Nuclear Non-Proliferation Act (NNPA), which provided among
other things for the NRC to establish procedures for ``such public
hearings (on nuclear export licenses) as the Commission deems
appropriate.'' NNPA Sec. 304, 42 U.S.C. 2155a(a). The statute said that
this provision was the exclusive legal basis for any hearings on
nuclear export licenses, adding: ``(N)otwithstanding section 189a. of
the 1954 Act, (this) shall not require the Commission to grant any
person an on-the-record hearing in such a proceeding.'' 42 U.S.C.
2155a(b). The inference can therefore be drawn that by 1978, Congress
thought that without express statutory authorization to use other
hearing procedures, on-the-record formal hearings would be called for
by Section 189 of the Atomic Energy Act.
As a legal matter, the amount of weight given to retrospective
legislative history--that is, one Congress's opinion of what an earlier
Congress intended--depends greatly on the circumstances. While the
Supreme Court recently reiterated that ``(s)ubsequent legislation
declaring the intent of an earlier statute is entitled to great weight
in statutory construction,'' Loving v. United States, 517 U.S. 748, 770
(1996), the cases cited in that decision make clear that subsequent
legislative history that falls short of explicitly ``declaring the
intent of an earlier statute,'' and instead gives rise merely to
certain inferences, is entitled to far less weight. In Loving, the
Court cited a 1979 case, Consumer Product Safety Commission v. GTE
Sylvania, 447 U.S. 102, 117. There, the Court began its discussion of
the issue of ``subsequent legislative history'' with ``the oft-repeated
warning that ``the views of a subsequent Congress form a hazardous
basis for inferring the intent of an earlier one.''' The more formal
and explicit is Congress's statement of what it intended in its
previous enactment, the more weight it will be accorded. Where Congress
has passed legislation, which an agency has interpreted in a particular
(and controversial) way, and Congress then enacts a second statute
confirming that the agency's interpretation was consistent with what it
had intended all along, then Congress can truly be said to have
``declared the intent of an earlier statute,'' and that kind of
``subsequent legislative history'' will indeed be given great weight by
a reviewing court. This was the case, for instance, with the FCC's
``fairness doctrine,'' upheld by the Supreme Court in Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969). There, the Court said,
Congress had not just kept its silence about the agency's
interpretation but had ``ratified it with positive legislation.'' 395
U.S. 367, 381-82.
Where subsequent legislative history is less formal and explicit,
the Supreme Court has made clear that it becomes perilous to rely on
it: ``[A]s time passes memories fade and a person's perception of his
earlier intention may change. Thus, even when it would otherwise be
useful, subsequent legislative history will rarely override a
reasonable interpretation of a statute that can be gleaned from its
language and legislative history prior to its enactment.'' GTE
Sylvania, 447 U.S. at 118 n.13. In Oscar Mayer & Co. v. Evans, 441 U.S.
750, 751 (1979), the Court brushed aside a conference committee report
that, in dealing with amendments to a statute, offered its view of the
proper interpretation of the original statute. The Court said the
report was written 11 years after the original statute and thus was
``in no sense part of the legislative history * * *. It is the intent
of the Congress that enacted (the section) that controls.'' (Citations
omitted.) Likewise, in Teamsters v. United States, 431 U.S. 324, 354 n.
39 (1977), the Court stated that ``little if any weight'' should be
given to a conference committee report, written eight years after the
original statute, that purported to interpret that earlier statute.
Applying the law to this matter, we see nothing in these two
``notwithstanding'' clauses that even approaches being a clear
declaration of what section 189a of the 1954 Act provided. The most
that can be said for the later statutes is that they give rise to
possible inferences as to what the later Congresses--not the Congress
that passed the 1954 Atomic Energy Act--may have believed. But even
those inferences are far from unequivocal.
The most plausible explanation for the ``notwithstanding'' clauses,
in the Commission's view, is that they were intended not as a means to
overcome what were viewed as fatal legal impediments, but rather, as a
precaution, like many such legislative clauses, to anticipate potential
legal objections and eliminate them. In view of the way that the law
was then being applied by the AEC, it would have been only prudent of
the drafters to eliminate ambiguity on this point when enacting
additional provisions, even if they had been convinced that the clauses
were unnecessary. At this point, there is no good way to know whether
they regarded these clauses as necessary or not, but we doubt that a
reviewing court would care greatly one way or the other. To focus too
much on Congress's thought processes in 1962, when it enacted section
191, and in 1978, when it passed the Nuclear Non-Proliferation Act,
runs the risk of losing sight of what any reviewing court interested in
legislative intent would regard as the central question, which is what
Congress intended in 1954, when it enacted Section 189a.
For many years, the NRC did not depart from the longstanding
assumption that the Atomic Energy Act requires on-the-record hearings
despite the fact that this assumption had never been reduced to a
definitive holding.
Also consistent with its understanding of Section 189a, in 1978 the
NRC declared that the hearing it would hold on an application to
construct and operate a nuclear waste repository for high-level waste
would be formal. In a final rule (46 FR 13971; February 25, 1981) now
codified at 10 CFR part 2, subpart J, the Commission provided for a
mandatory formal hearing at the construction authorization stage and
for an opportunity for a formal hearing before authorizing receipt and
possession of high level waste at a geologic repository. Subsequently,
Congress enacted the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101
et seq. That law includes no specific hearing requirements. Instead, it
seems to contemplate, at Section 114, that the NRC will apply existing
laws applicable to the construction and operation of nuclear
facilities. In sum, there is no statutory requirement for a formal
hearing on a high level waste repository, but without a rule change,
the NRC's regulations would require a formal hearing. In 1990, Congress
also provided that for the licensing of a uranium enrichment facility,
the NRC ``shall conduct a single adjudicatory hearing on the record.''
\1\ This provision can be interpreted in one of two ways: either as one
more

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reflection of Congress's understanding that formal adjudication was the
norm in NRC facility licensing proceedings, or as the very opposite,
i.e., as showing that Congress understood that because of the
presumption against formal hearings, explicit statutory language would
be needed to make proceedings for this type of facility ``on the
record,'' as that term is used in the Administrative Procedure Act.
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\1\ Atomic Energy Act of 1954, as amended, section 193, 42
U.S.C. 2243.
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However, the view that formal adjudications were desirable and
mandatory was not unanimously held. As early as 1962, a Senate
subcommittee wrote, in words that might easily have been written today:

By now, it has become apparent that the adversary type of
proceeding, resembling as it does the processes of the courts, does
not lend itself to the proper, efficient, or speedy determination of
issues with which the administrative agencies frequently must deal *
* *. Questions relating to * * * licensing of atomic reactors * * *
might better be solved in some type of proceeding other than an
administrative ``lawsuit'' among numerous parties.\2\
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\2\ H.R. Rep. No. 1966, 87th Cong., 2d Sess. 6 (1962), quoted in
Kerr McGee Corp., CLl-82-2, 15 NRC 232,251 (1982)(Attachment 1).

This report was cited with approval by the Joint Committee on
Atomic Energy, which turned down a proposal recommended by its
consultants, to provide explicit statutory authorization for the AEC to
use informal procedures. The Joint Committee reasoned that such
legislation was unnecessary, given that the Commission already had
``legal latitude * * * to follow such procedures,'' that such
procedures were desirable, and that the Committee had strongly
encouraged the Commission to make use of them. Despite the Joint
Committee's urgings, the AEC made no move in the direction of
deformalization.
This interchange between Congress and the AEC over the nature of
the hearing requirement of section 189 took place again in 1972, as
Congress amended the AEA by adding a new section 192, to provide for
the issuance of a temporary operating license during the pendency of an
operating license hearing. This amendment, Public Law 92-307, 86 Stat.
191, explicitly provided that ``The hearing required by this section
and the decision of the Commission on the petition shall be conducted
with expedited procedures as the Commission may by rule, regulation, or
order deem appropriate for a full disclosure of material facts on all
substantial issues raised in connection with the proposed temporary
operating license.'' The legislative history of this provision is
replete with reminders to the Commission that the procedures to be
established for these actions are not to be trial-type procedures used
in connection with the issuance of the final operating license, as well
as that in a broader context, the Commission was not compelled to
conduct formal, on-the-record proceedings. In keeping with the new
section 192, the Commission fashioned expedited procedures in subpart F
to 10 CFR part 2 (1973), providing for an informal proceeding not
dramatically different in substance from the current provisions found
in subpart L to 10 CFR part 2. Section 192 expired by its own terms in
1973, but was renewed, in revised form in 1983, as part of the NRC's
authorization legislation for FY 1982-1983. Public Law 97-415, 96 Stat.
2067. The 1983 legislation stated that the provisions of Section 189a.
would not apply to such licensing actions, which were to be completed
``as promptly as practicable.'' See Public Law 97-415, sec. 11. The
Commission's implementing regulations were set forth in subpart C (48
FR 46497, October 13, 1983). 10 CFR 2.308 expressly provided that for
these temporary operating licenses formal adjudicatory procedures would
not be used and that case-by-case procedures would be developed to deal
with issues as they arose. As with its predecessor provision, the 1983
provision for the issuance of the temporary operating licenses expired
by its own terms, in 1983.
Over the decades since the Atomic Energy Act was passed, debate
over the value of on-the-record adjudication for the resolution of
nuclear licensing issues, and indeed for resolving scientific issues
generally, has only increased. There are now many observers who are
skeptical that the use of formal adjudication in NRC licensing cases is
the appropriate means to settle a regulatory issue; that whatever
validity there may have been to the arguments for formal adjudication
from the 1950s to the 1970s, they no longer have merit; and that less
formalized proceedings could mean not only greater efficiency, but also
better decisions, with more meaningful public participation and greater
public acceptance of the result. See, e.g., Improving Regulation of
Safety at DOE Nuclear Facilities, Final Report of the Advisory
Committee on External Regulation of DOE Nuclear Safety, December 1995,
at 39.
However, because of the early interpretation that formal hearings
were required, as well as the NRC's long-standing practice of
conducting formal hearings on reactor licensing actions, each time that
the NRC has explored ways of deformalizing its proceedings, it has had
to confront its own prior statements and actions on the subject. Even
so, no court has rendered a definitive holding on the application of
the APA's ``on-the-record'' hearing requirements to Atomic Energy Act
proceedings. Indeed, while some court decisions reflected the agency's
early assumption that ``on-the-record'' hearings were required, other
decisions did not. Compare Union of Concerned Scientists v. NRC, 735
F.2d 1437, 1444 n. 12 (D.C. Cir. 1984), cert. denied, 469 U.S. 1132
(1984) (U.C.S. I.) (``there is much to suggest that the Administrative
Procedure Act's (APA) ``on the record'' procedures * * * apply (to
section 189)'') with Union of Concerned Scientists v. NRC, 920 F.2d 50,
53 n. 3 (D.C. Cir. 1990) (``it is an open question whether section
189(a)--which mandates only that a `hearing' be held and does not
provide that that hearing be held `on the record'--nonetheless requires
the NRC to employ in a licensing hearing procedures designated by the
(APA) for formal adjudications''). The commentary in these and other
cases is essentially dicta--observations not essential to the court's
decision. See also Siegel v. AEC, 400 F.2d 778, 785 (D.C. Cir. 1968)
(deciding only permissibility of informal rulemaking procedures under
section 189); Porter County Chapter of the Izaak Walton League v. NRC,
606 F.2d 1363, 1368 (D.C. Cir. 1979) (deciding only NRC's discretion to
initiate enforcement proceedings subject to section 189 hearing); City
of West Chicago v. NRC, 701 F.2d 632, 642 (7th Cir. 1983) (deciding
only permissibility of informal procedures in materials licensing
adjudication).
In Chemical Waste Management v. EPA, 873 F.2d 1477, 1480 (D.C. Cir.
1989), the D.C. Circuit stated that while the presence of the words
``on the record'' are not absolutely essential in order to find that
formal adjudicatory hearings are required, there must be, in the
absence of those words or similar language, evidence of ``exceptional
circumstances'' demonstrating that Congress intended to require the use
of formal adjudicatory procedures. Although the court suggested, again
in dicta, that section 189a of the Atomic Energy Act might be a case
where ``exceptional circumstances'' dictate formal, on-the-record
hearing requirements, that observation has its roots in a dictum in
U.C.S. I which suggests that in 1961 ``the AEC specifically requested
Congress to relieve it of its burden of ``on the

[[Page 19614]]

record'' adjudications under section 189(a)'' and Congress did not do
so. 735 F.2d at 1444 n. 12. The opposite is more nearly correct: The
AEC argued in favor of formal procedures and the Joint Committee on
Atomic Energy advised that informal procedures were permissible. See
H.R. Rep. No. 1966, 87th Cong., 2d Sess., at 6 (1962), quoted in Kerr
McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982). More recently, in Kelley
v. Selin, 42 F.3d 1501, 1511-12 (6th Cir.), cert. denied, 115 S.Ct.
2611 (1995), the court emphasized the NRC's latitude to determine the
nature of the ``hearing'' mandated by the Atomic Energy Act.
The Commission's approach to deformalization has been cautious,
taking place in slow, incremental steps. One such step came in 1982,
when the Commission, in the West Chicago case, granted an informal
hearing (i.e., with written submissions only) on an amendment to a
materials license. In doing so, it observed that the Atomic Energy Act
did not specifically require on-the-record hearings, and it called the
legislative history ``unilluminating'' as to Congress's intent in
materials licensing cases. The Commission noted that while it held
formal hearings in all reactor licensing cases, it had not stated
explicitly whether it did so as a matter of discretion or of statutory
requirement. In any event, it did not view the Act as mandating an on-
the-record hearing in every licensing case. This decision was upheld by
a reviewing court. City of West Chicago v. NRC, 701 F.2d 632 (7th Cir.
1983). Subsequently, the NRC issued a new subpart L to part 2, setting
forth procedures for holding informal proceedings on all materials
license applications and amendments (54 FR 8276; February 28, 1989). In
the Nuclear Waste Policy Act of 1982, sec. 134, 42 U.S.C. 10154,
Congress specified a set of hybrid procedures for licensing expansions
of spent fuel storage capacity at reactor sites. The process called for
written submissions, oral argument, and an adjudicatory hearing only
after specific findings by the Commission. The Commission promulgated
procedures --10 CFR part 2, subpart K (50 FR 41670; October 15, 1985)--
to implement this legislation.
The West Chicago court's finding that formal hearings were not
required for materials licenses opened the door considerably wider for
the argument that formal hearings are not necessarily required in
reactor licensing cases. The provision of the Atomic Energy Act that
establishes the basic statutory entitlement to a ``hearing'' does not
distinguish between reactor licenses and materials licenses. The first
significant move toward deformalization of reactor licensing cases came
in 1989, when the NRC completed what a reviewing court described as a
``bold and creative'' effort to foster standardization of nuclear power
plant designs, as well as the early resolution of key safety issues.
This was the issuance of a new part 52, which provided for issuance of
design certifications and ``combined licenses'' for construction and
operation of nuclear power plants (54 FR 15386; April 18, 1989). The
rule provided that standard designs could be approved by rulemaking,
with an opportunity for an informal hearing conducted by an Atomic
Safety and Licensing Board. (This would be a ``paper'' hearing, unless
the Licensing Board requested the authority to conduct a ``live''--that
is, oral--hearing, and the Commission agreed.) Subpart G formal
hearings would be offered thereafter, before the issuance of the
combined construction permit/operating license for a specific facility.
When the facility was essentially complete and close to fuel loading
and criticality, there would be an opportunity for members of the
public to raise any concerns they might have about plant operation.
These could fall into one of two categories: Either a claim that the
facility as built did not meet the ``acceptance criteria'' specified in
the original combined construction permit/operating license, or a claim
that the acceptance criteria themselves (that is, the licensing
requirements) were deficient. For claims in the former category, the
Commission would determine whether to hold a hearing and whether it
would be a formal or informal hearing. A request to modify the terms of
a combined license would be handled as a request for action under 10
CFR 2.206.
Part 52 was promptly challenged after its promulgation. A panel of
the U.S. Court of Appeals for the D.C. Circuit issued a decision that
upheld some parts of the rule but set aside others, including the
provisions governing the opportunities for a hearing after completion
of construction and before operation. Nuclear Information and Resource
Service v. NRC, 918 F.2d 189 (D.C. Cir. 1990), vacated & rehearing en
banc granted, 928 F.2d 465 (D.C. Cir. 1991). However, the decision was
later vacated by the entire D.C. Circuit, sitting en banc. Nuclear
Information and Resource Service v. NRC, 969 F.2d 1169 (D.C. Cir.
1992). In its brief to the full court, the NRC argued unequivocally
that the Atomic Energy Act's hearing requirement for nuclear power
plant licensing did not necessarily mean a formal hearing.
The full court upheld part 52 in its entirety. However, on the
question of whether hearings must be formal, it reserved judgment on
the grounds that the NRC's argument that informal hearings were
permissible had not been made in the rulemaking or before the original
panel. 969 F.2d at 1180. Subsequently, Congress enacted legislation
(Pub. L. 102-486 (1992), endorsing part 52 and specifying that at the
pre-operation phase, any hearing on whether the appropriate inspections
and tests have been made, and the prescribed acceptance criteria have
been met, shall be either ``informal or formal adjudicatory,'' as the
Commission may in its discretion determine.
The Commission has taken two more steps to further stake out its
position that the Atomic Energy Act does not require formal hearings.
The first was a rulemaking implementing the Equal Access to Justice Act
(EAJA), 5 U.S.C. 504. This statute authorizes the recovery of
attorney's fees by certain ``prevailing'' parties in ``adversary
adjudications.'' The term ``adversary adjudication'' is defined in 5
U.S.C. 504(b)(1)(C) to generally mean, for purposes of the EAJA,
adjudications conducted under 5 U.S.C. 554, the section of the
Administrative Procedure Act applicable to adjudications required by
statute to be determined on the record after the opportunity for an
agency hearing. ``Adversary adjudications'' do not include
adjudications to consider the grant or renewal of a license.
The NRC decided to authorize the payment of attorney's fees only
for adjudications under the Program Fraud Civil Remedies Act, which by
law must be on-the-record, on the grounds that no other NRC
adjudications (other than those for the licensing of uranium enrichment
facilities under Section 193) must by law be on-the-record. 10 CFR part
12 (59 FR 23121; May 5, 1994). To date, no lawsuit has been filed
challenging this determination. The second and more significant step
was the recent promulgation of subpart M to part 2 (63 FR 66730; Dec.
3, 1998), to cover transfers of licenses, including those for power
reactors. Here again, the rule does not provide for formal proceedings.
In a Staff Requirements Memorandum issued on July 22, 1999 (which
is available to the public), the Commission directed OGC to develop a
proposed rulemaking. The Commission also indicated that it would pursue
legislation to confirm NRC's discretion to structure its procedures as
it deemed necessary to carry out its responsibilities. The Commission
further directed that the views of external stakeholders be obtained.
In response, on October 26-27, 1999, OGC

[[Page 19615]]

conducted a facilitated public meeting with stakeholders representing
the industry, public interest groups, another Federal agency, academia,
and the NRC's Atomic Safety and Licensing Board Panel. The transcribed
views of all participants are publicly available. In addition to the
broad issue of the degree of formality or informality of the hearing
process, the issues addressed at this meeting encompassed matters such
as requirements for standing, contentions, discovery, cross-
examination, summary disposition, hearing schedules and time limits,
the role of the presiding officer, and the number of different hearing
``tracks'' that might be appropriate, all having been raised directly
or indirectly in SECY-99-006. The comments at this meeting are
described below and have been considered in this rulemaking.

C. Comments on Policy Statement

The NRC has received a number of public comments on its recent
Policy Statement on the conduct of adjudicatory proceedings (63 FR
41872; August 5, 1998). The NRC is taking this opportunity to address
those comments as part of this proposed rulemaking.
Eleven sets of comments were received on the Policy Statement. Some
of the comments came from persons who represented the views of several
other named persons. Two of the sets of comments opposed the Policy
Statement; the remaining nine generally supported the Policy Statement.
Comment. The Policy Statement and its suggestions for expedited
proceedings that allow delays only in extreme and unavoidable
circumstances is unfair, inconsistent with due process, violates the
Administrative Procedure Act (APA), and emphasizes licensing over
health and safety concerns. Expedited schedules are not necessary for
nuclear power plant license renewal proceedings. Expedited schedules
may not be reasonable for hearings with complex issues. An expedited
hearing schedule is harmful to intervenor groups who need more time due
to their lack of funding.
Response. The NRC is unaware of any judicial decision that holds
that the type of hearing procedures being proposed in the Policy
Statement guidance violates due process or the APA. In fact, the Policy
Statement recognizes that there is a need to balance efforts to avoid
delay with procedures that will ensure fair and reasonable time frames
for taking action in the adjudication. The Commission believes that the
guidance in the Policy Statement strikes a proper balance among all
these considerations. The Commission also believes that providing more
effective hearing processes will result in a better use of all
participants' limited resources.
Comment. Contrary to statements made in the Policy Statement,
licensing boards do not have total discretion to set schedules in
proceedings. For example, licensing boards must allow contentions to be
filed anytime up to 15 days before the prehearing conference, and a
board may not shorten this time.
Response. 10 CFR 2.718 provides the presiding officer the power to
regulate the course of the proceeding. In addition, under 10 CFR 2.711,
licensing boards may, for good cause, shorten or lengthen the time
required for filings. This provision expressly allows the boards to set
deadlines for filings, such as the filing of contentions.
Comment. Multiple licensing boards should not be used because it
could be too burdensome for intervenor groups with limited resources.
Response. The Commission recognizes that, in some instances, the
use of multiple licensing boards can place a burden on all parties. For
that reason, the NRC is careful to consider and account for the
circumstances of each case and to ensure that the use of multiple
boards will not prejudice any party. However, it is important to have
flexibility to use multiple boards where it will not prejudice any
party, as the use of more than one board can allow the effective
litigation and resolution of a number of separate issues resulting in a
more timely completion of the record and decision for the whole case.
Comment. The guidelines set forth in the Policy Statement should be
codified through a rulemaking.
Response. The Commission is proposing to codify appropriate
portions of the Policy Statement in this rulemaking. Because the Policy
Statement deals primarily with case management and control, it may not
be appropriate to convert everything in the Policy Statement to hard
and fast requirements. The Commission believes that it is important to
retain flexibility to manage proceedings as the situation warrants.
Comment. A licensing board should be able to raise any safety issue
that is material to health and safety, regardless of whether it is a
substantial issue.
Response. If a licensing board determines in the course of a
hearing that a safety issue exists that has not been raised by a party,
it may refer the matter to the Commission with a recommendation on how
the issue should be addressed. Some issues raised by a licensing board
sua sponte may be addressed appropriately through adjudications, while
others may not. In fact, the Commission has a process for considering
the board's recommendation on sua sponte issues and that process can
result in the issues being considered in the adjudication or being
referred to the NRC staff for review and resolution without litigation.
Comment. The Commission's suggestion that the licensing boards
limit the use of summary disposition motions goes too far.
Response. There are appropriate times for filing summary
disposition motions. There may be times in the proceeding where these
motions should not be entertained because consideration of the motions
would unduly delay or complicate proceedings by distracting responding
parties from addressing other pending issues. Moreover, there may be
situations in which the time required to consider summary disposition
motions and responses and to issue a ruling on these motions will
substantially exceed the time needed to complete the hearing and record
on the issues. The licensing board is in a good position to determine
when the use of summary disposition would be appropriate and would not
delay the ultimate resolution of issues and the Commission will provide
the boards the flexibility to make that determination in most
proceedings.
Comment. The limitation of discovery on the NRC staff until after
the Safety Evaluation Report (SER) and Final Environmental Statement
(FES) is overly broad and could delay the proceeding.
Response. The most fruitful time for discovery of NRC staff review
documents is after the staff has developed its position. Subjecting the
NRC staff to extensive discovery early in the process will often
require the staff to divert its resources from completing its review.
In addition, early discovery before the NRC staff has finalized the
major part of its reviews may present a misleading impression of staff
views. Finally, a focus on discovery against the NRC staff diverts the
focus from the real issues in a licensing proceeding, which is the
adequacy of the applicant's/licensee's proposal. Nevertheless, the NRC
recognizes the importance of timely completion of the NRC staff's
reviews and the staff is making a concerted effort at rigorous planning
and scheduling of staff reviews. In this regard, the NRC staff has
continued to refine and complete its standard review plans and its
review guidance and has moved to a more performance-goal oriented
approach in an effort to improve the timeliness of its reviews.
Steering and oversight committees are sometimes formed to direct the
course of major technical review efforts and

[[Page 19616]]

detailed milestone schedules are developed and tracked. NRC managers
and staff are held accountable for these schedules. The NRC will
continue with these efforts to improve the timeliness of licensing
reviews.
Comment. The hearing should not be delayed until after the FES and
the SER are issued as it could delay the proceedings.
Response. In Subpart G proceedings where the NRC staff is a party,
the staff may not be in a position to provide testimony or take a final
position on many issues until these documents have been completed. In
many cases, it would be unproductive and cumbersome to have a two-
pronged hearing with one part of the hearing being conducted before
issuance of the NRC staff documents and a second hearing after issuance
of the documents.
Comment. Licensing boards should rule on standing before the
submission of contentions.
Response. The Commission expects that standing issues would be
among the first issues addressed by a presiding officer in an
adjudication, but that does not dictate that the submission of
contentions should be delayed. The Commission also expects that
concrete issues of concern to the public would be raised on the basis
of the application or the proposal for NRC action and can be identified
at the same time the petition addresses the matter of standing.
Comment. The Commission should apply the Federal Rules of Evidence
with respect to scientific testimony.
Response. Neither the current procedures nor the proposed
regulations contain a special provision for scientific testimony.
Scientific testimony can be tested and evaluated in the same manner as
other evidence presented at a hearing. Although the Commission has not
required the application of the Federal Rules of Evidence in NRC
adjudicatory proceedings, presiding officers and licensing boards have
always looked to the Federal Rules for guidance in appropriate
circumstances. The Commission continues to believe that greater
informality and flexibility in the presentation of evidence in
hearings, rather than the inflexible use of the formal rules of
evidence imposed in the Federal courts, can result in more effective
and efficient issue resolution.
Comment. The Commission should place limitations on cross-
examination.
Response. The proposed changes to procedures for the less formal
process do place limitations on cross-examination. Under these
procedures, the presiding officer may question witnesses who testify at
the hearing, but parties may not do so. However, parties may present
the presiding officer with written suggestions for questions to be
asked. The proposed rules would also allow motions to the presiding
officer to allow cross-examination by the parties where this would be
necessary to develop an adequate record. As a general matter, the
presiding officer is authorized, under both the existing and proposed
rules, to limit cross-examination in appropriate circumstances. The
Commission requests public comments on these proposals to limit cross
examination (see below in E. Summary and General Questions).
Comment. The Commission should be actively involved in overseeing
proceedings and there should be expedited interlocutory review for
novel legal or policy issues.
Response. Although providing for a Commission ruling on significant
issues before the hearing is completed can focus the issues to be
addressed in a hearing, on balance, the Commission believes that the
additional delay necessarily associated with interlocutory appeals
outweighs any potential reduction in hearing time that may come about
through a Commission decision in such an appeal. Accordingly, the
Commission has decided that it should depart from existing practice by
not permitting interlocutory appeals based solely on the existence of
novel legal or policy issues.
Comment. The Commission should actively review the performance of
licensing boards and ensure that boards make prompt decisions.
Response. The Commission has been carefully monitoring all
licensing board proceedings to ensure that they are being appropriately
managed to avoid unnecessary delay. The Commission, through its Policy
Statements and case-specific orders, has been encouraging licensing
boards to issue timely decisions consistent with the boards'
independence in performing their decisionmaking functions. The proposed
rule explicitly addresses case management and would require the
presiding officers/boards to notify the Commission when there is non-
trivial delay in completion of the proceeding. The Commission wishes to
emphasize, however, that the Commission's oversight of licensing boards
with respect to case management is not intended to intrude on the
independence of licensing boards in discharging their independent
decisionmaking responsibilities.

D. Comments From Hearing Process Workshop

The October 26-27, 1999, hearing process workshop involved
participants from the nuclear industry, states, public interest groups,
the academic community, ALJ community, and the NRC. Transcripts from
the workshop are available in NRC's Public Document Room. The major
comments and the Commission's responses follow.
Comment. In general, the public citizen group participants
questioned whether there was a need to make any changes to the current
hearing procedures. They also voiced concerns about any limitations on
current discovery and cross-examination. Industry representatives
advocated changes to the hearing process, which they viewed as becoming
increasingly and needlessly time consuming.
Response. The Commission believes that there is a need to take some
action to improve the management of the adjudicatory process to avoid
needless delay and unproductive litigation. Possible action could range
from the imposition of case management requirements in all proceedings
to the removal of unnecessary formalities that divert the parties
efforts and focus from addressing the merits of real issues. The NRC
believes that using a less formal hearing process with simplified
procedures for most types of proceedings along with a requirement for
well-supported specific contentions in all cases can improve NRC
hearings, limit unproductive litigation, and at the same time ease the
burdens in hearing preparation and participation in hearings for public
participants.
As proposed in this rulemaking, well-supported specific contentions
would be required in all proceedings, just as they are now required in
those proceedings that use the NRC's formal hearing procedures.
Petitioners generally have been able to meet the current specific
contention requirements and the Commission would not expect the
application of those requirements to informal proceedings to adversely
effect public participation. Indeed, by focusing litigation efforts on
specific and well-defined issues, all parties will be relieved of the
burden of having to develop evidence and prepare a case to address
possibly wide-ranging, vague, undefined issues.
Under this proposed rule, early document disclosure and witness
identification would be required of all parties in every case. In
proceedings using informal hearing procedures, no other discovery would
be permitted.

[[Page 19617]]

This approach should reduce the burdens on public participants because
petitioners would be given access to pertinent information without the
need to file formal discovery requests, and would not be burdened with
responding to formal discovery requests. Because the proposed
disclosure provision would require the applicant/licensee and the NRC
staff to disclose and make available all documents in their possession
that directly relate to the matter that is the subject of the hearing,
there should be a wealth of information available for the parties to
prepare their cases.
Under the proposed rules, cross-examination would be retained for
formal hearings. Under the proposed informal hearing procedures, only
the presiding officer would question witnesses. Nevertheless, the
informal procedures would allow the parties to suggest questions for
the presiding officer to ask and they would permit motions to allow the
parties themselves to cross-examine witnesses where necessary to
develop an adequate record for decision. This should ensure that there
is questioning of witnesses sufficient to develop an adequate record.
The Commission requests public comments on the provisions limiting
cross examination (see below in E. Summary and General Questions).
Comment. Participants raised concerns regarding case management
practices by the licensing boards. One concern raised by the
representatives of the nuclear industry was the perceived lack of
control by presiding officers in some informal and formal proceedings.
According to these participants, in informal proceedings, presiding
officers too often allow pleadings to be amended or allow an unlimited
number of reply briefs. Nuclear industry participants stated that
discovery in formal proceedings takes too long, that the NRC staff
requires too much time to issue a Final Environmental Impact Statement
(FEIS) and Safety Evaluation Report (SER), and that the presiding
officer/board takes too long to issue an initial decision.
Response. Strong case management is an integral part of an
efficient and effective hearing process. The Commission expects
presiding officers/boards to manage all adjudications carefully and
attentively. Tools to be used to this end are reflected in the proposed
rule. The Commission proposes to modify the intervention requirements
for informal hearings to require the submission of specific, well-
supported contentions as is currently required for formal hearings.
This should result in hearings that focus on well-defined issues and
obviate the need to receive evidence of questionable relevance. The
Commission also proposes to modify the informal hearing procedures in a
manner that should reduce the amount of motion practice over what
hearing procedures to use. In addition, as noted earlier, the NRC staff
itself is taking steps to better assure the timely completion of its
review and associated documents. Finally, the Commission proposes
hearing management procedures that provide for the integration of the
NRC staff's review documents into the hearing schedules.
Comment. One of the attributes of the formal process is cross-
examination of witnesses. Nuclear industry participants urged that
cross-examination not be used as it is often not an effective or
efficient way to determine the truth. However, citizen group
participants argued that cross-examination is effective and oppose any
elimination of this tool. Some nuclear industry participants argued
that cross-examination should only be an optional tool that can be used
if it is determined that it is necessary. These representatives also
urged that cross-examination must be used in enforcement hearings.
Other licensee representatives suggested that certain proceedings, e.g.
proceedings involving license applications for activities posing low
risk from a public health and safety perspective, should not use cross-
examination. Citizen group participants pointed out that there may not
be agreement as to which proceedings involve ``low risk'' activities.
Response. The proposed rule provides for cross-examination by the
parties in enforcement proceedings and proceedings involving complex
issues that warrant the use of formal subpart G hearing procedures.
Other NRC proceedings would utilize the less formal procedures that do
not include cross-examination by the parties unless ordered by the
presiding officer or the Commission in a particular case. Nonetheless,
these proceedings would involve questioning of witnesses by the
presiding officer and further cross-examination by the parties
themselves where the presiding officer determines that is necessary to
develop an adequate record for decision. The Commission believes that
this approach strikes an appropriate balance in the use of cross-
examination.
Comment. Another attribute of the current formal proceedings is
discovery. The representatives of citizen groups view discovery as
essential because they do not have access to the information that
licensees and the NRC staff do and they perceive this as a disadvantage
early in the proceedings. Citizen group representatives also noted
ready access to information can be frustrated by the fact that the
application may be incomplete and is supplemented through the NRC
staff's Requests for Additional Information (RAI). In response to the
citizen group representatives' concerns, the nuclear industry
representatives suggested that interested parties should attend staff-
applicant meetings that take place before the submission of an
application. Citizen group representatives suggested that interested
individuals should be permitted to participate in these meetings
instead of just observing. One option suggested by the administrative
law judge participant was that the NRC model its discovery rules on
Rule 26 of the Federal Rules of Civil Procedure.
Response. The proposed rules provide that in all adjudicatory
proceedings (whether formal or informal), the parties would exchange
relevant documents and other information at the beginning of the
proceeding. This approach is based on Rule 26 of the Federal Rules of
Civil Procedure. Parties would also be required to exchange the
identity of expert witnesses, as well as existing reports of their
opinions. The more formal discovery available under the formal hearing
procedures would remain for the formal hearings.
The Commission encourages interested persons to attend meetings
between the NRC staff and the applicant, both before and after a
license application is submitted. These meetings are noticed in advance
and are open to all to observe. Public attendance at these meetings
should provide individuals or groups early access to information so
that they may participate more effectively in the hearing process. This
may also result in reduction of issues that must be adjudicated.
Comment. The representatives of citizen groups and local
governments argued that the rules for standing should be liberalized.
These participants noted that NRC proceedings require much time and
money and are not undertaken lightly.
Response. Members of the public who have an interest that will be
affected by a proposed action should be readily able to establish their
standing under the standards in the proposed rule. At the same time,
the Commission recognizes that there may be instances where persons who
do not have a direct interest and cannot demonstrate standing
nevertheless are able to make a substantial contribution to the
development of the record in the proceeding. Accordingly, the
Commission proposes to codify the six

[[Page 19618]]

criteria for discretionary intervention which were first articulated in
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1
and 2), CLI-76-27, 4 NRC 610, 617 (1976): (i) The extent to which the
requestor's/petitioner's participation may reasonably be expected to
assist in developing a sound record; (ii) the nature and extent of the
requestor's/petitioner's property, financial or other interests in the
proceeding; (iii) the possible effect of any decision or order that may
be issued in the proceeding on the requestor's/petitioner's interests;
(iv) the availability of other means for protecting the interests of
the requestor/petitioner; (v) the extent to which the requestor's/
petitioner's interests will be represented by existing parties; and
(vi) the extent to which the requestor's/petitioner's participation
will inappropriately broaden the issues or delay the proceeding. The
Commission requests public comment on this proposal (see below in E.
Summary and General Questions).
Comment. Citizen group representatives stated that the NRC should
return to its pre-1989 contention standards. Some of these participants
noted that an intervenor, under current practice, often has to prove
its case in order to have a contention admitted. These participants
also believe that the current contention standard has a chilling effect
on citizen group participation. The citizen group representatives also
stated that they had difficulty meeting the current contention standard
because they lacked information about the application. In addition, the
NRC staff practice of issuing requests for information (RAIs) for a
purportedly incomplete application is said to place additional burdens
on intervenors to continually support their contentions on a changing
application. However, a nuclear industry representative believed that
this high contention threshold has been necessary to ensure that
hearings are focused on legitimate issues.
Response. The NRC believes that the current contention standard is
appropriate and should not be changed. This standard is necessary to
ensure that hearings cover genuine and pertinent issues of concern and
that the issues are framed and supported concisely enough at the outset
to ensure that the proceedings are effective and focused on real,
concrete issues. Ample information is provided in the application and
related documents.
Comment. All citizen group participants stated that there is a need
for intervenor funding. These participants argued that if the
intervenors had access to resources for participation, there could be
fewer delays in the proceeding and they could better assist the NRC in
reaching the correct result. Nuclear industry representatives disagreed
with these assertions. One participant noted that currently legislation
prohibits the NRC from providing intervenor funding.
Response. Congress, in section 502 of the Energy and Water
Development Appropriations Act for FY 1993, has barred the use of
appropriated monies to pay the expenses of, or otherwise compensate,
parties intervening in NRC regulatory or adjudicatory proceedings.
Public Law 102-377, Title V, section 502, 106 Stat. 1342 (1992), 5
U.S.C. 504 note. Therefore, the proposed rule does not address this
issue.

E. Summary and General Questions

From experience with, and the comments on, the 1998 Policy
Statement, from the valuable discussions in the hearing process
workshop, and consistent with the views expressed in the Staff
Requirements Memorandum of July 22, 1999, the Commission has decided to
propose modifications to the hearing procedures in 10 CFR part 2. As
described in more detail below, the proposed rule would revise a number
of current provisions of 10 CFR part 2 in order to fashion hearing
procedures that are tailored to the different kinds of licensing and
regulatory activities the Commission conducts. The Commission expects
that the revised hearing procedures, ranging from informal to formal,
will improve the effectiveness and efficiency of NRC's hearing process,
and better focus and utilize the limited resources of all involved. The
Commission seeks public comment on all aspects of this proposed
rulemaking. In addition, the Commission has set forth a number of
specific questions focusing on specific issues with respect to
restructuring the agency's adjudicatory process; the Commission seeks
public comment on these issues, together with alternative proposals
where a member of the public disagrees with the Commission's proposals.
The Commission's SRM on SECY-00-0017 approving the publication of this
proposed rule, and the vote sheets of individual Commissioners, are
available for viewing at http://www.nrc.gov/NRC/COMMISSION/VOTE/
index.html. It is particularly important to review the individual
Commissioner's vote sheets for insights on the issues considered by the
Commission.
(1) Overall Approach for Informal Hearings. In preparing the
proposed rule, the Commission carefully considered the advantages and
disadvantages of each aspect of both formal hearings and informal
hearings, attempting to balance the competing considerations of
accurate decisionmaking, ensuring protection of public health and
safety, timeliness of Commission decisions, and maintaining public
confidence in the decisionmaking process. The proposed rule reflects
the Commission's current judgment about how these competing
considerations should be accommodated in the NRC's hearing processes.
Nonetheless, the Commission is aware that various NRC stakeholders
may have differing perspectives on the relative importance of these
considerations and differing views on the balance to be struck among
these considerations. The Commission is interested in public comments
on the relevant considerations that should inform the Commission's
decision in adopting informal hearing procedures, and whether the
Commission's strategy in moving towards informal hearings should be
continued. Overall, the Commission requests public comments identifying
any aspect of the proposed rule's informal and formal hearing
procedures which the commenter believes could be improved, together
with specific proposals for improvement and an assessment of the
proposal against relevant considerations, including due process,
fundamental fairness, the need for timely decisionmaking, and accurate
factfinding.
The Commission also seeks comments on whether the informal hearing
processes embodied in subpart L and subpart N should be augmented or
even supplanted by more informal, legislative-style hearing procedures.
The informal hearing tracks currently approved by the Commission in
part 2, as well as the procedures in subparts L and N that are
addressed in this proposed rulemaking, all involve to a greater or
lesser extent adversarial-style proceedings. In adversarial-style
proceedings, the identification and framing of the issues, and
development of the record is primarily under the control of the parties
through their submission of contentions, and the presentation of
testimony and submission of evidence to support their positions; the
presiding officer is responsible for ensuring that the record is
adequate for decision on the issues raised by the parties and for
deciding law and facts based upon the record developed. A possible
alternative to the adversarial concept, at least for matters for which
subpart L and subpart N

[[Page 19619]]

procedures apply, would be to treat the proceedings as a legislative-
style hearing, in which the Commission or presiding officer is
responsible for the framing of issues and the development of the
record, as well as being the ultimate decisionmaker. One possible
method of implementing this approach would be for the Commission to be
the presiding officer as in subpart M (Sec. 2.1319) rendering the
decision; determinations of standing would be based less on judicial
standards and more on ability of the hearing participant to contribute
to the careful discussion of the issues; written submissions would be
expected as a matter of course, as would oral presentations, both types
being limited by regulations on length; and questioning in an oral
hearing would be by the Commission itself, with some room for limited
``cross-examination'' of testifying witnesses by other hearing
participants. The Commission requests public comment on the feasibility
and desirability of using legislative-style hearing procedures for
matters that would otherwise be subject to subpart L and subpart N
procedures.
(2) Hearing Tracks. Under the hearing process reflected in the
existing regulations in 10 CFR part 2, there are at least four hearing
``tracks'' or integrated sets of procedures that characterize a
proceeding: subpart G that, apart from a number of provisions of
general applicability, contains the procedures for a formal hearing;
subpart L which contains the procedures for most informal hearings
currently used for materials licensing actions; subpart M which
contains the procedures for informal hearings on all license transfer
actions; and subpart K which contains procedures for a ``hybrid''
hearing on spent fuel storage capacity expansions.
In reformulating the NRC's hearing process, the Commission believes
that there should be at least three tracks--a formal hearing track, an
informal hearing track, and as provided by statute, a hybrid
procedure--but there is uncertainty over the value of additional, more
specialized tracts within each of these broader categories. In the
proposed rule, the Commission would retain a single formal hearing
track--proposed subpart G--and the specialized ``hybrid'' hearing
track--subpart K--but it would also provide for three different
informal hearing tracks--revised subpart L for nearly all hearings;
subpart M for license transfer hearings; and a new subpart N for
expedited informal hearings. Formal hearings would be utilized only for
proceedings specifically identified in the proposed rule, and for
nuclear reactor licensing proceedings involving complex issues (see
below in II.B.(2)). However, there are a number of alternatives for
restructuring the overall NRC hearing processes that may offer some
benefits in reduced complexity, thereby contributing to more
expeditious conduct of hearings and increased public understanding and
confidence in the fairness and efficacy of the hearings.
One alternative approach would be to reduce the hearing tracks to
three--a single formal hearing procedure, a generally-applicable
informal hearing procedure, and to comply with a statutory requirement
a single hybrid procedure for expansions of spent nuclear fuel storage
capacity at civilian nuclear power plants (currently reflected by the
procedures in subpart K). Under this approach, the presiding officer
would have the flexibility to adapt the selected hearing track to suit
the case. For example, in the case of a formal hearing, the presiding
officer could be authorized to limit discovery and to constrain
duplicative testimony and non-productive cross-examination. Similarly,
in the case of an informal hearing the presiding officer could be
empowered to allow limited discovery in appropriate cases. The
Commission requests public comments on: (i) The proposed rule's
approach of multiple, specialized tracks tailored to certain types of
issues, (ii) whether additional specialized tracks should be
considered, (iii) the desirability of adopting an alternative approach
of a single formal and two informal hearing procedures, with the
presiding officer given the discretion to tailor the procedures to suit
the circumstances of each case.
Another matter about which the Commission seeks public comment is
whether there are better alternatives to the proposed rule's approach
for defining what type of proceedings are appropriate for formal or
informal hearing procedures. Is the proposed category of cases to which
formal hearing procedures would apply too narrow? On the other hand, an
alternative would be for the rule to specify that all proceedings would
be informal hearings unless one or more criteria are met for the use of
formal, subpart G hearing procedures. Some possible criteria would be
whether the proceeding presents complex issues, raises difficult
disputed issues of material fact or of expert opinion which cannot be
resolved with sufficient accuracy except in a formal hearing (i.e.,
similar to the standard for a formal hearing in design certification
rulemaking, 10 CFR 52.51(b)), and--to ensure that significant cases are
captured--matters for which preparation of an environmental impact
statement is necessary. Determinations regarding the criteria would be
initially screened by the presiding officer, and certified to the
Commission for final determination. The Commission requests public
comments on this alternative, as well as proposals for other criteria
for determining formal versus informal hearing procedures. Commenters
should identify the perceived advantages and disadvantages of suggested
alternative approaches as compared with the proposed rule's approach
for determining the applicability of formal and informal hearing
procedures.
(3) Presiding Officer. Under the hearing process reflected in the
existing regulations in part 2, an Administrative Judge or an Atomic
Safety and Licensing Board normally serves as the presiding officer to
conduct the entire adjudicatory proceeding starting with the oversight
of prehearing activities, through the conduct of the hearing itself,
and ending with the formulation and issuance of an initial decision. A
potential exception under current rules involves subpart M on license
transfer actions which recognizes that the Commission itself may choose
to serve as presiding officer or to appoint a person other than an
Administrative Judge or a licensing board to serve as presiding officer
in some cases. The Commission welcomes comments on whether there should
be criteria for determining whether a proceeding should be held before
an administrative judge/licensing board or the Commission and, if so,
what those criteria should be.
(4) Discovery. Under the existing part 2, parties are permitted
discovery ranging from document production to multiple interrogatories
and depositions of other parties' witnesses. In the proposals that
follow, there would be a general requirement in every proceeding that
the parties disclose and make available pertinent documents and
identify witnesses. Additional discovery would be available in
proceedings that use the formal hearing procedures of subpart G.
However, in view of the general availability of licensing and
regulatory documents under NRC regulatory practice, it is not clear
that discovery is needed in most NRC adjudications beyond the exchange
of documents and written disclosures described above. The Commission
welcomes comments on whether discovery should be eliminated or limited
to requests from the presiding officer. Would a general disclosure
obligation of the sort that would be required in the proposals that
follow be

[[Page 19620]]

sufficient discovery for all NRC adjudicatory proceedings?
(5) Witnesses, Cross-Examination, and Oral Statements by the
Parties. Under the existing part 2, as well as under the proposals that
follow, provision is made for oral testimony of the parties' witnesses,
although some proceedings are to be based on written evidence alone.
The Commission seeks public comment on the degree to which oral
testimony and questioning of witnesses should be used in each of the
proposed hearing tracks.
With respect to cross-examination, the proposed rule reflects the
Commission's tentative determination that full-cross examination
conducted by the parties often may not be the most effective means for
ensuring that all relevant and material information with respect to a
contested issue is most efficiently developed for the record of the
proceeding. Thus, the informal hearing procedures contain provisions
designating the presiding officer with the authority and responsibility
to conduct the examination of witnesses, in some cases after
considering suggested questions for witnesses posed by the parties.
While this approach places greater emphasis and responsibility on the
presiding officer to develop a full and complete record, some might
argue that it is less supportive of the desires of the parties to focus
the questioning on the information that they believe is most cogent and
relevant. In addition, there may be concerns that this approach places
too much responsibility and burden on the presiding officer--rather
than on the parties--to establish the record on which the decision is
to be based. Thus, with respect to cross-examination and questioning by
the presiding officer, the Commission requests public comment on: (i)
The relative value and drawbacks of cross-examination; (ii) whether the
proposed approach that would limit cross-examination in favor of
questioning by the presiding officer is appropriate; (iii), whether
subpart L should retain traditional cross-examination as a fundamental
element of any oral hearing; and (iv) assuming that cross-examination
is necessary or more effective in certain circumstances to afford
parties fundamental fairness, timely and effective identification of
relevant and material information, or to provide public confidence in
the hearing process, the appropriate criteria for identifying and
distinguishing between proceedings where cross-examination should be
used, versus those where cross-examination is not necessary.
Assuming that cross-examination as of right is not afforded in
certain circumstances (as is currently proposed for, inter alia,
subparts L and N), the Commission requests public comment regarding
whether parties should be permitted to make oral statements of
position, and, if so, whether time limits should be placed on such
statements.
(6) Time Limitations. Although the existing part 2 and the
proposals that follow set various time limits for filings, petitions,
responses and the like,\3\ there are no firm time schedules or
limitations established within which major aspects or parts of the
hearing process (e.g., discovery, issuance of an initial decision
following the close of the evidentiary record) must be completed. The
Commission welcomes comments on whether firm schedules or milestones
should be established in the NRC's rules of practice in 10 CFR part 2.
---------------------------------------------------------------------------

\3\ It should be noted that the proposed revisions to 10 CFR
part 2 generally do not contain special extended deadlines for NRC
staff responses to petitions, motions and pleadings. The elimination
of the allowance of extra time for NRC staff responses is part of
the Commission's effort to increase the efficiency of NRC
adjudications.
---------------------------------------------------------------------------

(7) Request for Hearing and Contentions. In proposed subpart C, the
Commission addresses the filing of petitions/requests for hearings and
contentions for all proceedings. The Commission seeks public comment
and views on the appropriate time frame for filing a petition/request
for hearing and contentions.
(8) Alternative Dispute Resolution. Various methods of alternative
dispute resolution (ADR) can serve to satisfy the parties on matters of
concern and obviate the need to litigate issues in an agency
adjudication. ADR is discussed at some length in the proposals that
follow. The Commission welcomes comments and views on whether parties
to NRC adjudications should be required to engage in ADR.

II. Description and Discussion of the Proposed Rule

A. Overview

To provide for a more effective and efficient hearing process, the
Commission proposes to modify the procedures in 10 CFR part 2 to: (i)
Establish a new subpart C to consolidate in one place the Commission's
procedures for ruling on requests for hearing/petitions for leave to
intervene and admission of contentions, to establish criteria for
determining the specific hearing procedures (e.g.: formal--subpart G;
informal--subparts L, M; hybrid--subpart K) that are to be used in
particular cases and to set out the hearing-related procedures of
general applicability; (ii) substantially modify the hearing procedures
in the current subpart G and subpart L and expand the scope of
applicability of those informal procedures; (iii) establish a new
subpart N that will provide ``fast track'' hearing procedures to be
used in appropriate cases; and (iv) make conforming amendments as
necessary throughout Part 2.
The proposed new subpart C--Rules of General Applicability for NRC
Adjudicatory Hearings --would be the starting point for consideration
of, and rulings on, all requests for hearing/petitions for leave to
intervene and the admissibility of contentions, and for selecting the
appropriate hearing procedures to be applied in the remainder of the
case. The Commission, a designated presiding officer, or a designated
Atomic Safety and Licensing Board would rule on requests for hearing/
petitions to intervene and the admissibility of proffered contentions
using the standards and procedures of subpart C. Where it is determined
that a hearing should be held, the Commission, presiding officer, or
licensing board would next examine the nature of the action that is the
subject of the hearing and the contentions admitted for litigation,
apply the criteria in subpart C to determine the specific procedures/
subpart that should be used for the adjudication, and issue an order
for hearing designating the procedures/subpart to be used for the
remainder of the proceeding. The hearing activities would then proceed
under the designated subpart (e.g. subpart G for formal hearings,
subpart L for general, informal hearings, subpart M for license
transfer cases, subpart N for an expedited ``fast track'' hearing).
subpart C also contains rules applicable in general to hearings
conducted under the respective subparts.
The hearing procedure selection provision of proposed subpart C
would reflect in large part the range of proceedings that currently use
informal hearing procedures under the existing rules. This is in
keeping with the Commission's intent to expand the use of informal
procedures in an attempt to improve the effectiveness and efficiency of
the NRC's hearing processes. Subject to certain exceptions, the norm
would be an informal hearing process. These exceptions are: (i)
Licensing of uranium enrichment facilities, (ii) initial licensing
authorizing the construction of a high-level waste geological
repository, and initial licensing authorizing the repository to receive
and possess high level waste, (iii) enforcement matters, and (iv)
complex issues in reactor

[[Page 19621]]

licensing. The hearing procedure selection process and criteria are
discussed below under the description of Sec. 2.310.
The Commission proposes to retain essentially all of the current
procedures specific to the conduct of formal hearings under subpart G,
but to substantially modify the existing procedures for informal
hearings in subpart L to bring them more in line with the current
procedures for hearings in subpart M for license transfer proceedings.
The Commission also proposes a new subpart N that contains procedures
for a ``fast track'' hearing. subpart N would provide for an expedited
oral hearing and oral motions, and limit written submissions and the
protracted written responses they often entail. The primary
modifications to subparts G and M involve the removal of provisions
that are generally applicable to all proceedings and the relocation of
the essence of those common provisions to subpart C. Conforming changes
would be made to other subparts of 10 CFR part 2.

B. Specific Proposals and Request for Comment

1. Subpart C--Sections 2.300-2.347
The Commission proposes to establish a new subpart C that would
contain the rules of general applicability for considering hearing
requests, petitions to intervene and proffered contentions, for
determining the appropriate hearing process procedures to use for a
particular proceeding, and for establishing the general powers and
duties of presiding officers for the NRC hearing process. The
provisions of subpart C would generally apply to all NRC adjudications
conducted under the authority of the Atomic Energy Act of 1954, the
Energy Reorganization Act of 1974 and 10 CFR part 2.
(a) Provisions of General Applicability. A large part of the
proposed subpart C essentially restates and updates the substance of
many of the rules of general applicability that are currently contained
in subpart G. The Commission proposes to transfer the following
provisions, with modifications, from the existing subpart G to the
proposed subpart C:

----------------------------------------------------------------------------------------------------------------
New section Old section Description/modification
----------------------------------------------------------------------------------------------------------------
2.301................................ 2.700a................. None.
2.302................................ 2.701.................. Addresses facsimile transmissions and electronic
mail.
2.303................................ 2.702.................. Clarified; no substantive change.
2.304................................ 2.708, 2.709........... Addresses electronic mail; modifies format
requirements of documents.
2.305................................ 2.712.................. Addresses facsimile and electronic mail. Adds
provision requiring service by most expeditious
means.
2.306................................ 2.710.................. Addresses computation of time for electronic
mail and facsimile transmissions.
2.307................................ 2.711.................. None.
2.308................................ NA..................... New section on Secretary's duty to forward
petitions/requests for hearing to Commission or
Chief Judge.
2.309................................ 2.714.................. Changes requirement for standing; requires
filing of contentions with petition/request for
hearing.
2.310................................ NA..................... New section setting forth criteria for different
hearing tracks.
2.311................................ 2.714a................. None.
2.312................................ 2.703.................. Clarified; no substantive change.
2.313................................ 2.704.................. None.
2.314................................ 2.713.................. Simplified and expanded.
2.315................................ 2.715.................. Clarified; no substantive change.
2.316................................ 2.715a................. None.
2.317................................ 2.716, 2.761a.......... Adds provision for establishment of separate
hearings; no change to provision on
consolidation of proceedings.
2.318................................ 2.717.................. None.
2.319................................ 2.718, 2.1233(e)....... Clarified; consolidates several provisions
relating to authority of presiding officer.
2.320................................ 2.707.................. None.
2.321................................ 2.721.................. None.
2.322................................ 2.722.................. None.
2.323................................ 2.730.................. Clarified and expanded to address motions for
referral, reconsideration and certification.
2.324................................ 2.731.................. None.
2.325................................ 2.732.................. None.
2.326................................ 2.734.................. None.
2.327................................ 2.750.................. Removed subsection on provision of free
transcripts.
2.328................................ 2.751.................. None.
2.329................................ 2.752, 2.751a.......... Consolidates and adds provisions on purpose and
objectives of prehearing conferences.
2.330................................ 2.753.................. None.
2.331................................ 2.755.................. None.
2.332................................ NA..................... New section on case scheduling and management.
2.333................................ 2.757.................. None.
2.334................................ NA..................... New section setting forth schedules for
proceedings.
2.335................................ 2.758.................. None.
2.336................................ NA..................... New requirement for disclosure of materials.
2.337................................ NA..................... New section on Alternative Dispute Resolution
(ADR).
2.338................................ 2.761.................. None.
2.339................................ 2.760a, 2.764.......... Consolidates provisions on effectiveness of
initial decisions.
2.340................................ 2.786.................. Clarified, codifies Commission practice of
discretionary review of requests for
interlocutory appeals.
2.341................................ 2.788.................. None.
2.342................................ 2.763.................. None.
2.343................................ 2.770.................. None.
2.344................................ 2.771.................. NRC staff not provided additional time to
respond to petitions for reconsideration.

[[Page 19622]]

2.345................................ 2.772.................. Clarified; deletes authority to extend time for
Commission review of Director's Decisions under
Sec. 2.206.
2.346................................ 2.780.................. None.
2.347................................ 2.781.................. None.
2.390................................ 2.790.................. None.
----------------------------------------------------------------------------------------------------------------

(b) Section 2.308--Secretary's Treatment of Requests for Hearing/
Petitions to Intervene.
Proposed Sec. 2.308 is a ``housekeeping provision'' that describes
the action the Secretary of the Commission would take when requests for
hearing/petitions to intervene, contentions, answers and replies are
received. Under this section, the Secretary would not take action on
the merits or substance of the pleadings but would forward the papers
to the Commission or to the Chief Judge of the Atomic Safety and
Licensing Board Panel, as appropriate, for further action.
(c) Section 2.309--Hearing Requests, Petitions to Intervene,
Requirements for Standing and Contentions.
Proposed Sec. 2.309 establishes the basic requirements for all
requests for hearing or petitions to intervene in any NRC adjudicatory
proceeding. The section incorporates the basic standing and ``one good
contention'' requirements of existing 10 CFR 2.714 and applies those
requirements to all NRC adjudicatory proceedings, whether formal
(subpart G), informal (subparts L, M and N), hybrid (subpart K) or
``fast track'' (subpart N).
Standing. The requirements to establish standing for intervention-
as-of-right, as set forth in existing Sec. 2.714, would continue under
proposed Sec. 2.309. For intervention in the proceeding on the
licensing of the HLW geologic repository, an additional factor--
relating to the petitioner's compliance with prehearing disclosure
requirements under subpart J--must be considered in any ruling on
intervention. Otherwise, the Commission expects its boards and
presiding officers to look to the ample NRC caselaw on standing to
interpret and apply this standard.
Discretionary Intervention. Under proposed Sec. 2.309, the
presiding officer would consider admitting the petitioner as a matter
of discretion where the petitioner fails to establish his or her
standing to intervene as-of-right, if the petitioner requests such
consideration. In Sec. 2.309(b)(2), the Commission proposes to codify
the discretionary intervention factors that were established in its
Pebble Springs decision (Portland General Electric Co. (Pebble Springs
Nuclear Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976)) and to
require the presiding officers or licensing boards to apply those
factors in all cases where a petitioner is found to lack standing to
intervene as-of-right and the petitioner, in the initial petition, has
asked for such consideration and addressed the pertinent factors. In
this way, the Commission hopes to ``underscore the fundamental
importance of meaningful public participation in (its) adjudicatory
process,'' Pebble Springs, 4 NRC at 615, by allowing the participation
of persons who have shown an ability to contribute to the development
of the evidentiary record, even though they cannot show the traditional
interest in the proceeding.
The Commission requests public comment and suggestions on whether
the standard for discretionary intervention should be extended by
providing an additional alternative for discretionary intervention in
situations when another party has already established standing and the
discretionary intervenor may ``reasonably be expected to assist in
developing a sound record.''
The Commission also requests public comments on whether, as an
alternative to codification of the six-part Pebble Springs standard for
discretionary intervention, the Commission should adopt a simpler test
for permitting discretionary intervention and the nature of such a
standard. Commenters advocating a simpler standard should address how
their alternative requirements would help ensure that proceedings are
conducted in a timely fashion and are not made unduly complex by
multiple intervenors.
Timing of Requests for Hearing/Petitions to Intervene and
Contentions. Proposed Sec. 2.309 established the requirements for the
filing of petition/hearing requests, the content of the request, and
the standards that must be met for a late-filed request. Different
requirements are proposed for the timely filing of requests for
hearings/petitions, depending on whether formal notice of the
proceedings and opportunity for hearing are published in the Federal
Register. For those proceedings for which a Federal Register notice has
been published, the requirements are much the same as those in existing
10 CFR 2.714. For those proceedings for which a Federal Register notice
is not published, the requirements are derived from existing
Sec. 2.1205 but also provide for publication of notice on the NRC
Website, http://www.nrc.gov. The Commission already makes available on
the NRC Website a broad range of information, including receipt of
applications for licenses and license amendments, notices of
availability of NRC reports, and notices of availability of NRC safety
evaluations. See, e.g., 64 FR 48942; September 9, 1999. Internet access
is becoming increasingly available to the general public. The
Commission believes that, as a practical matter publication of notice
on the NRC Website provides at least as much access to the notice for
the public as publication in the Federal Register. However, notice on
the NRC Website costs substantially less than publication in Federal
Register, and can be done in a more timely fashion than publication in
the Federal Register. Accordingly, the Commission proposes that where
Federal Register notice is not required by statute or regulation, any
notice of agency action (for which an opportunity for hearing may be
required) published on the NRC Website initiates the 45-day period in
which timely requests for hearing must be filed. The Commission
requests public comment on this proposal, including whether there are
other notification methods that the NRC could utilize to provide timely
notice of licensing actions which are not required to be noticed in the
Federal Register.
Regardless of whether notice of the proceeding and opportunity for
hearing is required to be published in the Federal Register, all
proposed contentions must be filed as part of the initial request for
hearing/petition to intervene. Recognizing the potential need for more
time for preparation of the request/petition and contentions, the
Commission proposes to provide a minimum of 45 days from the date of
publication (either in the Federal Register or on the NRC Website) of
the notice of opportunity to request a hearing for the filing of
requests/petitions to intervene and contentions. Although this proposal
represents a significant change from existing

[[Page 19623]]

requirements, the Commission believes this proposal will expedite
proceedings in a manner that is fair to all interested stakeholders.
The Commission requests public comment on this proposal, in particular,
whether the proposed approach should be rejected and something closer
to the current NRC practice be retained, viz., filing of petitions for
hearing within thirty (30) days of notice, and filing of contentions
later. The Commission also requests public comment and suggestions on
whether it should allow seventy-five (75) days from notice of
opportunity for hearing for filing of contentions, or whether some
other time frame for requesting a hearing and submitting contentions
should be established. Late-filed requests for hearing/petitions will
continue to be governed by the criteria set forth in existing
Sec. 2.714.
Contentions. Proposed Sec. 2.309(c) requires that the petition to
intervene include the contentions that the petitioner proposes for
litigation along with documentation and argument supporting the
admission of the proffered contentions. Paragraphs (c)(1) and (2) of
Sec. 2.309 incorporate the longstanding contention support requirements
of existing 10 CFR 2.714--no contention will be admitted for litigation
in any NRC adjudicatory proceeding unless these requirements are met.
By continuing to impose these contention support requirements, the
Commission seeks to ensure that the adjudicatory process is used to
address real, concrete, specific issues that are appropriate for
litigation.
A significant change, relative to existing requirements, is that
the requirement to proffer specific, adequately supported contentions
in order to be admitted as a party to the proceeding would be extended
to informal proceedings under subpart L. Under the existing subpart L,
petitioners need only describe ``areas of concern about the licensing
activity that is the subject matter of the proceeding'' (10 CFR
2.1205(e)(3)). This sometimes leads to protracted ``paper'' litigation
over ill-defined issues and the resulting development of an
unnecessarily large, unfocused evidentiary record for decision. The
Presiding officer is then burdened with the need to sift through the
record to identify the basic issues and pertinent evidence necessary
for a decision. The requirement to have specific contentions with a
supporting statement of the facts alleged or expert opinion that
provide the bases for them in all hearings should focus litigation on
real, concrete issues and result in a better, more understandable
record for decision.
Appropriate Hearing Procedures. Proposed Sec. 2.309(g) requires
that the request for hearing/petition to intervene address the question
of the type of hearing procedures (e.g., formal hearings under subpart
G, informal hearings under subpart L, ``fast track'' informal
procedures under subpart N) that should be used for the proceeding.
This is not a requirement for admission as a party to the proceeding,
but a requestor/petitioner who fails to address the hearing procedure
issue would not later be heard to complain in any appeal of the hearing
procedure selection ruling. The Commission requests public comment on
whether, if the Commission adopts the alternative proposal that
requests for hearing be filed within thirty (30) days of appropriate
notice (see discussion above under ``Timing of Requests for Hearing/
Petitions to Intervene and Contentions''), but that contentions be
filed later (e.g., within 75 days of such notice) the Commission should
require the petitioner to set forth its views on appropriate hearing
procedures at the deadline for filing contentions, rather than in the
petition/request for hearing.
State and Local Governments and Affected Indian Tribes. Proposed
Sec. 2.309(d)(2) addresses the participation of State and local
governments and affected Indian Tribes as parties in NRC adjudicatory
proceedings. A significant change, relative to existing requirements in
Sec. 2.715(c), is that governments and affected Tribes would be
explicitly relieved of the obligation to demonstrate standing in order
to be admitted as a party to the proceeding. The proposed rule
continues the existing requirement in Sec. 2.1014(c) that governments
and affected Tribes who wish to intervene as parties in a geological
waste repository proceeding must file at least one good contention.
Answers and Replies. Proposed Sec. 2.309(h) allows the applicant or
licensee and the NRC staff twenty-five (25) days to file written
answers to requests for hearing/petitions to intervene and contentions,
and permits the petitioner to file a written reply to the applicant/
licensee and staff answers within 5 days after service of any answer.
No other written answers or replies will be entertained. The Commission
seeks public comment on whether the proposed time limits for replies
and answers should be expanded.
(d) Section 2.310--Selection of Hearing Procedures.
A very significant part of this hearing procedure rulemaking is the
development of criteria for the selection of the hearing procedures to
be used for the proceeding. These criteria set the course for the rest
of the hearing by specifying the use of particular types or categories
of procedures (e.g., formal, informal, informal-fast track, hybrid) for
the remainder of the proceeding.
In developing the hearing procedure selection criteria, the
Commission recognized that, with only a single exception, it has broad
authority and substantial flexibility to choose among formal trial-type
procedures, informal oral or written hearing procedures, or any
combination of formal and informal hearing procedures. The Commission
seeks specific comments and suggestions on the matter of criteria for
the selection of cases where the use of formal hearing procedures would
be of benefit.
(i) Formal Hearing Procedures.
Uranium Enrichment Facilities. The single exception to the
Commission's broad authority to select hearing procedures involves
proceedings on licensing the construction and operation of uranium
enrichment facilities. Section 193 of the Atomic Energy Act of 1954, as
amended, requires that hearings on uranium enrichment facility
construction and operation be ``on the record'', thus requiring formal
trial-type hearing procedures to be used. Proposed Sec. 2.310(b)
reflects this requirement by specifying that proceedings on licensing
the construction and operation of uranium enrichment facilities must be
conducted using the formal hearing procedures of subpart G.
Enforcement Matters. In its Staff Requirements Memorandum dated
July 22, 1999, on SECY-99-006, Reexamination of the NRC Hearing
Process, the Commission noted that formal hearing procedures would seem
to be appropriate for hearings on enforcement actions. Several
participants in the October 1999 hearing process workshop agreed,
noting that formal hearing procedures would give the entity subject to
the proposed enforcement action the opportunity to fully confront the
proponent of the proposed enforcement action. The Commission believes
that the formal hearing procedures of subpart G are appropriate for
application in enforcement cases and proposes, in Sec. 2.310(a) of the
proposed rule, to continue to require the use of formal procedures in
hearings on enforcement actions unless all parties agree to the use of
informal procedures. The Commission requests comments on the proposal
to require the application of formal hearing procedures in hearings
involving enforcement matters and views on whether and when to allow

[[Page 19624]]

the use of informal hearing procedures for these matters.
High Level Waste Repository Licensing. For many years, the AEC and
the NRC assumed that the Atomic Energy Act required formal agency
hearings despite the fact that assumption had never been reduced to a
definitive holding. Consistent with that assumption, in 1978 the NRC
declared that the hearing it would hold on an application to construct
and operate a repository for high level waste (HLW) would be formal. In
final rules published in 1981, now codified at 10 CFR part 2, subpart
J, the Commission provided for a mandatory formal hearing at the
construction authorization stage and for an opportunity for a formal
hearing before authorizing receipt and possession of high level waste
at a geologic repository. Subsequently, Congress enacted the Nuclear
Waste Policy Act of 1982, 42 U.S.C. 10101 et seq. That law includes no
specific hearing requirements. Instead, it seems to contemplate, at
Section 114, that the NRC will apply existing laws applicable to the
construction and operation of nuclear facilities. In sum, there is no
statutory requirement for a formal hearing on a high-level waste
repository, but without a rule change, the NRC's regulations would
require a formal hearing.
Although the Commission seeks to use more informal procedures for
its hearings, the Commission has decided that the formal hearing
procedures of subpart G should be used in proceedings for the initial
authorization to construct a high-level waste repository, and
proceedings for initial authorization to receive and possess high-level
waste at a high level waste repository. The initial authorization of
construction of a high-level waste repository, and the initial
authorization to receive and possess high-level waste is likely to be
highly controversial and involve a large number of complex issues, and
thus fulfills one of the criteria in proposed Sec. 2.310(c) for
discretionary use of subpart G formal hearing procedures. Moreover, the
Commission has long taken the position that it would provide a formal
hearing for repository licensing, thereby raising public expectations.
A change in Commission position to permit the use of informal
procedures authorizing construction of a HLW repository and the receipt
and possession of HLW at the repository would not advance public
confidence in the Commission's decisionmaking process with respect to
repository licensing. Based on these considerations, the Commission
intends to continue to require, in Sec. 2.310(e) of the proposed rule,
that the initial application for construction of a HLW repository, and
initial authorization to receive and possess HLW at the repository use
formal hearing procedures of subpart G.
A balancing of these factors leads the Commission to a different
conclusion with respect to hearing procedures for subsequent amendments
to the authorization for the construction of a HLW repository, and for
amendments of the authorization to receive and possess high-level
waste. The public expectation of formal hearings likely extends only to
the initial authorizations permitting construction and operation of the
repository. Most important issues with respect to the technical
feasibility and appropriateness of siting of the HLW repository are
associated with initial construction licensing. Issues with respect to
the adequacy of construction and the proposals for operation of the
repository will be dealt with in the initial authorization for
construction and operation--not subsequent changes to those
authorizations. The Commission believes that it should retain
flexibility to chose which hearing procedures to use in subsequent
changes to the authorizations permitting construction and operation of
any HLW repository. Accordingly, Sec. 2.310 of the proposed rule
provides that amendments to the construction authorization for the HLW
repository, and amendments to the authority to receive and possess HLW
should be subject to the same criteria as other proceedings in
determining what hearing procedures will be used. The Commission
welcomes public comment on this subject.
Complex Issues in Reactor Licensing. Reactor licensing proceedings
can sometimes involve very complex technical safety and environmental
issues, the resolution of which would clearly benefit from the
application of more formal hearing procedures, including the use of
cross-examination by the parties or the parties' experts. Accordingly,
Sec. 2.310(c) includes a criterion that would call for the use of the
formal hearing procedures of subpart G in those reactor licensing
proceedings that involve a large number of complex issues which the
presiding officer determines can best be resolved through the
application of formal hearing procedures. The Commission requests
public comments on the appropriateness of this criterion, and
representative examples of the type of ``complex issues'' that would
benefit from the use of formal hearing procedures. The Commission also
requests public comment on whether this criterion should be modified to
instead provide for subpart G formal hearings in: (i) Initial power
reactor construction permit proceedings, (ii) initial operating license
proceedings, (iii) combined license issuance proceedings under 10 CFR
part 52, subpart C, and (iv) hearings associated with authorizations to
operate under a combined license under 10 CFR 52.103.
(ii) Informal Hearing Procedures.
Expansion of Spent Fuel Storage Capacity. Existing subpart K
contains ``hybrid'' hearing procedures for use in proceedings on the
expansion of spent fuel storage capacity at civilian nuclear power
reactors. Subpart K provides for the use of the hybrid hearing
procedures upon the request of any party. The Commission proposes to
retain subpart K and, by the hearing procedure selection provision in
Sec. 2.310(d), make the hearing procedures of subpart K available for
use in any proceeding on the expansion of spent fuel storage capacity
at a power reactor.
License Transfers. Existing subpart M contains informal hearing
procedures for use in proceedings involving reactor or materials
license transfers. Subpart M requires the use of its hearing procedures
for all license transfer proceedings for which a hearing request has
been granted unless the Commission directs otherwise. The Commission
proposes to retain subpart M and, by the hearing procedure selection
provision in Sec. 2.310(f), specify the use of subpart M hearing
procedures in license transfer proceedings.
Other Proceedings. In Sec. 2.310(g), the Commission proposes to
apply the informal hearing procedures of the new subpart L to all other
proceedings--i.e. proceedings involving hearings on the grant, renewal,
licensee-initiated amendment or termination of licenses and permits
subject to parts 30, 32 through 35, 36, 39, 40, 50, 52, 54, 55, 61, 70
and 72. Under this provision, subpart L procedures would be used, as a
general matter, for hearings on power reactor construction permit and
operating license applications under parts 50 and 52, power reactor
license renewal applications under part 54, power reactor license
amendments under part 50, reactor operator licensing under part 55, and
nearly all materials and spent fuel licensing matters. This would be a
significant change from current hearing practice for reactor licensing
matters. Under longstanding practice, proceedings on applications for
reactor construction permits, operating licenses and operating license
amendments have used the formal hearing procedures of existing subpart
G. Similarly, in the Statement of

[[Page 19625]]

Considerations for the 1991 rule on reactor license renewal, the
Commission stated that it would provide an ``opportunity for a formal
public hearing'' on reactor license renewal applications (56 FR 64943,
64946; December 13, 1991). Under the proposed rule, reactor licensing
proceedings will generally use informal hearing procedures. The
procedures of subpart L could also be applied in hearings involving
enforcement matters if all parties agree.
Fast Track Procedures. In Sec. 2.310(h), the Commission proposes to
apply the informal ``fast track'' hearing procedures of new subpart N
in any proceeding (other than those designated in Sec. 2.310(a)-(f) as
requiring other procedures) in which the hearing is estimated to take
no more than 2 days to complete or where all parties agree to the use
of the ``fast track'' hearing procedures. The ``fast track'' procedures
of subpart N may be particularly useful for reactor operator licensing
cases or for small material licensee cases where the parties want to be
heard on the issues in a simple, inexpensive, informal proceeding that
can be conducted quickly before an independent decisionmaker. The
Commission requests comments and suggestions on the appropriate
criteria for the use of subpart N.
(e) Section 2.311--Interlocutory Review of Rulings on Requests for
Hearing/Petitions to Intervene and Selection of Hearing Procedures.
Proposed Sec. 2.311 continues unchanged the provision in
Sec. 2.714a that limits interlocutory appeal of rulings on requests for
hearing and petitions to intervene to those that partly or completely
grant or deny a petition to intervene.
(f) Section 2.314--Appearance and representation.
Proposed Sec. 2.314 simplifies and expands the existing provisions
in Secs. 2.713 and 2.1215 on appearance and representation in NRC
adjudications.
(g) Section 2.317--Separate hearings; consolidation of proceedings.
Proposed Sec. 2.317 expands upon the general concept in existing
Sec. 2.761a that separate hearings may be appropriate in certain
instances. In addition, this section incorporates without change the
provisions for consolidation of proceedings currently in Sec. 2.716.
(h) Section 2.318--Commencement and termination of jurisdiction of
presiding officer.
Proposed Sec. 2.318 continues without change the existing
provisions in Sec. 2.717 with respect to the commencement and
termination of the jurisdiction of a presiding officer. A conforming
change is made to Sec. 2.107, ``Withdrawal of application'' to clarify
that the presiding officer should dismiss a proceeding when an
application has been withdrawn before a notice of hearing has been
issued.
(i) Section 2.323--Motions.
Proposed Sec. 2.323 incorporates the substance of existing
Sec. 2.730 in subpart G on the general form, content, timing, and
requirements for motions and responses to motions. The Commission
requests public comment on whether Sec. 2.323(a) should be more
specific with respect to the time limit for filing all motions by
specifying a time limit of ten (10) days for filing of motions,
beginning from the action or circumstance that engenders the motion.
The proposed Sec. 2.323(e) also departs from existing Sec. 2.730 by
establishing a standard for evaluating motions for reconsideration--
viz., compelling circumstances, such as ``existence of a clear and
material error in a decision, which could not have reasonably been
anticipated, that renders the decision invalid'' (this standard is also
reflected in proposed Sec. 2.344(b)). The Commission requests public
comment on whether this ``compelling circumstances'' standard in the
proposed standard should be adopted or eliminated from the final rule.
Proposed Sec. 2.323 also addresses referral of rulings and certified
questions by the presiding officer to the Commission. With regard to
referrals, proposed Sec. 2.323(f) has been expanded to provide for
referrals of decisions or rulings where the presiding officer
determines that the decision or ruling involves a novel issue that
merits Commission review at the earliest opportunity. The proposed
section also differs from the existing requirements by allowing any
party to file with the presiding officer a petition for certification
of issues for early Commission review and guidance. This is consistent
with the Commission's direction in the 1998 Statement of Policy on
Adjudicatory Proceedings that issues or rulings involving novel
questions which would benefit from early Commission guidance be
certified to the Commission.
(j) Section 2.332--General Case Scheduling and Management.
Proposed Sec. 2.332 addresses general case scheduling and
management. It would require a presiding officer to consult with the
parties early in the proceeding in order to set schedules, establish
deadlines for discovery and motions, where appropriate, and set the
groundrules for the control and management of the proceeding. The
section also addresses integration of the NRC staff's preparation of
its safety and environmental review documents into the hearing process
schedules. The Commission requests comment on the case management
provisions proposed in Sec. 2.332 and welcomes suggestions for
additional case management techniques.
(k) Section 2.334--Schedules for Proceedings.
Proposed Sec. 2.334 codifies the guidance in the Commission's 1998
Statement of Policy on the Conduct of Adjudicatory Proceedings that
suggested that presiding officers should establish and maintain
``milestone'' schedules for the completion of hearings and the issuance
of initial decisions. The section requires a presiding officer to
establish a hearing schedule, and to notify the Commission if there are
slippages that would delay the issuance of the initial decision more
than 60 days from the date established in the schedule. The
notification must include an explanation of the reasons for the delay
and a description of the actions, if any, that can be taken to avoid or
mitigate the delay.
(l) Section 2.336--General Discovery.
Proposed Sec. 2.336 would impose a disclosure requirement on all
parties (and the NRC staff) in all proceedings under Part 2, except for
proceedings using the procedures of Subparts G and J. The discovery
required by Sec. 2.336 constitutes the totality of the discovery that
may be obtained. This generally applicable discovery provision requires
each party to disclose and/or provide the identity of witnesses and
persons with discoverable information, pertinent documents, and
pertinent applicant-NRC correspondence. The duty of disclosure
continues over the pendency of the proceeding. Section 2.336 also
authorizes the presiding officer to impose sanctions against parties
who fail to comply with this general discovery provision, including
prohibiting the admission into evidence of documents or testimony that
a party failed to disclose as required by this section unless there was
good cause for the failure (this sanction is similar to that provided
in the rules of practice of the Environmental Protection Agency, 40 CFR
22.19(a), 22.22(a)).
(m) Section 2.337--Settlement of Issues; Alternate Dispute
Resolution.
Proposed Sec. 2.337 addresses settlement and use of alternate
dispute resolution in NRC proceedings. The Commission has long
encouraged the resolution of contested issues in licensing and
enforcement proceedings through settlement, consistent with the hearing
requirements of the Atomic Energy Act. See Statement of Policy on
Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (45 FR 28533;
May 27, 1981);

[[Page 19626]]

Policy Statement on Alternative Means of Dispute Resolution (57 FR
36678; Aug. 14, 1992). The proposed rule includes a new provision on
settlement that consolidates and amplifies existing rules pertaining to
settlement (10 CFR 2.203, 2.,759, 2.1241). The proposed rule describes
the required form and content of settlement agreements and provides
guidance on the use of settlement judges as mediators in NRC
proceedings. The Commission has previously endorsed the appropriate use
of settlement judges in Rockwell Int'l Corp., CLI-90-05, 31 NRC 337
(1990). The proposed rule is modeled on a provision in the Model
Adjudication Rules prepared in 1993 for the Administrative Conference
of the United States (ACUS). See Cox, The Model Adjudication Rules, 11
T.M. Cooley L. Rev. 75 (1994). The Commission intends no change in the
bases for accepting a settlement by the proposed rule.
As suggested by several workshop participants, the Commission is
also considering providing further guidance on the use of alternative
dispute resolution (ADR) as part of its hearing procedures. This
objective is also consistent with the NRC's continuing participation in
the activities of the Interagency Working Group on Alternative Dispute
Resolution chaired by the Attorney General, as well as with the
Administrative Dispute Resolution Act of 1996 (ADR Act). The Working
Group was established to facilitate the implementation of a May 1,
1998, memorandum from President Clinton that directed all executive
departments and Federal agencies to develop dispute resolution
programs.
ADR can be defined as any technique that results in the
conciliatory resolution of a dispute, including facilitation,
mediation, fact finding, minitrials, early neutral evaluation, and
arbitration. Although ``unassisted'' negotiation to resolve disputes
has long been effectively used in resolving disputed matters before NRC
tribunals, the focus of the ADR Act, and the efforts of the Interagency
Working Group, has been on ``formal'' ADR techniques that require the
use of a third party neutral. The Commission's consideration of ADR
techniques for use in the hearing process also focuses on these formal
ADR techniques. Although the Commission believes that a broad array of
ADR options could be made available to the parties in an NRC
proceeding, it anticipates that ``non-binding'' techniques, such as
mediation, would be the most appropriate. For example, mediation is a
process by which an impartial third party--a mediator--facilitates the
resolution of a dispute by promoting a voluntary agreement by the
parties to the dispute. The parties are free to develop a mutually
acceptable resolution to their dispute. The role of the mediator is to
help the parties reach this resolution. The mediator does not decide
the case or dictate the terms of a settlement.
The Commission believes that the use of ADR has the potential to
eliminate unnecessary litigation of licensing issues, shorten the time
that it takes to resolve disputes over issues, and achieve better
resolution of issues with the expenditure of fewer resources. However,
because of the Commission's responsibility to make required public
health and safety findings, the use of ADR may not be appropriate in
all circumstances.
The Commission seeks public comment on the text of the proposed
rule as well as on the broader issue of the use of ADR in NRC
proceedings. In this regard the Commission invites comment on the
following specific questions:
Should the Commission formally provide for the use of ADR
in its hearing process?
Should the use of ADR be codified in the Commission's
regulations or provided for in some other manner, such as a policy
statement?
At what stage of the hearing process should an opportunity
for ADR be provided?
What types of issues would be amenable to resolution
through ADR? What types of issues should not be considered for
resolution through ADR?
How should the use of ADR operate in the context of the
hearing process? Who could propose its use? What should be the role of
the presiding officer? Who should be parties to the ADR process? What
should be the role of the NRC staff in the ADR process? What happens to
the proceeding while the ADR process is being implemented? How would
the resolution of a dispute be incorporated into the hearing process?
What should the role of the Commission be in the ADR process?
Should there be a source of third-party neutrals other
than settlement judges appointed from the members of the Atomic Safety
and Licensing Board Panel to assist in the ADR process, such as the
roster of neutrals established by the U.S. Institute for Conflict
Resolution or the National Energy Panel of the American Arbitration
Association? How should such individual neutrals be selected? What
arrangements should be made to compensate neutrals for their services?
(n) Section 2.340--Review of Decisions and Actions of a Presiding
Officer.
The proposed Sec. 2.340 on Commission review of decisions and
actions of the presiding officer is, in essence, a restatement of
existing Sec. 2.786. However, paragraph (f) makes clear what has been
in fact practice since adoption of the current appellate procedures in
1991; i.e., the Commission will entertain in its discretion petitions
by a party for review of an interlocutory matter in the circumstances
described in paragraph (f). Minor changes would also be made to give
guidance on the form and content of briefs, e.g., the proposed rule
would increase the number of pages permitted for a petition for review
of a decision of a presiding officer, and any replies to the petition,
from the current limit of ten (10) pages to twenty-five (25) pages.
(o) Section 2.344--Petition for Reconsideration.
Proposed Sec. 2.344 contains largely unchanged the provisions in
existing Sec. 2.771, but would no longer provide the NRC staff with two
additional days to file a reply brief; the NRC staff would be treated
as any other party and have ten (10) days to file a reply brief to a
petition for reconsideration.
(2) Subpart G--Sections 2.700-2.712
The Commission proposes to revise Subpart G, which currently sets
forth the rules of general applicability to NRC adjudications and
contains the formal adjudicatory procedures. Under the proposed
revisions, Subpart G would set forth rules specifically applicable to
formal adjudicatory proceedings, such as those appropriate to
enforcement proceedings and to more complex reactor proceedings
involving numerous issues. In large part, the existing provisions in
the rules of general applicability have been restated in Subpart G
without change except for renumbering and internal conforming reference
renumbering. Some provisions have been amended to better reflect
current Commission policy regarding the conduct of adjudicatory
proceedings and current Federal practice, for example, with respect to
discovery. As discussed above, numerous provisions of current subpart G
would be relocated to the new Subpart C. In addition, several
provisions have been removed. Following is a section-by-section
analysis:
(a) The proposed Sec. 2.700 would reflect the revised description
of the applicability of this Subpart to a limited set of proceedings;
the Commission requests public comment on whether

[[Page 19627]]

the set of proceedings for which formal hearings under this Subpart
would be afforded (see above in I.E. Summary and General Questions, and
II.A Overview) should be modified. In particular, the Commission
requests public comment on whether subpart G should be used in all
initial power reactor construction permit and operating license
proceedings rather than in reactor licensing proceedings involving a
``large number'' of ``complex issues.'' Section 2.700a continues,
without change, the possible exceptions to the applicability of the
procedures to be considered by the Commission.
(b) The current Sec. 2.705, which provides for the filing of an
answer to a notice of hearing, would be removed. Experience has shown
this provision to be largely superfluous. For the same reason,
Sec. 2.751a, which provides for a special prehearing conference in
connection with construction permit and operating license proceedings,
and Sec. 2.761a, which provides for separate hearings and decisions,
would be removed. The provisions of Sec. 2.752, which would be
redesignated as Sec. 2.318, provide for the conduct of a prehearing
conference to accomplish the same purposes as those in Sec. 2.751a.
Therefore, there is no apparent reason to retain a duplicative
requirement in Sec. 2.751a.
(c) The existing provisions of Sec. 2.765, immediate effectiveness
of initial decision directing issuance or amendment of a license under
Part 61 of this chapter, would be relocated to the revised Subpart L,
which sets forth the provisions applicable to informal proceedings. The
Commission is proposing to conduct proceedings regarding licensing
matters under part 61 in accordance with subpart L. For that reason,
this provision is pertinent to those provisions as opposed to those
applicable to formal proceedings.
(d) Section 2.790 in the current rule would be redesignated in
proposed subpart C as Sec. 2.390. This regulation sets forth provisions
of generic applicability concerning the public's access to information
which apply irrespective of whether there is an NRC proceeding.
(e) Proposed Sec. 2.702 is fundamentally a restatement of former
Sec. 2.720(a)--(h)(1). The provisions of former Sec. 2.720(h)(2), which
pertain to discovery against the NRC, has been retained and combined
with former Sec. 2.744 in a new Sec. 2.709. This new section now sets
forth in one place, all regulations governing discovery against the NRC
in the Commission's formal administrative proceedings under Subpart G.
The need for formal discovery against the NRC staff should be minimal,
in view of the Commission's general policy of making all available
documents public (see, e.g., 10 CFR 9.15), subject only to limited
restrictions (e.g., those needed to protect enforcement, proprietary
information, etc. under 10 CFR 9.17). Except for the foregoing, the
substantive aspects of the former regulations are unchanged.
(f) The proposed Sec. 2.703 would restate, without revision,
Sec. 2.733 regarding the examination and cross-examination of expert
witnesses.
(g) The Commission proposes new Secs. 2.704 and 2.705 that would
revise the general provisions for discovery, except for discovery
against the NRC. The new regulations would revise the existing
provisions of Sec. 2.740 to better reflect the provisions of Rule 26 of
the Federal Rules of Civil Procedure, providing for the prompt and open
disclosure of relevant information by the parties, without resort to
formal processes, except if the need for intercession by the Presiding
officer becomes necessary. Section 2.704 sets forth the disclosures
that all parties must make to other parties; a party need not file a
request for the information required to be disclosed under Sec. 2.704.
Section 2.705 sets forth the additional methods of discovery that are
permitted. It is expected that the new regulations would eliminate or
substantially limit the need for formal discovery in adjudicatory
proceedings, and at the same time, make explicit the presiding
officer's authority to limit the scope and quantity of discovery in a
particular proceeding, should the need arise. Proposed Secs. 2.706,
2.707 and 2.708 would continue without change, the provisions of
current Secs. 2.740a, 2.740b, 2.741 and 2.742, regarding depositions,
interrogatories, production of documents, and admissions.
(h) Section 2.709 would incorporate the formerly separate
provisions of Secs. 2.720(h)(2) and 2.744 providing for discovery
against the NRC staff .
(i) Section 2.710 would generally retain the current provisions of
Sec. 2.749 regarding summary disposition. The proposed rule would
expand the presiding officer's discretion not to consider a motion for
summary disposition by providing that the presiding officer need not
consider the summary disposition motion unless he or she determines
that resolution of the motion will serve to expedite the proceeding.
Alternatively, the Commission could adopt a standard whereby the
presiding officer need not consider a summary disposition motion unless
the motion would ``substantially reduce the number of issues to be
decided or otherwise expedite the proceeding.'' The Commission requests
public comment on whether the revised standard for consideration of
summary disposition motions in the proposed rule should be adopted, or
whether the alternate standard set forth above should instead be
adopted.
(j) The proposed Sec. 2.711 would restate the requirements in
current Sec. 2.743 without change.
(k) The proposed Sec. 2.712 would continue, without change, the
provisions of Sec. 2.754 regarding the requirement for the submission
of proposed findings of fact and conclusions of law following
completion of a formal hearing.
(l) The proposed Sec. 2.713 would restate the requirements in
current Sec. 2.760, ``Initial decision and its effect,'' without
change.
(3) Subpart J
The Commission proposes a number of changes to Secs. 2.1000,
2.1001, 2.1010, 2.1012, 2.1013, 2.1014, 2.1015, 2.1016, 2.1018, 2.1019,
2.1021, and 2.1023. The changes are intended: (i) As conforming changes
to correct references to rules of general applicability in existing
subpart G that are being transferred to the proposed subpart C, and
(ii) to eliminate redundant or duplicate provisions in Subpart J that
would be covered by the generally applicable provisions in the proposed
subpart C. The Commission requests comments or suggestions on these or
other changes to subpart J that would serve these intents.
(4) Subpart K
The Commission proposes several simple changes to Secs. 2.1109 and
2.1117. In addition, Sec. 2.1111 on discovery would be removed because
discovery for subpart K hybrid hearings will be addressed by the
general discovery provisions of subpart C. These proposed changes are
intended: (1) To conform subpart K to the rules of general
applicability of subpart C, particularly with regard to the need to
request hybrid hearing procedures in the petition to intervene, and (2)
to make it clear that a hearing on any contentions that remain after
the oral argument under subpart K will be conducted using the informal
hearing procedures of proposed subpart L.
(5) Subpart L--Sections 2.1200-2.1212
Although the informal hearing procedures of existing subpart L have
been in place for a number of years, their implementation has shown
that some aspects are cumbersome and inefficient in the development of
a record. Under the existing subpart L, the parties sometimes devote
substantial time and effort to litigation over the specific procedures
to be used rather

[[Page 19628]]

than to the substantive issues. In addition, the absence of a specific
contention requirement has sometimes resulted in the development of a
paper record that is not effectively focused on the issues in dispute
but rather, is burdened with extraneous material that makes the
formulation of a decision unnecessarily difficult and time consuming.
To address these problems, the Commission proposes to replace the
existing subpart L in its entirety. The provisions of this new subpart
L may be applied to all adjudicatory proceedings conducted under the
authority of the Atomic Energy Act of 1954, as amended, the Energy
Reorganization Act, and 10 CFR part 2 except proceedings on the
licensing of the construction and operation of a uranium enrichment
facility. The proposed new informal hearing procedures would be
patterned after the existing subpart M provisions on license transfers
and would shift the focus to informal oral hearings (e.g., record
developed through oral presentation of witnesses who are subject to
questioning by the presiding officer to the extent necessary to ensure
a complete record for decisionmaking), although all parties could agree
to conduct the hearing based solely upon written submissions. In
addition, a specific contention requirement would apply through subpart
C; the Commission is proposing this requirement primarily to help focus
the informal oral hearings--although such a requirement would also
serve to focus hearings conducted solely on written submissions. The
Commission requests public comment on the advantages and disadvantages
of shifting the focus of subpart L to informal oral hearings, including
the proposed requirement for submission of contentions, and the
opportunity to pose questions indirectly to witnesses by proffering
proposed questions to the presiding officer. The Commission is also
considering whether the proposed rule should be further modified to
provide explicitly for the option of the Commission or the Chief
Administrative Judge to establish three-judge panels on a case-by-case
basis, for example in cases where there are likely to be both
significant technical matters as well as significant legal issues to be
resolved in the hearing. Three-judge panels would be available as an
option in oral hearings as well as hearings based solely upon written
submissions. The Commission requests public comment on the desirability
of appointing three-judge panels in informal hearings under subpart L,
and the circumstances in which appointment of such panels would be
useful.
Following is a section-by-section analysis of proposed subpart L:
(a) Section 2.1200--Scope of Subpart.
The proposed Sec. 2.1200 would indicate that subpart L may be
applied to all NRC adjudicatory proceedings except proceedings on the
licensing of uranium enrichment facilities, proceedings on applications
for a license to construct a high-level radioactive waste repository
noticed under Secs. 2.101(f)(8) or 2.105(a)(5), and proceedings on
applications for a license to receive and possess high-level
radioactive waste repository.
(b) Section 2.1201--Definitions.
The proposed Sec. 2.1201 would indicate that subpart L has no
unique definitions but relies on the definitions in existing Sec. 2.4.
(c) Section 2.1202--Authority and Role of NRC Staff.
The proposed Sec. 2.1202 would describe the authority and role of
the NRC staff in the informal hearings under proposed subpart L.
Similar to the situation in license transfer cases under existing
subpart M, the NRC staff would be expected to conduct its own reviews
and take action on the application or matter that is the subject of the
hearing, despite the pendency of the hearing. The NRC staff's action on
the application or matter would be effective upon issuance except in
matters involving an application to construct or operate a production
or utilization facility, an application for for amendment to a
construction authorization for a HLW repository, an application for the
construction and operation of an independent spent fuel storage
installation or monitored retrievable storage facility located away
from a reactor site, and production or utilization facility licensing
actions that involve significant hazards considerations. Under proposed
Sec. 2.1212, the NRC staff's action would be subject to motions for
stay.
Proposed Sec. 2.1202 would provide that the NRC staff is not
required to be a party to most proceedings conducted under proposed
subpart L. Proposed Sec. 2.1202(b)(1)(ii) also requires the NRC staff
to participate as a party on specific issues where the presiding
officer determines that resolution of such issues would be aided
materially by the staff's participation as a party. In all other
instances, the NRC staff must notify the Presiding officer and parties
as to whether or not it desires party status.
(d) Section 2.1203--Hearing File and Prohibition on Other
Discovery.
In a manner similar to existing subpart L, proposed Sec. 2.1203
would require the NRC staff to prepare and provide a hearing file and
to keep the hearing file up-to-date. In many respects, the Hearing File
requirement for the NRC staff overlaps the ``general discovery''
provision of subpart C which is applicable to the staff for all
proceedings. Proposed Sec. 2.1203 would generally prohibit any other
discovery in Subpart L proceedings.
(e) Section 2.1204--Motions and Requests.
The proposed Sec. 2.1204 would make it clear that the provisions in
subpart C on motions, requests and responses are to be applied in
informal proceedings under subpart L. This section would also allow the
parties to request that the presiding officer permit cross-examination
by the parties on particular contentions or issues. The presiding
officer may allow the parties to cross-examine if he/she finds that the
failure to permit cross examination will prevent the development of an
adequate record for decision.
(f) Section 2.1205--Summary Disposition.
The proposed Sec. 2.1205 would provide a simplified procedure for
summary disposition in informal proceedings. The standards to be
applied in ruling on such motions are those set out in Subpart G.
(g) Section 2.1206--Informal Hearings.
The proposed Sec. 2.1206 would specify that informal hearings under
the new subpart L will be oral hearings unless all the parties agree to
a hearing consisting of written submissions. This would be a
significant change from the existing subpart L which generally involves
hearings consisting of written submissions. No motion to hold a hearing
consisting of written submissions would be entertained absent unanimous
consent of the parties.
(h) Section 2.1207--Oral Hearings.
The proposed Sec. 2.1207 would specify the process and schedule for
submissions and presentations in oral hearings under the new Subpart L.
This section addresses the sequence and timing for the submission of
direct testimony, rebuttal testimony, statements of position, suggested
questions for the presiding officer to ask witnesses, and post-hearing
proposed findings of fact and conclusions of law. The section also
contains provisions on the actual conduct of the hearing, including the
stipulation that only the presiding officer may question witnesses.

[[Page 19629]]

(i) Section 2.1208--Hearings Consisting of Written Presentation.
The proposed Sec. 2.1207 would specify the process for submissions
in hearings consisting of written presentations. This section addresses
the sequence and timing for the submission of written statements of
position, written direct testimony, written rebuttal testimony,
proposed questions on the written testimony and written concluding
statements of position on the contentions.
(j) Section 2.1209--Findings of Fact and Conclusions of Law.
The proposed Sec. 2.1209 would require the filing of proposed
findings of fact and conclusions of law within 30 days of the close of
the hearing, unless the presiding officer specifies a different time.
(k) Section 2.1210, 2.1211--Initial Decision and Its Effect.
Currently, unless the Commission directs that the record be
certified to it, the presiding officer renders an initial decision and
that decision constitutes the final action of the Commission 40 days
after issuance, unless any party files a petition for Commission review
or the Commission decides to review on its own motion. Under proposed
Sec. 2.1210, an initial decision resolving all issues before the
presiding officer would be effective upon issuance unless stayed or
otherwise provided by the regulations in part 2. The proposed
Sec. 2.1211 would restate existing Sec. 2.765, which specifies that
initial decisions directing the issuance of a license or license
amendment under part 61 relating to land disposal of radioactive waste
will become effective only upon the order of the Commission.
(l) Section 2.1212--Petitions for Commission Review of Initial
Decision.
The proposed Sec. 2.1212 would specify that petitions for review of
an initial decision must be filed pursuant to the generally applicable
review provisions of Sec. 2.340.
(m) Section 2.1213--Applications for a Stay.
The proposed Sec. 2.1213 would specify the procedures for
applications to stay the effectiveness of the NRC staff's actions on a
licensing matter involved in a hearing under Subpart L. The procedures
and standards are similar to the stay provision in existing Sec. 2.788.
Applications for a stay of an initial decision issued under Subpart L
would be required to be filed under the generally applicable stay
provisions of Sec. 2.341.
(6) Subpart M
The Commission proposes changes to Subpart M that would eliminate
Secs. 2.1306, 2.1307, 2.1308, 2.1312, 2.1313, 2.1314, 2.1317, 2.1318,
2.1326, 2.1328, 2.1329, and 2.1330 because the substance of these
sections is covered by rules of general applicability in proposed
subpart C. Sections 2.1321, 2.1322 and 2.1331 would be amended to
remove references to deleted sections and to reflect the fact that
requests for hearing/petitions to intervene for proceedings under
subpart M would be considered under the generally applicable
requirements of Sec. 2.309. The basic intent of these changes is to
conform subpart M to the other changes to part 2 proposed in this
rulemaking.
(7) Subpart N--Sections 2.1400--2.1407
The Commission proposes to establish a new subpart N--a ``fast
track'' process--to provide a mechanism and procedures for the
expeditious resolution of issues in cases where the contentions are few
and not particularly complex and might be efficiently addressed in a
short hearing using simple procedures and oral presentations. This
Subpart may be used for more complex issues if all parties agree. The
Subpart may be applied to all NRC adjudications except proceedings on
uranium enrichment facility licensing, and proceedings on the initial
authorization to construct a HLW geological waste repository, and
initial authorization to possess and receive HLW at a HLW geological
waste repository. By the shortened response times and fairly rapid
progression to actual hearing, subpart N procedures could result in the
rendering of an initial decision within about two to three months of
the issuance of the order granting a hearing if the issues are
straightforward and deadlines are met. In view of the simplified
procedures and the expedited nature of the litigation involved, subpart
N would allow an appeal as-of-right to the Commission so that the
parties have a direct path to the Commission for review of the
decision. The ``fast track'' procedures of Subpart N may be
particularly useful for small licensee cases where the parties want to
be heard on the issues in a simple, inexpensive informal proceeding
that can be conducted quickly before an independent decisionmaker.
Following is a section-by-section analysis of Subpart N:
(a) Section 2.1401--Definitions.
The proposed Sec. 2.1401 would indicate that subpart N has no
unique definitions but would rely on the definitions in existing
Sec. 2.4.
(b) Section 2.1402--General Procedures and Limitations.
The proposed Sec. 2.1402 would specify the general procedures and
procedural limitations for the ``fast track'' hearing process of
Subpart N. It is notable in its general limitations on the use of
written motions and pleadings, the prohibitions on discovery beyond
that provided by the general disclosure provisions of subpart C, and
the prohibition on summary disposition. Section 2.1402 would allow the
presiding officer or the Commission to order that the hearing be
conducted using other hearing procedures if it becomes apparent before
the hearing is held that the use of the ``fast track'' procedures of
this Subpart is not appropriate in the particular case. It would also
permit any party to request that the presiding officer allow parties to
cross-examine on particular contentions or issues if the party can show
that a failure to allow cross-examination by the parties would prevent
the development of an adequate record for decision.
(c) Section 2.1403--Authority and Role of the NRC Staff.
The proposed Sec. 2.1403 describes the authority and role of the
NRC staff in the ``fast track'' hearings under subpart N. Similar to
the situation in informal hearings under proposed subpart L and license
transfer cases under existing subpart M, the NRC staff is expected to
conduct its own reviews and take action on the application or matter
that is the subject of the hearing, despite the pendency of the
hearing. The NRC staff's action on the application or matter is
effective upon issuance except in proceedings involving an application
to construct and/or operate a production or utilization facility, an
application for the construction and operation of an ISFSI or an MRS at
a site other than a reactor site, and proposed reactor licensing
actions that involve significant hazards considerations. Section 2.1403
would provide that the NRC staff is not required to be a party in most
``fast track'' proceedings. The NRC staff would be required to be a
party in any subpart N proceeding involving an application denied by
the NRC staff or an enforcement action proposed by the staff or where
the presiding officer determines that resolution of any issue would be
aided materially by the staff's participation as a party. In all other
instances, the NRC staff would be required to notify the presiding
officer and the parties as to whether or not it desires party status.
(d) Section 2.1404--Prehearing Conference.
The proposed Sec. 2.1404 would require the presiding officer to
conduct a prehearing conference within 40 days of the issuance of the
order granting

[[Page 19630]]

requests for hearing/petitions to intervene. At the prehearing
conference, each party would identify its witnesses, provide a summary
of the proposed testimony of each witness, report on its efforts at
settlement, and provide questions that the party wishes the presiding
officer to ask at the hearing. The presiding officer would memorialize
the rulings and results of the prehearing conference in a written
order.
(e) Section 2.1405--Hearing.
The proposed Sec. 2.1405 describes the requirements applicable to
``fast track'' hearings. The hearing would commence no later than 20
days after the prehearing conference required by Sec. 2.1404. The
hearing would be open to the public and transcribed. At the hearing,
the presiding officer would receive oral testimony and question the
witnesses. The parties may not cross-examine the witnesses, but they
would have had the opportunity at the prehearing conference to provide
questions for the presiding officer to use at hearing. Each party may
present oral argument and a final statement of position at the close of
the hearing. Written post-hearing briefs and proposed findings would be
prohibited unless requested by the presiding officer.
(f) Section 2.1406--Initial Decision--Issuance and Effectiveness.
The proposed Sec. 2.1406 would encourage the presiding officer to
render a decision from the bench, to be reduced to writing within 20
days of the close of the hearing. Where a decision is not rendered from
the bench, it must be issued in writing within 30 days of the close of
the hearing. These periods would be extended only with the approval of
the Chief Administrative Judge or the Commission. The initial decision
would be effective 20 days after issuance of the written decision
unless a party appeals or the Commission takes review on its own
motion. Under the proposed ``fast track'' process, the initial decision
is effectively stayed if a party appeals or the Commission reviews on
its own.
(g) Section 2.1407--Appeal and Commission Review of Initial
Decision.
Under proposed Sec. 2.1407, a party may appeal as-of-right by
filing a written appeal with the Commission within 15 days after the
service of the initial decision. The written appeal would be limited to
20 pages and must address the matters and standards for review listed
in section 2.1407. Other parties may file written answers within 15
days after service of the appeal. Answers are also limited to 20 pages.

III. Plain Language

The Presidential memorandum dated June 1, 1998, entitled, ``Plain
Language in Government Writing,'' directed that the government's
writing be in plain language. This memorandum was published June 10,
1998 (63 FR 31883). In complying with this directive, editorial changes
have been made to these proposed provisions to improve the organization
and readability of the existing language of the provisions being
revised. The NRC requests comments on the proposed rule specifically
with respect to the clarity and reflectiveness of the language used.
Comments should be sent to the address listed under the ADDRESSES
caption.

IV. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed by voluntary, private sector, consensus
standards bodies unless using such a standard is inconsistent with
applicable law or otherwise impractical. In this proposed rule, the NRC
proposes to approve changes to its procedures for the conduct of
hearing in 10 CFR part 2. This proposed rule does not constitute the
establishment of a government-unique standard as defined in Office of
Management and Budget (OMB) Circular A-119 (1998).

V. Environmental Impact: Categorical Exclusion

The proposed rule involves an amendment to 10 CFR part 2, and
qualifies as an action eligible for the categorical exclusion from
environmental review in 10 CFR 51.22(c)(1). Therefore, neither an
environmental impact statement or environmental assessment has been
prepared for this rulemaking.

VI. Paperwork Reduction Act Statement

This proposed rule does not contain 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.).

VII. Regulatory Analysis

The proposed rule emanates from a longstanding concern that the
Commission's hearing process is not as efficient or effective as it
could be. The Commission is seeking to develop revised rules of
procedure that will enhance public participation, produce more timely
decisions, and reduce the resources that participants expend. The
Commission's experience suggests that, in most instances, the use of
formal adjudicatory procedures is not essential to the development of
an adequate hearing record. However, their use all too frequently
results in protracted, costly proceedings.
The Commission proposes that most NRC proceedings be conducted
using informal hearing procedures. The trend in administrative law is
to move away from formal, trial-type procedures. Instead, informal
hearings and use of Alternative Dispute Resolution methods, such as
settlement conferences, are often viewed as a better, quicker, and less
costly means to resolve disputes.
The Commission would continue to use formal trial-type procedures
in enforcement proceedings, in proceedings on the initial construction
authorization and initial licensing of a high-level radioactive waste
repository, as well as any proceeding to construct and operate an
enrichment facility under section 193 of the Atomic Energy Act of 1954,
as amended (AEA). The Commission also proposes to retain the option of
using formal adjudicatory proceedings in other proceedings where it
determines that this would be the better means to address and resolve
particular issues. The Commission recognizes that in some cases, such
as reactor licensing cases involving many complex issues, the use of
formal adjudicatory proceedings may be the best means to develop an
adequate record upon which a sound decision can be based.
The proposed changes in the rules should facilitate public
participation in NRC proceedings by reducing some of the burdens. For
example, the costs of discovery in formal adjudications should be
reduced by the provision requiring parties to disclose voluntarily
relevant documents at the outset of the proceeding. This should result
in a diminished need for parties to file interrogatories and take
depositions. By adding this form of discovery to all proceedings
(formal and informal), the parties would have information that will
assist in the resolution of issues and litigation of the case.
Moreover, by requiring that contentions be filed in informal
adjudications and providing for oral hearings (unless waived by all of
the parties), informal proceedings should be more focused. This would
permit parties to better focus the scope of their written and oral
presentations on the specific disputes that must be resolved. By
permitting the parties in informal hearings to propose questions that
the presiding officer could pose to the participants, and then
permitting the presiding officer to pose whatever

[[Page 19631]]

questions he or she deems appropriate to the witnesses, a more focused
and complete record should be developed.
Finally, for less complex disputes, a fast track option is
proposed. Under this option, these cases could be resolved far more
quickly than under current rules and with substantially reduced burdens
to the participants.
The Commission does not believe the option of preserving the status
quo by not proposing any rule changes is a preferred option. Experience
has indicated that the agency hearing process can be improved through
appropriate rule changes. The Commission believes that the proposed
rule would improve the effectiveness of NRC hearings and at the same
time reduce the overall burdens for participants--members of the
public, interested State and local governments, NRC staff, applicants
and licensees--in NRC hearings.
This constitutes the regulatory analysis for the proposed rule.

VIII. Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. The proposed rule would apply in the context of
Commission adjudicatory proceedings concerning nuclear reactors or
nuclear materials. Reactor licensees are large organizations that do
fall within the definition of a small business found in section 3 of
the Small Business Act, 15 U.S.C. 632, within the small business
standards set forth in 13 CFR part 121, or within the size standards
adopted by the NRC (10 CFR 2.810). Based upon the historically low
number of requests for hearings involving materials licensees, it is
not expected that this rule would have any significant economic impact
on a substantial number of small businesses.

IX. Backfit Analysis

The NRC has determined that the backfit rule does not apply to this
proposed rule because these amendments do not involve any provisions
that would impose backfits as defined in 10 CFR Chapter I. Therefore, a
backfit analysis is not required for this proposed rule.

Lists of Subjects

10 CFR Part 1

Organization and function (Government Agencies).

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.

10 CFR Part 50

Antitrust, Classified information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.

10 CFR Part 51

Administrative practice and procedure, Environmental impact
statement, Nuclear materials, Nuclear power plants and reactors,
Reporting and recordkeeping requirements.

10 CFR Part 52

Administrative practice and procedure, Antitrust, Backfitting,
Combined license, Early site permit, Emergency planning, Fees,
Inspection, Limited work authorization, Nuclear power plants and
reactors, Probabilistic risk assessment, Prototype, Reactor siting
criteria, Redress of site, Reporting and recordkeeping requirements,
Standard design, Standard design certification.

10 CFR Part 54

Administrative practice and procedure, Age-related degradation,
Backfitting, Classified information, Criminal penalties, Environmental
protection, Nuclear power plants and reactors, Reporting and
recordkeeping requirements.

10 CFR Part 60

Criminal penalties, High-level waste, Nuclear materials, Nuclear
power plants and reactors, Reporting and recordkeeping requirements,
Waste treatment and disposal.

10 CFR Part 70

Criminal penalties, Hazardous materials transportation, Material
control and accounting, Nuclear materials, Packaging and containers,
Radiation protection, Reporting and recordkeeping requirements,
Scientific equipment, Security measures, Special nuclear material.

10 CFR Part 73

Criminal penalties, Export, Hazardous materials transportation,
Import, Nuclear materials, Nuclear power plants and reactors, Reporting
and recordkeeping requirements, Security measures.

10 CFR Part 75

Criminal penalties, Intergovernmental relations, Nuclear materials,
Nuclear power plants and reactors, Reporting and recordkeeping
requirements, Security measures.

10 CFR Part 76

Certification, Criminal penalties, Radiation protection, Reporting
and record keeping requirements, Security measures, Special nuclear
material, Uranium enrichment by gaseous diffusion.

10 CFR Part 110

Administrative practice and procedure, Classified information,
Criminal penalties, Export, Import, Intergovernmental relations,
Nuclear materials, Nuclear power plants and reactors, Reporting and
recordkeeping requirements, Scientific equipment.
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; and 5 U.S.C. 553; the NRC is proposing to
adopt the following amendments to 10 CFR parts 1, 2, 50, 51, 52, 54,
60, 70, 73, 75, 76 and 110.

PART 1--STATEMEMT OF ORGANIZATION AND GENERAL INFORMATION

1. The authority citation for Part 1 continues to read as follows:

Authority: Secs. 23, 161, 68 Stat. 925, 948, as amended (42
U.S.C. 2033, 2201); sec. 29, Pub. L. 85-256, 71 Stat. 579, Pub. L.
95-209, 91 Stat. 1483 (42 U.S.C. 2039); sec. 191, Pub. L. 87-615, 76
Stat. 409 (42 U.S.C. 2241); secs. 201, 203, 204, 205, 209, 88 Stat.
1242, 1244, 1245, 1246, 1248, as amended (42 U.S.C. 5841, 5843,
5844, 5845, 5849); 5 U.S.C. 552, 553; Reorganization Plan No. 1 of
1980, 45 FR 40561, June 16, 1980.

2. In Sec. 1.25, paragraph (g) is revised to read as follows:

Sec. 1.25 Office of the Secretary of the Commission.

* * * * *
(g) Receives, processes, and controls motions and pleadings filed
with the Commission; issues and serves adjudicatory orders on behalf of
the Commission; receives and distributes public comments in rulemaking
proceedings; issues proposed and final rules on behalf of the
Commission; maintains the official adjudicatory and rulemaking dockets
of the Commission; and exercises responsibilities delegated

[[Page 19632]]

to the Secretary in 10 CFR 2.303 and 2.345.
* * * * *

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

3. The authority citation for Part 2 is revised 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.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
105, 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(0); 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,
2.321 also issued under secs. 102, 163, 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. 161 b. i, o, 182, 186, 234, 68 Stat. 948-951,
955, 83 Stat. 444, as amended (42 U.S.C. 2201(b), (i), (o), 2236,
2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Section 2.205(j)
also issued under 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). Subpart C also issued under sec. 189, 68 Stat. 955 (42 U.S.C.
2239). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-
190, 83 Stat. 853, as amended (42 U.S.C. 4332). Section 2.700a also
issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.754, 2.712, 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). Subpart N also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also
issued under sec. 6, Pub. L. 91-550, 84 Stat. 1473 (42 U.S.C. 2135).

4. Section 2.2 is revised to read as follows:

Sec. 2.2 Subparts.

Each subpart other than subpart C sets forth special rules
applicable to the type of proceeding described in the first section of
that subpart. Subpart C sets forth general rules applicable to all
types of proceedings except rule making, and should be read in
conjunction with the subpart governing a particular proceeding. Subpart
I sets forth special procedures to be followed in proceedings in order
to safeguard and prevent disclosure of Restricted Data.
5. Section 2.3 is revised to read as follows:

Sec. 2.3 Resolution of conflict.

(a) In any conflict between a general rule in subpart C of this
part and a special rule in another subpart or other part of this
chapter applicable to a particular type of proceeding, the special rule
governs.
(b) Unless otherwise specifically referenced, the procedures in
this part do not apply to hearings in 10 CFR parts 4, 9, 10, 11, 12,
13, 15, 16, and subparts H and I of 10 CFR part 110.
6. In Sec. 2.4, the definitions of Commission adjudicatory
employee, and NRC employee are revised to read as follows:

Sec. 2.4 Definitions.

As used in this part,
* * * * *
Commission adjudicatory employee means--
(1) The Commissioners and members of their personal staffs;
(2) The employees of the Office of Commission Appellate
Adjudication;
(3) The members of the Atomic Safety and Licensing Board Panel and
staff assistants to the Panel;
(4) A presiding officer appointed under Sec. 2.313, including an
administrative law judge, and staff assistants to a presiding officer;
(5) Special assistants (as defined in Sec. 2.322);
(6) The General Counsel, the Solicitor, the Associate General
Counsel for Licensing and Regulation, and employees of the Office of
the General Counsel under the supervision of the Solicitor;
(7) The Secretary and employees of the Office of the Secretary; and
(8) Any other Commission officer or employee who is appointed by
the Commission, the Secretary, or the General Counsel to participate or
advise in the Commission's consideration of an initial or final
decision in a proceeding. Any other Commission officer or employee who,
as permitted by Sec. 2.347, participates or advises in the Commission's
consideration of an initial or final decision in a proceeding must be
appointed as a Commission adjudicatory employee under this paragraph
and the parties to the proceeding must be given written notice of the
appointment.
* * * * *
NRC personnel means:
(1) NRC employees;
(2) For the purpose of Secs. 2.336, 2.702, 2.709 and 2.1018 only,
persons acting in the capacity of consultants to the Commission,
regardless of the form of the contractual arrangements under which such
persons act as consultants to the Commission; and
(3) Members of advisory boards, committees, and panels of the NRC;
members of boards designated by the Commission to preside at
adjudicatory proceedings; and officers or employees of Government
agencies, including military personnel, assigned to duty at the NRC.
* * * * *
7. In Sec. 2.101, paragraphs (a)(3)(ii), (b), and (g)(2) are
revised to read as follows:

Sec. 2.101 Filing of application.

(a) * * *
(3) * * *
(ii) Serve a copy on the chief executive of the municipality in
which the facility is to be located or, if the facility is not to be
located within a municipality, on the chief executive of the county,
and serve a notice of availability of the application or environmental
report on the chief executives of the municipalities or counties which
have been identified in the application or environmental report as the
location of all or part of the alternative sites, containing the
following information: Docket number of the application, a brief
description of the proposed site and facility; the location of the site
and facility as primarily proposed and alternatively listed; the name,
address, and telephone number of the applicant's representative who may
be contacted for further information; notification that a draft
environmental impact statement will be issued by the Commission and
will be made available upon request to the Commission; and notification
that if a request is received from the appropriate chief executive, the
applicant will transmit a copy of the application and environmental
report, and any changes to such documents which affect the alternative
site location, to the executive who makes the request. In complying
with the requirements of this paragraph (a)(3)(ii) the applicant should
not make public distribution of those parts of the application subject
to Sec. 2.390(d). The applicant shall submit to the Director of Nuclear
Reactor Regulation an affidavit that service of the notice of
availability of the application or environmental report has been
completed along with a list of names and addresses of those

[[Page 19633]]

executives upon whom the notice was served; and
* * * * *
(b) After the application has been docketed each applicant for a
license for receipt of waste radioactive material from other persons
for the purpose of commercial disposal by the waste disposal licensee
except applicants under part 61 of this chapter, who must comply with
paragraph (g) of this section, shall serve a copy of the application
and environmental report, as appropriate, on the chief executive of the
municipality in which the activity is to be conducted or, if the
activity is not to be conducted within a municipality on the chief
executive of the county, and serve a notice of availability of the
application or environmental report on the chief executives of the
municipalities or counties which have been identified in the
application or environmental report as the location of all or part of
the alternative sites, containing the following information: Docket
number of the application; a brief description of the proposed site and
facility; the location of the site and facility as primarily proposed
and alternatively listed; the name, address, and telephone number of
the applicant's representative who may be contacted for further
information; notification that a draft environmental impact statement
will be issued by the Commission and will be made available upon
request to the Commission; and notification that if a request is
received from the appropriate chief executive, the applicant will
transmit a copy of the application and environmental report, and any
changes to such documents which affect the alternative site location,
to the executive who makes the request. In complying with the
requirements of this paragraph (b) the applicant should not make public
distribution of those parts of the application subject to
Sec. 2.390(d). The applicant shall submit to the Director of Nuclear
Material Safety and Safeguards an affidavit that service of the notice
of availability of the application or environmental report has been
completed along with a list of names and addresses of those executives
upon whom the notice was served.
* * * * *
(g) * * *
(2) With respect to any tendered document that is acceptable for
docketing, the applicant will be requested to submit to the Director of
Nuclear Material Safety and Safeguards such additional copies as the
regulations in Part 61 and subpart A of part 51 of this chapter
require, serve a copy on the chief executive of the municipality in
which the waste is to be disposed of or, if the waste is not to be
disposed of within a municipality, serve a copy on the chief executive
of the county in which the waste is to be disposed of, make direct
distribution of additional copies to Federal, State, Indian Tribe, and
local officials in accordance with the requirements of this chapter and
written instructions from the Director of Nuclear Material Safety and
Safeguards, and serve a notice of availability of the application and
environmental report on the chief executives or governing bodies of the
municipalities or counties which have been identified in the
application and environmental report as the location of all or part of
the alternative sites if copies are not distributed under paragraph
(g)(2) of this section to the executives or bodies. All distributed
copies shall be completely assembled documents identified by docket
number. Subsequently distributed amendments, however, may include
revised pages to previous submittals and, in such cases, the recipients
will be responsible for inserting the revised pages. In complying with
the requirements of paragraph (g) of this section the applicant shall
not make public distribution of those parts of the application subject
to Sec. 2.390(d).
* * * * *
8. In Sec. 2.102, paragraph (d)(3) is revised to read as follows:

Sec. 2.102 Administrative review of application.

* * * * *
(d) * * *
(3) The Director of Nuclear Reactor Regulation or Director of
Nuclear Material Safety and Safeguards, as appropriate, will cause the
Attorney General's advice received pursuant to paragraph (d)(1) of this
section to be published in the Federal Register promptly upon receipt,
and will make such advice a part of the record in any proceeding on
antitrust matters conducted in accordance with subsection 105c(5) and
section 189a of the Act. The Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate,
will also cause to be published in the Federal Register a notice that
the Attorney General has not rendered any such advice. Any notice
published in the Federal Register pursuant to this subparagraph will
also include a notice of hearing, if appropriate, or will state that
any person whose interest may be affected by the proceeding may,
pursuant to and in accordance with Sec. 2.309, file a petition for
leave to intervene and request a hearing on the antitrust aspects of
the application. The notice will state that petitions for leave to
intervene and requests for hearing shall be filed within 30 days after
publication of the notice.
9. In Sec. 2.107, paragraph (a) is revised to read as follows:

Sec. 2.107 Withdrawal of application.

(a) The Commission may permit an applicant to withdraw an
application prior to the issuance of a notice of hearing on such terms
and conditions as it may prescribe, or may, on receiving a request for
withdrawal of an application, deny the application or dismiss it with
prejudice. If the application is withdrawn prior to issuance of a
notice of hearing, the presiding officer shall dismiss the proceeding.
Withdrawal of an application after the issuance of a notice of hearing
shall be on such terms as the presiding officer may prescribe.
* * * * *
10. In Sec. 2.108, paragraph (c) is revised to read as follows:

Sec. 2.108 Denial of application for failure to supply information.

* * * * *
(c) When both a notice of receipt of the application and a notice
of hearing have been published, the presiding officer, upon a motion
made by the staff pursuant to Sec. 2.323, will rule whether an
application should be denied by the Director of Nuclear Reactor
Regulation or Director of Nuclear Material Safety and Safeguards, as
appropriate, pursuant to paragraph (a) of this section.
11. In Sec. 2.110, paragraph (a)(1) is revised to read as follows:

Sec. 2.110 Filing and administrative action on submittals for design
review or early review of site suitability issues.

(a)(1) A submittal pursuant to appendix O of part 52 of this
chapter shall be subject to Secs. 2.101(a) and 2.390 to the same extent
as if it were an application for a permit or license.
* * * * *
12. A new subpart C is added to Part 2 to read as follows:
Subpart C--Rules of General Applicability; Hearing Requests, Petitions
to Intervene, Availability of Documents, Selection of Specific Hearing
Procedures, Presiding Officer Powers, and General Hearing Management
for NRC Adjudicatory Hearings
Sec.
2.300 Scope of Subpart C.
2.301 Exceptions
2.302 Filing of documents.
2.303 Docket.

[[Page 19634]]

2.304 Formal requirements for documents; acceptance for filing.
2.305 Service of papers, methods, proof.
2.306 Computation of time.
2.307 Extension and reduction of time limits.
2.308 Treatment of requests for hearing or petitions for leave to
intervene by the Secretary.
2.309 Hearing requests, petitions to intervene, requirements for
standing, and contentions.
2.310 Selection of hearing procedures.
2.311 Interlocutory review of rulings on requests for hearings/
petitions to intervene and selection of hearing procedures.
2.312 Notice of hearing.
2.313 Designation of presiding officer, disqualification,
unavailability.
2.314 Appearance and practice before the Commission in
adjudicatory proceedings.
2.315 Participation by a person not a party.
2.316 Consolidation of parties.
2.317 Separate hearings; consolidation of proceedings.
2.318 Commencement and termination of jurisdiction of presiding
officer.
2.319 Power of the presiding officer.
2.320 Default.
2.321 Atomic Safety and Licensing Boards.
2.322 Special assistants to the presiding officer.
2.323 Motions.
2.324 Order of procedure.
2.325 Burden of proof.
2.326 Motions to reopen.
2.327 Official recording; transcript.
2.328 Hearings to be public.
2.329 Prehearing conference.
2.330 Stipulations.
2.331 Oral argument before the presiding officer.
2.332 General case scheduling and management.
2.333 Authority of the presiding officer to regulate procedure in
a hearing.
2.334 Schedules for proceedings.
2.335 Consideration of Commission rules and regulations in
adjudicatory proceedings.
2.336 General discovery.
2.337 Settlement of issues; alternative dispute resolution.
2.338 Expedited decisionmaking procedure.
2.339 Initial decision in contested proceedings on applications
for facility operating licenses; immediate effectiveness of initial
decision directing issuance or amendment of construction permit or
operating license.
2.340 Review of decisions and actions of a presiding officer.
2.341 Stays of decisions.
2.342 Oral arguments.
2.343 Final decision.
2.344 Petition for reconsideration.
2.345 Authority of the Secretary.
2.346 Ex parte communications.
2.347 Separation of functions.
2.390 Public inspections, exemptions, requests for withholding.

Subpart C--Rules of General Applicability: Hearing Requests,
Petitions to Intervene, Availability of Documents, Selection of
Specific Hearing Procedures, Presiding Officer Powers, and General
Hearing Management for NRC Adjudicatory Hearings

Sec. 2.300 Scope of Subpart C.

The provisions of this subpart apply to all adjudications conducted
under the authority of the Atomic Energy Act of 1954, as amended, the
Energy Reorganization Act of 1974, and 10 CFR part 2, unless
specifically stated otherwise in this subpart.

Sec. 2.301 Exceptions.

Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure
Act, the Commission may provide alternative procedures in adjudications
to the extent that the conduct of military or foreign affairs functions
is involved.

Sec. 2.302 Filing of documents.

(a) Documents must be filed with the Commission in adjudications
subject to this part either:
(1) By delivery to the NRC Public Document Room at 11555 Rockville
Pike, Room O1-F21, Rockville, Maryland; or
(2) By mail addressed to the Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Rulemakings and
Adjudications Staff, or
(3) By facsimile transmission addressed to the Secretary, U.S.
Nuclear Regulatory Commission, Washington, DC., Attention: Rulemakings
and Adjudications Staff, at (301) 415-1101; or
(4) By electronic mail addressed to the Secretary, U.S. Nuclear
Regulatory Commission, HEARINGDOCKET@NRC.GOV.
(b) All documents offered for filing must be accompanied by proof
of service on all parties to the proceeding or their attorneys of
record as required by law or by rule or order of the Commission. For
purposes of service of documents, the staff of the Commission is
considered a party.
(c) Filing by mail, electronic mail, or facsimile is considered
complete as of the time of deposit in the mail or upon electronic mail
or facsimile transmission.

Sec. 2.303 Docket.

The Secretary shall maintain a docket for each proceeding conducted
under this part, commencing with either the initial notice of hearing,
notice of proposed action, order, request for hearing or petition for
leave to intervene, as appropriate. The Secretary shall maintain all
files and records of proceedings, including transcripts and video
recordings of testimony, exhibits, and all papers, correspondence,
decisions and orders filed or issued. All documents, records, and
exhibits filed in any proceeding must be filed with the Secretary as
described in Secs. 2.302 and 2.304.

Sec. 2.304 Formal requirements for documents; acceptance for filing.

(a) Each document filed in an adjudication subject to this part to
which a docket number has been assigned must show the docket number and
title of the proceeding.
(b) Each document must be bound on the left side and typewritten,
printed, or otherwise reproduced in permanent form on good unglazed
paper of standard letterhead size. Each page must begin not less than
one inch from the top, with side and bottom margins of not less than
one inch. Text must be double-spaced, except that quotations may be
single-spaced and indented. The requirements of this paragraph do not
apply to original documents or admissible copies offered as exhibits,
or to specifically prepared exhibits.
(c) The original of each document must be signed in ink by the
party or its authorized representative, or by an attorney having
authority with respect to it. The document must state the capacity of
the person signing, his or her address, and the date of signature. The
signature of a person signing in a representative capacity is a
representation that the document has been subscribed in the capacity
specified with full authority, that he or she has read it and knows the
contents, that to the best of his or her knowledge, information and
belief the statements made in it are true, and that it is not
interposed for delay. If a document is not signed, or is signed with
intent to defeat the purpose of this section, it may be stricken.
(d) Except as otherwise required by this part or by order, a
pleading or other document, other than correspondence, must be filed in
an original and two conformed copies.
(e) The first document filed by any person in a proceeding must
designate the name and address of a person on whom service may be made.
This document must also designate the electronic mail address and
facsimile number, if any, of the person on whom service may be made.
(f) A document filed by electronic mail or facsimile transmission
need not comply with the formal requirements of paragraphs (b), (c),
and (d) of this

[[Page 19635]]

section if an original and copies otherwise complying with all of the
requirements of this section are mailed within two (2) days thereafter
to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, Attention: Rulemakings and Adjudications Staff.
(g) Acceptance for filing: Any document that fails to conform to
the requirements of this section may be refused acceptance for filing
and may be returned with an indication of the reason for nonacceptance.
Any document that is not accepted for filing will not be entered on the
Commission's docket.

Sec. 2.305 Service of papers, methods, proof.

(a) Service of papers by the Commission. Except for subpoenas, the
Commission will serve all orders, decisions, notices, and other papers
issued by it upon all parties.
(b) Who may be served. Any paper required to be served upon a party
must be served upon that person or upon the representative designated
by the party or by law to receive service of papers. When a party has
appeared by attorney, service must be made upon the attorney of record.
(c) How service may be made. Service may be made by personal
delivery, by first class, certified or registered mail including air
mail, by electronic or facsimile transmission (in which case the
original signed copy shall be transmitted to the Secretary by personal
delivery or by first class, certified or registered mail), or as
otherwise authorized by law. Where there are numerous parties to a
proceeding, the Commission may make special provision regarding the
service of papers. The presiding officer shall require service by the
most expeditious means that is available to all parties in the
proceeding, including express mail and/or electronic or facsimile
transmission, unless the presiding officer finds that this requirement
would impose undue burden or expense on some or all of the parties.
(d) Service on the Secretary.
(1) All pleadings must be served on the Secretary of the Commission
in the same or equivalent manner, i.e., facsimile or electronic
transmission, first class or express mail, personal delivery, or
courier, that they are served upon the adjudicatory tribunals and the
parties to the proceedings so that the Secretary will receive the
pleading at approximately the same time that it is received by the
tribunal to which the pleading is directed.
(2) When pleadings are personally delivered to tribunals while they
are conducting proceedings outside the Washington, DC area, service on
the Secretary may be accomplished by overnight mail or by electronic or
facsimile transmission.
(3) Service of pre-filed testimony and demonstrative evidence
(e.g., maps and other physical exhibits) on the Secretary may be made
by first-class mail in all cases.
(4) The addresses for the Secretary are:
(i) First class mail: Office of the Secretary, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff.
(ii) Express mail: Office of the Secretary, Sixteenth Floor, One
White Flint North, 11555 Rockville Pike, Rockville, MD 20852,
Attention: Rulemakings and Adjudications Staff.
(iii) E-mail: SECY@NRC.gov.; and facsimile: (301) 415-1101,
verification number is (301) 415-1966.
(e) When service is complete. Service upon a party is complete:
(1) By personal delivery, on handing the paper to the individual,
or leaving it at his or her office with that person's clerk or other
person in charge or, if there is no one in charge, leaving it in a
conspicuous place in the office, or if the office is closed or the
person to be served has no office, leaving it at his or her usual place
of residence with some person of suitable age and discretion then
residing there;
(2) By mail, on deposit in the United States mail, properly stamped
and addressed;
(3) By electronic mail, on transmission and receipt of electronic
confirmation that one or more of the addressees for a party has
successfully received the transmission. If the sender receives an
electronic message that transmission to an addressee was not
deliverable, transmission to that person is not considered complete;
(4) By facsimile transmission, on transmission thereof; or
(5) When service cannot be effected in a manner provided by
paragraphs (e)(1) to (4) inclusive of this section, in any other manner
authorized by law.

Sec. 2.306 Computation of time.

In computing any period of time, the day of the act, event, or
default after which the designated period of time begins to run is not
included. The last day of the period so computed is included unless it
is a Saturday, Sunday, or legal holiday at the place where the action
or event is to occur, in which event the period runs until the end of
the next day which is neither a Saturday, Sunday, nor holiday. Whenever
a party has the right or is required to do some act within a prescribed
period after the service of a notice or other paper upon him or her and
the notice or paper is served upon by mail, five (5) days is added to
the prescribed period. Only two (2) days is added when a document is
served by express mail. No time is added when the notice or paper is
served by electronic mail or facsimile transmission if the recipient
has the capability to receive electronic mail or facsimile
transmissions. If a document is served by electronic transmission or
facsimile and is not received by a party before 5 PM in the recipient's
time zone on the date of transmission, the recipient's response date is
extended by one business day.

Sec. 2.307 Extension and reduction of time limits.

(a) Except as otherwise provided by law, the time fixed or the
period of time prescribed for an act that is required or allowed to be
done at or within a specified time, may be extended or shortened either
by the Commission or the presiding officer for good cause, or by
stipulation approved by the Commission or the presiding officer.
(b) If this part does not prescribe a time limit for an action to
be taken in the proceeding, the Commission or the presiding officer may
set a time limit for the action.

Sec. 2.308 Treatment of requests for hearing or petitions for leave to
intervene by the Secretary.

Upon receipt of a request for hearing or a petition to intervene,
the Secretary will forward the request or petition and/or proffered
contentions and any answers and replies either to the Commission for a
ruling on the request/petition and/or proffered contentions or to the
Chief Administrative Judge of the Atomic Safety and Licensing Board
Panel for the designation of a presiding officer or Atomic Safety and
Licensing Board, as appropriate, to rule on the matter.

Sec. 2.309 Hearing requests, petitions to intervene, requirements for
standing, and contentions.

(a) General requirements. Any person whose interest may be affected
by a proceeding and who desires to participate as a party must file a
written request for hearing or petition for leave to intervene and a
specification of the contentions which the person seeks to have
litigated in the hearing. Except as provided in Sec. 2.309(e), the
Commission, presiding officer or the Atomic Safety and Licensing Board
designated to rule on the request for hearing and/or

[[Page 19636]]

petition for leave to intervene will grant the request/petition if it
determines that the requestor/petitioner has standing under the
provisions of Sec. 2.309(d) and has proposed at least one admissible
contention that meets the requirements of Sec. 2.309(f). In ruling on
the request for hearing/petition to intervene submitted by petitioners
seeking to intervene in the proceeding on the high-level waste
repository, the Commission, the presiding officer or the Atomic Safety
and Licensing Board shall also consider any failure of the petitioner
to participate as a potential party in the pre-license application
phase under subpart J of this part in addition to the factors in
paragraph (d) of this section. If a request for hearing or petition to
intervene is filed in response to any notice of hearing or opportunity
for hearing, the applicant/licensee shall be deemed to be a party.
(b) Timing. Unless otherwise provided by the Commission, the
request and/or petition and the list of contentions must be filed as
follows:
(1) In proceedings for which a Federal Register notice of agency
action is published, not later than the latest of:
(i) The time specified in any notice of hearing or notice of
proposed action or as provided by the presiding officer or the Atomic
Safety and Licensing Board designated to rule on the request and/or
petition;
(ii) The time provided in Sec. 2.102(d)(3); or
(iii) Forty-five (45) days from the date of publication of the
notice.
(2) In proceedings for which a Federal Register notice of agency
action is not published, not later than the latest of:
(i) Forty-five (45) days after publication of notice on the NRC
Website, http://www.nrc.gov; or
(ii) Forty-five (45) days after the requestor receives actual
notice of a pending application, but not more than forty-five (45) days
after agency action on the application.
(c) Nontimely Filings.
(1) Nontimely requests and/or petitions and contentions will not be
entertained absent a determination by the Commission, the presiding
officer or the Atomic Safety and Licensing Board designated to rule on
the request and/or petition and contentions that the request and/or
petition should be granted and/or the contentions should be admitted
based upon a balancing of the following factors to the extent that they
apply to the particular nontimely filing:
(i) Good cause, if any, for the failure to file on time;
(ii) The nature of the requestor's/petitioner's right under the Act
to be made a party to the proceeding;
(iii) The nature and extent of the requestor's/petitioner's
property, financial or other interest in the proceeding;
(iv) The possible effect of any order that may be entered in the
proceeding on the requestor's/petitioner's interest;
(v) The availability of other means whereby the requestor's/
petitioner's interest will be protected;
(vi) The extent to which the requestor's/petitioner's interests
will be represented by existing parties;
(vii) The extent to which the requestor's/petitioner's
participation will broaden the issues or delay the proceeding; and
(viii) The extent to which the requestor's/petitioner's
participation may reasonably be expected to assist in developing a
sound record.
(2) The requestor/petitioner shall address these factors in its
nontimely filing.
(d) Standing.
(1) General requirements. A request for hearing or petition for
leave to intervene must state:
(i) The name, address and telephone number of the requestor or
petitioner;
(ii) The nature of the requestor's/petitioner's right under the Act
to be made a party to the proceeding;
(iii) The nature and extent of the requestor's/petitioner's
property, financial or other interest in the proceeding; and
(iv) The possible effect of any decision or order that may be
issued in the proceeding on the requestor's/petitioner's interest.
(2) State and local governments and affected Indian Tribes.
(i) The Commission, the presiding officer or the Atomic Safety and
Licensing Board designated to rule on requests for hearings or
petitions for leave to intervene will admit as a party to a proceeding
a single representative designated by the State in which the facility
is located as well as a single designated representative of the local
governmental body (county, municipality or other subdivision) in which
the facility is located and any affected Indian Tribe as defined in
Part 60 of this chapter, without requiring a further demonstration of
standing.
(ii) The representative of the State or local government or
affected Indian Tribe admitted under Sec. 2.315(c) is not required to
take a position with respect to any admitted contention. However, the
representative will be required to identify those contentions on which
it will participate in advance of any hearing held. A representative
who wishes to litigate a contention not otherwise admitted in the
proceeding must satisfy the requirements of paragraph (f) of this
section with respect to that contention.
(iii) In any proceeding on an application for a license to receive
and possess high-level radioactive waste at a geologic repository
operations area, the Commission shall permit intervention by the State
and local governments (counties) in which such an area is located and
by any affected Indian Tribe as defined in part 60 of this chapter if
the requirements of paragraph (f) of this section are satisfied with
respect to at least one contention. All other petitions for
intervention in any such proceeding must be reviewed under the
provisions of paragraphs (a) through (f) of this section.
(3) The Commission, the presiding officer, or the Atomic Safety and
Licensing Board designated to rule on requests for hearing and/or
petitions for leave to intervene will determine whether the petitioner
has an interest affected by the proceeding considering the factors
enumerated above, among other things. In enforcement proceedings, the
licensee or other person against whom the action is taken shall have
standing.
(e) Discretionary Intervention. A requestor/petitioner may request
that his or her petition be granted as a matter of discretion in the
event that the petitioner is determined to lack standing to intervene
as a matter of right under Sec. 2.309(b)(1). Accordingly, in addition
to addressing the factors in Sec. 2.309(b)(1), a petitioner who wishes
to seek intervention as a matter of discretion in the event it is
determined that standing as a matter of right is not demonstrated shall
address the following factors in his/her initial petition, which the
Commission, the presiding officer or the Atomic Safety and Licensing
Board will consider and balance:
(1) Factors weighing in favor of allowing intervention--
(i) The extent to which the requestor's/petitioner's participation
may reasonably be expected to assist in developing a sound record;
(ii) The nature and extent of the requestor's/petitioner's
property, financial or other interests in the proceeding; and
(iii) The possible effect of any decision or order that may be
issued in the proceeding on the requestor's/petitioner's interest;
(2) Factors weighing against allowing intervention--

[[Page 19637]]

(i) The availability of other means whereby the requestor's/
petitioner's interest will be protected;
(ii) The extent to which the requestor's/petitioner's interest will
be represented by existing parties; and
(iii) The extent to which the requestor's/petitioner's
participation will inappropriately broaden the issues or delay the
proceeding.
(f) Contentions.
(1) A request for hearing or petition for leave to intervene must
set forth with particularity the contentions sought to be raised and
for each contention--
(i) Provide a specific statement of the issue of law or fact to be
raised or controverted;
(ii) Provide a brief explanation of the basis for the contention;
(iii) Demonstrate that the issue raised in the contention is within
the scope of the proceeding;
(iv) Demonstrate that the issue raised in the contention is
material to the findings the NRC must make to support the action that
is involved in the proceeding;
(v) Provide a concise statement of the alleged facts or expert
opinions which support the requestor's/petitioner's position on the
issue and on which the petitioner intends to rely at hearing, together
with references to the specific sources and documents on which the
requestor/petitioner intends to rely to support its position on the
issue; and
(vi) Provide sufficient information to show that a genuine dispute
exists with the applicant/licensee on a material issue of law or fact.
This information must include references to specific portions of the
application (including the applicant's environmental report and safety
report) that the petitioner disputes and the supporting reasons for
each dispute, or, if the petitioner believes that the 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.
(2) Contentions must be based on documents or other information
available at the time the petition is to be filed, such as the
application, supporting safety analysis report, environmental report or
other supporting document filed by an applicant or licensee, or
otherwise available to a petitioner. On issues arising under the
National Environmental Policy Act, the petitioner shall file
contentions based on the applicant's environmental report. The
petitioner may amend those contentions or file new contentions if there
are data or conclusions in the NRC draft or final environmental impact
statement, environmental assessment, or any supplements relating
thereto, that differ significantly from the data or conclusions in the
applicant's documents. Otherwise, contentions may be amended after the
initial filing only with leave of the Presiding officer upon a showing
that--
(i) The information upon which the amended contention is based was
not previously available;
(ii) The information upon which the amended contention is based is
materially different than information previously available; and
(iii) The amended contention has been submitted in a timely fashion
based on the availability of the subsequent information.
(g) Selection of hearing procedures. A request for hearing and/or
petition for leave to intervene must also address the selection of
hearing procedures, taking into account the provisions of Sec. 2.310.
(h) Answers to requests for hearing and petitions to intervene.
Unless otherwise specified by the Commission, the presiding officer, or
the Atomic Safety and Licensing Board designated to rule on requests
for hearings or petitions for leave to intervene--
(1) The applicant/licensee, the NRC staff, and any other party to a
proceeding may file an answer to a request for a hearing, a petition to
intervene and/or proffered contentions within twenty-five (25) days
after service of the request for hearing, petition and/or contentions.
Answers should address, at a minimum, the factors set forth in
paragraphs (a) through (g) of this section insofar as these sections
apply to the filing that is the subject of the answer.
(2) The requestor/petitioner may file a reply to any answer withing
five (5) days after service of that answer.
(3) No other written answers or replies will be entertained.

Sec. 2.310 Selection of hearing procedures.

Upon a determination that a request for hearing/petition to
intervene should be granted and a hearing held, the Commission, the
presiding officer, or the Atomic Safety and Licensing Board designated
to rule on the request/petition will determine and identify the
specific hearing procedures to be used for the proceeding as follows--
(a) Proceedings on enforcement matters must be conducted under the
procedures of subpart G of this part, unless all parties agree and
jointly request that the proceedings be conducted under the procedures
of subpart L or subpart N of this part, as appropriate.
(b) Proceedings on the licensing of the construction and operation
of a uranium enrichment facility must be conducted under the procedures
of subpart G of this part.
(c) Reactor licensing proceedings involving a large number of very
complex issues that would demonstrably benefit from the use of formal
hearing procedures may be conducted under the procedures of subpart G
of this part.
(d) At the request of any party in proceedings on applications for
a license or license amendment to expand the spent nuclear fuel storage
capacity at the site of a civilian nuclear power plant, the proceeding
may be conducted under the procedures of subpart K of this part.
(e) Proceedings on an application for authorization to construct a
high-level radioactive waste repository at a geologic repository
operations area noticed pursuant to Secs. 2.101(f)(8) or 2.105(a)(5),
and proceedings on an application for authorization to receive and
possess high-level radioactive waste at a geologic repository
operations area must be conducted under the procedures of subparts G
and J of this part. Subsequent amendments to the license to construct.
Amendments to an authorization to construct a high-level radioactive
waste repository at a geologic repository operations area, and
amendments to an authorization to receive and possess high level waste
at a geologic repository operations area may be conducted under the
procedures of subpart L or N of this part.
(f) Proceedings on an application for the direct or indirect
transfer of control of an NRC license which transfer requires prior
approval of the NRC under the Commission's regulations, governing
statutes or pursuant to a license condition may be conducted under the
procedures of subpart M of this part.
(g) Except as determined through the application of paragraphs (a)
through (f) of this section, proceedings for the grant, renewal,
licensee-initiated amendment, or termination of licenses or permits
subject to parts 30, 32 through 35, 39, 40, 50, 52, 54, 55, 61, and 70
may be conducted under the procedures of subpart L of this part.
(h) Except as determined through the application of paragraphs (a)
through (f) of this section, proceedings for the grant, renewal,
licensee-initiated amendment, or termination of licenses or permits
subject to parts 30, 32 through 35, 39, 40, 50, 52, 54, 55, 61, 70 and
72, and proceedings on an application for the direct or indirect
transfer of control of an NRC license

[[Page 19638]]

may be conducted under the procedures of subpart N of this part if--
(1) The hearing itself is expected to take no more than two (2)
days to complete; or
(2) All parties to the proceeding agree that it should be conducted
under the procedures of subpart N of this part.

Sec. 2.311 Interlocutory review of rulings on requests for hearing/
petitions to intervene and selection of hearing procedures.

(a) An order of the presiding officer or of the Atomic Safety and
Licensing Board on a request for hearing or a petition to intervene may
be appealed to the Commission, only in accordance with the provisions
of this section, within 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. 2.340(c)(2). No other appeals from rulings
on requests for hearings are allowed.
(b) An order denying a petition to intervene and/or request for
hearing is appealable by the requestor/petitioner on the question as to
whether the request and/or petition should have been granted.
(c) An order granting a petition to intervene and/or request for
hearing is appealable by a party other than the requestor/petitioner on
the question as to whether the request/petition should have been wholly
denied.
(d) An order selecting hearing procedures may be appealed by any
party on the question as to whether the selection of the particular
hearing procedures was erroneous.

Sec. 2.312 Notice of hearing.

(a) In a proceeding in which the terms of a notice of hearing are
not otherwise prescribed by this part, the order or notice of hearing
will state:
(1) The nature of the hearing and its time and place, or a
statement that the time and place will be fixed by subsequent order;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law asserted or to be considered; and
(4) A statement describing the specific hearing procedures or
subpart that will be used for the hearing.
(b) The time and place of hearing will be fixed with due regard for
the convenience of the parties or their representatives, the nature of
the proceeding and the public interest.

Sec. 2.313 Designation of presiding officer, disqualification,
unavailability.

(a) The Commission may provide in the notice of hearing that one or
more members of the Commission, or an Atomic Safety and Licensing
Board, or a named officer who has been delegated final authority in the
matter, shall preside. If the Commission does not so provide, the Chief
Administrative Judge will issue an order designating an Atomic Safety
and Licensing Board appointed under section 191 of the Atomic Energy
Act of 1954, as amended. If the Commission has not provided for the
hearing to be conducted by an Atomic Safety and Licensing Board, the
Chief Administrative Judge will issue an order designating, as
appropriate, either an administrative law judge appointed under 5
U.S.C. 3105, or an administrative judge.
(b) If a designated presiding officer or a designated member of an
Atomic Safety and Licensing Board believes that he or she is
disqualified to preside or to participate as a board member in the
hearing, he or she shall withdraw by notice on the record and shall
notify the Commission or the Chief Administrative Judge, as
appropriate, of the withdrawal.
(c) If a party believes that the presiding officer or a designated
member of an Atomic Safety and Licensing Board should be disqualified,
the party may move that the presiding officer or the board member
disqualify himself or herself. The motion must be supported by
affidavits setting forth the alleged grounds for disqualification. If
the presiding officer does not grant the motion or the board member
does not disqualify himself, the motion must be referred to the
Commission. The Commission will determine the sufficiency of the
grounds alleged.
(d) If a presiding officer or a designated member of an Atomic
Safety and Licensing Board becomes unavailable during the course of a
hearing, the Commission or the Chief Administrative Judge, as
appropriate, will designate another presiding officer or Atomic Safety
and Licensing Board member. If he or she becomes unavailable after the
hearing has been concluded, then:
(1) The Commission may designate another presiding officer;
(2) The Chief Administrative Judge or the Commission, as
appropriate, may designate another Atomic Safety and Licensing Board
member to participate in the decision;
(3) The Commission may direct that the record be certified to it
for decision.
(e) If a presiding officer or a designated member of an Atomic
Safety and Licensing Board is substituted for the one originally
designated, any motion predicated upon the substitution must be made
within five (5) days after the substitution.

Sec. 2.314 Appearance and practice before the Commission in
adjudicatory proceedings.

(a) Standards of practice. In the exercise of their functions under
this subpart, the Commission, the Atomic Safety and Licensing Boards,
Administrative Law Judges, and Administrative Judges function in a
quasi-judicial capacity. Accordingly, parties and their representatives
in proceedings subject to this subpart are expected to conduct
themselves with honor, dignity, and decorum as they should before a
court of law.
(b) Representation. A person may appear in an adjudication on his
or her own behalf or by an attorney-at-law. A partnership, corporation,
or unincorporated association may be represented by a duly authorized
member or officer, or by an attorney-at-law. A party may be represented
by an attorney-at-law if the attorney is in good standing and has been
admitted to practice before any Court of the United States, the
District of Columbia, or the highest court of any State, territory, or
possession of the United States. Any person appearing in a
representative capacity shall file with the Commission a written notice
of appearance. The notice must state his or her name, address,
telephone number, and facsimile number and email address, if any; the
name and address of the person on whose behalf he or she appears; and,
in the case of an attorney-at-law, the basis of his or her eligibility
as a representative or, in the case of another representative, the
basis of his or her authority to act on behalf of the party.
(c) Reprimand, censure or suspension from the proceeding.
(1) A presiding officer, or the Commission may, if necessary for
the orderly conduct of a proceeding, reprimand, censure or suspend from
participation in the particular proceeding pending before it any party
or representative of a party who refuses to comply with its directions,
or who is disorderly, disruptive, or engages in contemptuous conduct.
(2) A reprimand, censure, or a suspension that is ordered to run
for one day or less must state the grounds for the action in the record
of the proceeding, and must advise the person disciplined of the right
to appeal under paragraph (c)(3) of this section. A suspension that is
ordered for a longer period must be in writing, state the grounds on
which it is based, and

[[Page 19639]]

advise the person suspended of the rights to appeal and to request a
stay under paragraphs (c)(3) and (c)(4) of this section. The suspension
may be stayed for a reasonable time in order for an affected party to
obtain other representation if this would be necessary to prevent
injustice.
(3) Anyone disciplined under this section may file an appeal with
the Commission within ten (10) days after issuance of the order. The
appeal must be in writing and state concisely, with supporting
argument, why the appellant believes the order was erroneous, either as
a matter of fact or law. The Commission shall consider each appeal on
the merits, including appeals in cases in which the suspension period
has already run. If necessary for a full and fair consideration of the
facts, the Commission may conduct further evidentiary hearings, or may
refer the matter to another presiding officer for development of a
record. In the latter event, unless the Commission provides specific
directions to the presiding officer, that officer shall determine the
procedure to be followed and who shall present evidence, subject to
applicable provisions of law. The hearing must begin as soon as
possible. In the case of an attorney, if no appeal is taken of a
suspension, or, if the suspension is upheld at the conclusion of the
appeal, the presiding officer, or the Commission, as appropriate, shall
notify the state bar(s) to which the attorney is admitted. The
notification must include copies of the order of suspension, and, if an
appeal was taken, briefs of the parties, and the decision of the
Commission.
(4) A suspension exceeding one (1) day is not effective for
seventy-two (72) hours from the date the suspension order is issued.
Within this time, a suspended individual may request a stay of the
sanction from the appropriate reviewing tribunal pending appeal. No
responses to the stay request from other parties will be entertained.
If a timely stay request is filed, the suspension must be stayed until
the reviewing tribunal rules on the motion. The stay request must be in
writing and contain the information specified in Sec. 2.341(b). The
Commission shall rule on the stay request within ten (10) days after
the filing of the motion. The Commission shall consider the factors
specified in Sec. 2.341(e)(1) and (e)(2) in determining whether to
grant or deny a stay application.

Sec. 2.315 Participation by a person not a party.

(a) A person who is not a party may, in the discretion of the
presiding officer, be permitted to make a limited appearance by making
an oral or written statement of his or her position on the issues at
any session of the hearing or any prehearing conference within the
limits and on the conditions fixed by the presiding officer. However,
that person may not otherwise participate in the proceeding. Such
statements of position shall not be considered evidence in the
proceeding.
(b) The Secretary will give notice of a hearing to any person who
requests it before the issuance of the notice of hearing, and will
furnish a copy of the notice of hearing to any person who requests it
thereafter. If a communication bears more than one signature, the
Commission will give the notice to the person first signing unless the
communication clearly indicates otherwise.
(c) The presiding officer will afford representatives of an
interested State, county, municipality, Federally-recognized Indian
Tribe, and/or agencies thereof, a reasonable opportunity to participate
in those proceedings and to introduce evidence, interrogate witnesses
where cross-examination by the parties is permitted, and advise the
Commission without requiring the representative to take a position with
respect to the issue. These representatives may also file proposed
findings in those proceedings where findings are permitted and
petitions for review by the Commission under Sec. 2.340. The presiding
officer may require the representatives to indicate with reasonable
specificity, in advance of the hearing, the subject matters on which
each representative desires to participate.
(d) If a matter is taken up by the Commission under Sec. 2.340 or
sua sponte, a person who is not a party may, in the discretion of the
Commission, be permitted to file a brief ``amicus curiae''. A person
who is not a party and desires to file a brief shall submit a motion
for leave to do so which identifies the interest of the person and
states the reasons why a brief is desirable. Unless the Commission
provides otherwise, the brief must be filed within the time allowed to
the party whose position the brief will support. A motion of a person
who is not a party to participate in oral argument before the
Commission will be granted at the discretion of the Commission.

Sec. 2.316 Consolidation of parties.

On motion or on its or his or her own initiative, the Commission or
the presiding officer may order any parties in a proceeding who have
substantially the same interest that may be affected by the proceeding
and who raise substantially the same questions, to consolidate their
presentation of evidence, cross-examination, briefs, proposed findings
of fact, and conclusions of law and argument. However, it may not order
any consolidation that would prejudice the rights of any party. A
consolidation under this section may be for all purposes of the
proceeding, all of the issues of the proceeding, or with respect to any
one or more issues thereof.

Sec. 2.317 Separate hearings; consolidation of proceedings.

(a) Separate hearings. On motion by the parties or upon request of
the presiding officer for good cause shown, or on its own initiative,
the Commission may establish separate hearings in a proceeding if it is
found that the action will be conducive to the proper dispatch of its
business and to the ends of justice and will be conducted in accordance
with the other provisions of this subpart.
(b) Consolidation of proceedings. On motion and for good cause
shown or on its own initiative, the Commission or the presiding
officers of each affected proceeding may consolidate for hearing or for
other purposes two or more proceedings, or may hold joint hearings with
interested States and/or other Federal agencies on matters of
concurrent jurisdiction, if it is found that the action will be
conducive to the proper dispatch of its business and to the ends of
justice and will be conducted in accordance with the other provisions
of this subpart.

Sec. 2.318 Commencement and termination of jurisdiction of presiding
officer.

(a) Unless the Commission orders otherwise, the jurisdiction of the
presiding officer designated to conduct a hearing over the proceeding,
including motions and procedural matters, commences when the proceeding
commences. If a presiding officer has not been designated, the Chief
Administrative Judge has jurisdiction or, if he or she is unavailable,
another administrative judge has jurisdiction. A proceeding commences
when a notice of hearing or a notice of proposed action under
Sec. 2.105 is issued. When a notice of hearing provides that the
presiding officer is to be an administrative judge, the Chief
Administrative Judge will designate by order the administrative judge
who is to preside. The presiding officer's jurisdiction in each
proceeding terminates when the period within which the Commission may
direct that the record be certified to it for final decision expires,
when the Commission

[[Page 19640]]

renders a final decision, or when the presiding officer withdraws from
the case upon considering himself or herself disqualified, whichever is
earliest.
(b) The Director of Nuclear Reactor Regulation or the Director of
Nuclear Material Safety and Safeguards, as appropriate, may issue an
order and take any otherwise proper administrative action with respect
to a licensee who is a party to a pending proceeding. Any order related
to the subject matter of the pending proceeding may be modified by the
presiding officer as appropriate for the purpose of the proceeding.

Sec. 2.319 Power of the presiding officer.

A presiding officer has the duty to conduct a fair and impartial
hearing according to law, to take appropriate action to control the
prehearing and hearing process, to avoid delay and to maintain order.
The presiding officer has all the powers necessary to those ends,
including the powers to--
(a) Administer oaths and affirmations;
(b) Issue subpoenas authorized by law, including subpoenas
requested by participant for the attendance and testimony of witnesses
or the production of evidence upon the requestor's showing of general
relevance and reasonable scope of the evidence sought;
(c) Consolidate parties and proceedings in accordance with
Secs. 2.316 and 2.317 and/or direct that common interests be
represented by a single spokesperson;
(d) Rule on offers of proof and receive evidence. In proceedings
under this part, strict rules of evidence do not apply to written
submissions. However, the presiding officer may, on motion or on the
presiding officer's own initiative, strike any portion of a written
presentation or a response to a written question that is cumulative,
irrelevant, immaterial, or unreliable;
(e) Restrict irrelevant, duplicative, or repetitive evidence and/or
arguments;
(f) Order depositions to be taken as appropriate;
(g) Regulate the course of the hearing and the conduct of
participants;
(h) Dispose of procedural requests or similar matters;
(i) Examine witnesses;
(j) Hold conferences before or during the hearing for settlement,
simplification of contentions, or any other proper purpose;
(k) Set reasonable schedules for the conduct of the proceeding and
take actions reasonably calculated to maintain overall schedules;
(l) Certify questions to the Commission for its determination,
either in his/her discretion, or on motion of a party or on direction
of the Commission;
(m) Reopen a proceeding for the receipt of further evidence at any
time before the initial decision;
(n) Appoint special assistants from the Atomic Safety and Licensing
Board Panel under Sec. 2.322;
(o) Issue initial decisions as provided in this part; and
(p) Take any other action consistent with the Act, this chapter,
and 5 U.S.C. 551-558.

Sec. 2.320 Default.

If a party fails to file an answer or pleading within the time
prescribed in this part or as specified in the notice of hearing or
pleading, to appear at a hearing or prehearing conference, to comply
with any prehearing order entered by the presiding officer, or to
comply with any discovery order entered by the presiding officer, the
Commission or the presiding officer may make any orders in regard to
the failure that are just, including, among others, the following:
(a) Without further notice, find the facts as to the matters
regarding which the order was made in accordance with the claim of the
party obtaining the order, and enter the order as appropriate; or
(b) Proceed without further notice to take proof on the issues
specified.

Sec. 2.321 Atomic Safety and Licensing Boards.

(a) The Commission or the Chief Administrative Judge may establish
one or more Atomic Safety and Licensing Boards, each comprised of three
members, one of whom will be qualified in the conduct of administrative
proceedings and two of whom have such technical or other qualifications
as the Commission or the Chief Administrative Judge determines to be
appropriate to the issues to be decided. The members of an Atomic
Safety and Licensing Board shall be designated from the Atomic Safety
and Licensing Board Panel established by the Commission. In proceedings
for granting, suspending, revoking, or amending licenses or
authorizations as the Commission may designate, the Atomic Safety and
Licensing Board shall perform the adjudicatory functions that the
Commission determines are appropriate.
(b) The Commission or the Chief Administrative Judge may designate
an alternate qualified in the conduct of administrative proceedings, or
an alternate having technical or other qualifications, or both, for an
Atomic Safety and Licensing Board established under paragraph (a) of
this section. If a member of a board becomes unavailable, the
Commission or the Chief Administrative Judge may constitute the
alternate qualified in the conduct of administrative proceedings, or
the alternate having technical or other qualifications, as appropriate,
as a member of the board by notifying the alternate who will, as of the
date of the notification, serve as a member of the board. If an
alternate is unavailable or no alternates have been designated, and a
member of a board becomes unavailable, the Commission or Chief
Administrative Judge may appoint a member of the Atomic Safety and
Licensing Board Panel who is qualified in the conduct of administrative
proceedings or a member having technical or other qualifications, as
appropriate, as a member of the Atomic Safety and Licensing Board by
notifying the appointee who will, as of the date of the notification,
serve as a member of the board.
(c) An Atomic Safety and Licensing Board has the duties and may
exercise the powers of a presiding officer as granted by Sec. 2.319 and
otherwise in this part. Any time when a board is in existence but is
not actually in session, any powers which could be exercised by a
presiding officer or by the Chief Administrative Judge may be exercised
with respect to the proceeding by the chairman of the board having
jurisdiction over it. Two members of an Atomic Safety and Licensing
Board constitute a quorum if one of those members is the member
qualified in the conduct of administrative proceedings.

Sec. 2.322 Special assistants to the presiding officer.

(a) In consultation with the Chief Administrative Judge, the
presiding officer may, at his or her discretion, appoint personnel from
the Atomic Safety and Licensing Board Panel established by the
Commission to assist the presiding officer in taking evidence and
preparing a suitable record for review. The appointment may occur at
any appropriate time during the proceeding but must, at the time of the
appointment, be subject to the notice and disqualification provisions
as described in Sec. 2.313. The special assistants may function as:
(1) Technical interrogators in their individual fields of
expertise. The interrogators must study the written testimony and sit
with the presiding officer to hear the presentation and cross-
examination by the parties of all witnesses on the issues of the
interrogators' expertise, and take a leading role in examining the
witnesses

[[Page 19641]]

to ensure that the record is as complete as possible;
(2) Upon consent of all the parties, special masters to hear
evidentiary presentations by the parties on specific technical matters,
and, upon completion of the presentation of evidence, to prepare a
report that would become part of the record. Special masters may rule
on evidentiary issues brought before them, in accordance with
Sec. 2.333. Appeals from special masters' rulings may be taken to the
presiding officer in accordance with procedures established in the
presiding officer's order appointing the special master. Special
masters' reports are advisory only; the presiding officer retains final
authority with respect to the issues heard by the special master; or
(3) Alternate Atomic Safety and Licensing Board members to sit with
the presiding officer, to participate in the evidentiary sessions on
the issue for which the alternate members were designated by examining
witnesses, and to advise the presiding officer of their conclusions
through an on-the-record report. This report is advisory only; the
presiding officer retains final authority on the issue for which the
alternate member was designated.
(4) Discovery master to rule on the matters specified in
Sec. 2.1018(a)(2).
(b) The presiding officer may, as a matter of discretion,
informally seek the assistance of members of the Atomic Safety and
Licensing Board Panel to brief the presiding officer on the general
technical background of subjects involving complex issues that the
presiding officer might otherwise have difficulty in quickly grasping.
These briefings take place before the hearing on the subject involved
and supplement the reading and study undertaken by the presiding
officer. They are not subject to the procedures described in
Sec. 2.313.

Sec. 2.323 Motions.

(a) Presentation and disposition. All motions must be addressed to
the Commission or other designated presiding officer. All written
motions must be filed with the Secretary and served on all parties to
the proceeding.
(b) Form and content. Unless made orally on the record during a
hearing, or the presiding officer directs otherwise, or under the
provisions of subpart N of this part, a motion must be in writing,
state with particularity the grounds and the relief sought, be
accompanied by any affidavits or other evidence relied on, and, as
appropriate, a proposed form of order. A motion must be rejected if it
does not include a certification by the attorney or representative of
the moving party that the movant has made a sincere effort to contact
other parties in the proceeding and resolve the issue(s) raised in the
motion, and that the movant's efforts to resolve the issue(s) have been
unsuccessful.
(c) Answers to motions. Within ten (10) days after service of a
written motion, or other period as determined by the Secretary, the
Assistant Secretary, or the presiding officer, a party may file an
answer in support of or in opposition to the motion, accompanied by
affidavits or other evidence. The moving party has no right to reply,
except as permitted by the Secretary, the Assistant Secretary, or the
presiding officer. Permission may be granted only in compelling
circumstances, such as where the moving party demonstrates that it
could not reasonably have anticipated the arguments to which it seeks
leave to reply.
(d) Accuracy in filing. All parties are obligated, in their filings
before the presiding officer and the Commission, to ensure that their
arguments and assertions are supported by appropriate and accurate
references to legal authority and factual basis, including, as
appropriate, citations to the record. Failure to do so may result in
appropriate sanctions, including striking a matter from the record or,
in extreme circumstances, dismissal of the party.
(e) Motions for reconsideration. Motions for reconsideration may
not be filed except upon leave of the presiding officer or the
Commission, upon a showing of compelling circumstances, such as the
existence of a clear and material error in a decision, which could not
have reasonably been anticipated, that renders the decision invalid. A
motion must be filed within ten (10) days of the action for which
reconsideration is requested. The motion and any responses to the
motion are limited to ten (10) pages.
(f) Referral and certifications to the Commission.
(1) If, in the judgment of the presiding officer, prompt decision
is necessary to prevent detriment to the public interest or unusual
delay or expense, or if the presiding officer determines that the
decision or ruling involves a novel issue that merits Commission review
at the earliest opportunity, the presiding officer may refer the ruling
promptly to the Commission. The presiding officer must notify the
parties of the referral either by announcement on the record or by
written notice if the hearing is not in session.
(2) A party may petition the presiding officer to certify an issue
to the Commission for early review. The presiding officer shall apply
the alternative standards of Sec. 2.340(f) in ruling on the petition
for certification. No motion for reconsideration of the presiding
officer's ruling on a petition for certification will be entertained.
(g) Effect of filing a motion, petition, or certification of
question to the Commission. Unless otherwise ordered, neither the
filing of a motion, the filing of a petition for certification, nor the
certification of a question to the Commission stays the proceeding or
extends the time for the performance of any act.
(h) Motions to compel discovery. Parties may file answers to
motions to compel discovery in accordance with paragraph (c) of this
section. The presiding officer, in his or her discretion, may order
that the answer be given orally during a telephone conference or other
prehearing conference, rather than in writing. If responses are given
over the telephone, the presiding officer shall issue a written order
on the motion summarizing the views presented by the parties. This does
not preclude the presiding officer from issuing a prior oral ruling on
the matter effective at the time of the ruling, if the terms of the
ruling are incorporated in the subsequent written order.

Sec. 2.324 Order of procedure.

The presiding officer or the Commission will designate the order of
procedure at a hearing. The proponent of an order will ordinarily open
and close.

Sec. 2.325 Burden of proof.

Unless the presiding officer otherwise orders, the applicant or the
proponent of an order has the burden of proof.

Sec. 2.326 Motions to reopen.

(a) A motion to reopen a closed record to consider additional
evidence will not be granted unless the following criteria are
satisfied:
(1) The motion must be timely. However, an exceptionally grave
issue may be considered in the discretion of the presiding officer even
if untimely presented.
(2) The motion must address a significant safety or environmental
issue.
(3) The motion must demonstrate that a materially different result
would be or would have been likely had the newly proffered evidence
been considered initially.
(b) The motion must be accompanied by affidavits that set forth the
factual and/or technical bases for the movant's claim that the criteria
of paragraph (a)

[[Page 19642]]

of this section have been satisfied. Affidavits must be given by
competent individuals with knowledge of the facts alleged, or by
experts in the disciplines appropriate to the issues raised. Evidence
contained in affidavits must meet the admissibility standards of
subpart G. Each of the criteria must be separately addressed, with a
specific explanation of why it has been met. When multiple allegations
are involved, the movant must identify with particularity each issue it
seeks to litigate and specify the factual and/or technical bases which
it believes support the claim that this issue meets the criteria in
paragraph (a) of this section.
(c) A motion predicated in whole or in part on the allegations of a
confidential informant must identify to the presiding officer the
source of the allegations and must request the issuance of an
appropriate protective order.
(d) A motion to reopen which relates to a contention not previously
in controversy among the parties must also satisfy the requirements for
nontimely contentions in Sec. 2.309(c).

Sec. 2.327 Official recording; transcript.

(a) Recording hearings. A hearing will be recorded stenographically
or by other means under the supervision of the presiding officer. If
the hearing is recorded on videotape or some other video medium, before
an official transcript is prepared under paragraph (b) of this section,
that video recording will be considered to constitute the record of
events at the hearing.
(b) Official transcript. For each hearing, a transcript will be
prepared from the recording made in accordance with paragraph (a) of
this section that will be the sole official transcript of the hearing.
The transcript will be prepared by an official reporter who may be
designated by the Commission or may be a regular employee of the
Commission. Except as limited by Section 181 of the Act or order of the
Commission, the transcript will be available for inspection in the
agency's public records system.
(c) Availability of copies. Copies of transcripts prepared in
accordance with paragraph (b) of this section are available to the
parties and to the public from the official reporter on payment of the
charges fixed therefore. If a hearing is recorded on videotape or other
video medium, copies of the recording of each daily session of the
hearing may be made available to the parties and to the public from the
presiding officer upon payment of a charge specified by the Chief
Administrative Judge.
(d) Transcript corrections. Corrections of the official transcript
may be made only in the manner provided by this paragraph. Corrections
ordered or approved by the presiding officer must be included in the
record as an appendix. When so incorporated, the Secretary shall make
the necessary physical corrections in the official transcript so that
it will incorporate the changes ordered. In making corrections, pages
may not be substituted but, to the extent practicable, corrections must
be made by running a line through the matter to be changed without
obliteration and writing the matter as changed immediately above. If
the correction consists of an insertion, it must be added by rider or
interlineation as near as possible to the text which is intended to
precede and follow it.

Sec. 2.328 Hearings to be public.

Except as may be requested under Section 181 of the Act, all
hearings will be public unless otherwise ordered by the Commission.

Sec. 2.329 Prehearing conference.

(a) Necessity for prehearing conference; timing. The Commission or
the presiding officer may, and in the case of a proceeding on an
application for a construction permit or an operating license for a
facility of a type described in Secs. 50.21(b) or 50.22 of this chapter
or a testing facility, shall direct the parties or their counsel to
appear at a specified time and place for a conference or conferences
before trial. A prehearing conference in a proceeding involving a
construction permit or operating license for a facility of a type
described in Secs. 50.21(b) or 50.22 of this chapter must be held
within sixty (60) days after discovery has been completed or any other
time specified by the Commission or the presiding officer.
(b) Objectives. The following subjects may be discussed, as
directed by the Commission or the presiding officer, at the prehearing
conference:
(1) Expediting the disposition of the proceeding;
(2) Establishing early and continuing control so that the
proceeding will not be protracted because of lack of management;
(3) Discouraging wasteful prehearing activities;
(4) Improving the quality of the hearing through more thorough
preparation, and;
(5) Facilitating the settlement of the proceeding or any portions
of it.
(c) Other matters for consideration. As appropriate for the
particular proceeding, a prehearing conference may be held to consider
such matters as:
(1) Simplification, clarification, and specification of the issues;
(2) The necessity or desirability of amending the pleadings;
(3) Obtaining stipulations and admissions of fact and the contents
and authenticity of documents to avoid unnecessary proof, and advance
rulings from the presiding officer on the admissibility of evidence;
(4) The appropriateness and timing of summary disposition motions
under Subparts G and L including appropriate limitations on the page
length of motions and responses thereto;
(5) The control and scheduling of discovery, including orders
affecting disclosures and discovery under the discovery provisions in
subpart G.
(6) Identification of witnesses and documents, and the limitation
of the number of expert witnesses, and other steps to expedite the
presentation of evidence, including the establishment of reasonable
limits on the time allowed for presenting direct and cross-examination
evidence;
(7) The disposition of pending motions;
(8) Settlement and the use of special procedures to assist in
resolving any issues in the proceeding;
(9) The need to adopt special procedures for managing potentially
difficult or protracted proceedings that may involve particularly
complex issues, including the establishment of separate hearings with
respect to any particular issue in the proceeding;
(10) The setting of a hearing schedule, including any appropriate
limitations on the scope and time permitted for cross-examination; and
(11) Other matters that the Commission or presiding officer
determines may aid in the just and orderly disposition of the
proceeding.
(d) Reports. Prehearing conferences may be reported
stenographically or by other means.
(e) Prehearing conference order. The presiding officer shall enter
an order that recites the action taken at the conference, the
amendments allowed to the pleadings and agreements by the parties, and
the issues or matters in controversy to be determined in the
proceeding. Any objections to the order must be filed by a party within
five (5) days after service of the order. Parties may not file replies
to the objections unless the presiding officer so directs. The filing
of objections does not stay the decision unless the presiding officer
so orders. The presiding officer may revise the order in the light of
the objections presented and, as permitted by Sec. 2.319(l), may
certify for determination to the Commission any matter raised in

[[Page 19643]]

the objections the presiding officer finds appropriate. The order
controls the subsequent course of the proceeding unless modified for
good cause.

Sec. 2.330 Stipulations.

Apart from any stipulations made during or as a result of a
prehearing conference, the parties may stipulate in writing at any
stage of the proceeding or orally during the hearing, any relevant fact
or the contents or authenticity of any document. These stipulations may
be received in evidence. The parties may also stipulate as to the
procedure to be followed in the proceeding. These stipulations may, on
motion of all parties, be recognized by the presiding officer to govern
the conduct of the proceeding.

Sec. 2.331 Oral argument before presiding officer.

When, in the opinion of the presiding officer, time permits and the
nature of the proceeding and the public interest warrant, he or she may
allow, and fix a time for, the presentation of oral argument. The
presiding officer will impose appropriate limits of time on the
argument. The transcript of the argument is part of the record.

2.332 General case scheduling and management.

(a) Scheduling order. The presiding officer shall, as soon as
practicable after consulting with the parties by a scheduling
conference, telephone, mail, or other suitable means, enter a
scheduling order that establishes limits for the time to file motions,
conclude discovery, and take other actions in the proceeding. The
scheduling order may also include:
(1) Modifications of the times for disclosures under Sec. 2.704 and
of the extent of discovery to be permitted;
(2) The date or dates for prehearing conferences, and hearings; and
(3) Any other matters appropriate in the circumstances of the
proceeding.
(b) Modification of schedule. A schedule may not be modified except
upon a finding by the presiding officer or the Commission of good
cause. In making such a good cause determination, the presiding officer
or the Commission should take into account the following factors, among
other things:
(1) Whether the requesting party has exercised due diligence to
adhere to the schedule;
(2) Whether the requested change is the result of unavoidable
circumstances; and
(3) Whether the other parties have agreed to the change and the
overall effect of the change on the schedule of the case.
(c) Objectives of scheduling order. The scheduling order must have
as its objectives proper case management purposes such as:
(1) Expediting the disposition of the proceeding;
(2) Establishing early and continuing control so that the
proceeding will not be protracted because of lack of management;
(3) Discouraging wasteful prehearing activities;
(4) Improving the quality of the hearing through more thorough
preparation; and
(5) Facilitating the settlement of the proceeding or any portions
thereof, including the use of such methods as Alternative Dispute
Resolution, when and if the presiding officer, upon consultation with
the parties, determines that these types of efforts should be pursued.
(d) Effect of NRC staff's schedule on scheduling order. In
establishing a schedule, the presiding officer shall take into
consideration the NRC staff's projected schedule for completion of its
safety and environmental evaluations to ensure that the hearing
schedule does not adversely impact the staff's ability to complete its
reviews in a timely manner. Hearings on safety issues may be commenced
before publication of the NRC staff's safety evaluation upon a finding
by the presiding officer that commencing the hearings at that time
would expedite the proceeding. Where an environmental impact statement
(EIS) is involved, hearings on environmental issues addressed in the
EIS may not commence before the issuance of the final EIS. In addition,
discovery against the NRC staff on safety or environmental issues,
respectively, should be suspended until the staff has issued the SER or
EIS, unless the presiding officer finds that the commencement of
discovery before the publication of the pertinent review document will
expedite the hearing.

Sec. 2.333 Authority of the presiding officer to regulate procedure in
a hearing.

To prevent unnecessary delays or an unnecessarily large record, the
presiding officer may:
(a) Limit the number of witnesses whose testimony may be
cumulative;
(b) Strike argumentative, repetitious, cumulative, or irrelevant
evidence;
(c) Take necessary and proper measures to prevent argumentative,
repetitious, or cumulative cross-examination; and
(d) Impose such time limitations on arguments as he or she
determines appropriate, having regard for the volume of the evidence
and the importance and complexity of the issues involved.

Sec. 2.334 Schedules for proceedings.

(a) Unless the Commission directs otherwise in a particular
proceeding, the residing officer or the Atomic Safety and Licensing
Board assigned to the proceeding shall, based on information and
projections provided by the parties and the NRC staff, establish and
take appropriate action to maintain a schedule for the completion of
the evidentiary record and, as appropriate, the issuance of its initial
decision.
(b) The presiding officer or the Atomic Safety and Licensing Board
assigned to the proceeding shall provide written notification to the
Commission any time during the course of the proceeding when it appears
that the completion of the record or the issuance of the initial
decision will be delayed more than sixty (60) days beyond the time
specified in the schedule established under Sec. 2.334(a). The
notification must include an explanation of the reasons for the
projected delay and a description of the actions, if any, that the
presiding officer or the Board proposes to take to avoid or mitigate
the delay.

Sec. 2.335 Consideration of Commission rules and regulations in
adjudicatory proceedings.

(a) Except as provided in paragraphs (b), (c), and (d) of this
section, any rule or regulation of the Commission, or any provision
thereof, concerning the licensing of production and utilization
facilities, source material, special nuclear material, or byproduct
material, is not subject to attack by way of discovery, proof,
argument, or other means in any adjudicatory proceeding subject to this
part.
(b) A party to an adjudicatory proceeding subject to this part may
petition that the application of a specified Commission rule or
regulation or any provision thereof, of the type described in paragraph
(a) of this section, be waived or an exception made for the particular
proceeding. The sole ground for petition of waiver or exception is that
special circumstances with respect to the subject matter of the
particular proceeding are such that the application of the rule or
regulation (or a provision of it) would not serve the purposes for
which the rule or regulation was adopted. The petition must be
accompanied by an affidavit that identifies the specific aspect or
aspects of the subject matter of the proceeding as to which the
application

[[Page 19644]]

of the rule or regulation (or provision of it) would not serve the
purposes for which the rule or regulation was adopted. The affidavit
must state with particularity the special circumstances alleged to
justify the waiver or exception requested. Any other party may file a
response by counter affidavit or otherwise.
(c) If, on the basis of the petition, affidavit and any response
permitted under paragraph (b) of this section, the presiding officer
determines that the petitioning party has not made a prima facie
showing that the application of the specific Commission rule or
regulation (or provision thereof) to a particular aspect or aspects of
the subject matter of the proceeding would not serve the purposes for
which the rule or regulation was adopted and that application of the
rule or regulation should be waived or an exception granted, no
evidence may be received on that matter and no discovery, cross-
examination or argument directed to the matter will be permitted, and
the presiding officer may not further consider the matter.
(d) If, on the basis of the petition, affidavit and any response
provided for in paragraph (b) of this section, the presiding officer
determines that the prima facie showing required by paragraph (b) of
this section has been made, the presiding officer shall, before ruling
on the petition, certify the matter directly to the Commission (the
matter will be certified to the Commission notwithstanding other
provisions on certification in this part) for a determination in the
matter of whether the application of the Commission rule or regulation
or provision thereof to a particular aspect or aspects of the subject
matter of the proceeding, in the context of this section, should be
waived or an exception made. The Commission may, among other things, on
the basis of the petition, affidavits, and any response, determine
whether the application of the specified rule or regulation (or
provision thereof) should be waived or an exception be made. The
Commission may direct further proceedings as it considers appropriate
to aid its determination.
(e) Whether or not the procedure in paragraph (b) of this section
is available, a party to an initial or renewal licensing proceeding may
file a petition for rulemaking under Sec. 2.802.

Sec. 2.336 General discovery.

(a) Except for proceedings conducted under subparts G and J of this
part or as otherwise ordered by the Commission, the presiding officer
or the Atomic Safety and Licensing Board assigned to the proceeding,
all parties, other than the NRC staff, to any proceeding subject to
this part shall, within thirty (30) days of the issuance of the order
granting a request for hearing or petition to intervene and without
further order or request from any party, disclose and provide:
(1) The name and, if known, the address and telephone number of any
person, including any expert, upon whose opinion the party bases its
claims and contentions and a copy of the analysis or other authority
upon which that person bases his or her opinion;
(2) The name and, if known, the address and telephone number of
each person that the party believes is likely to have discoverable
information relevant to the admitted contentions;
(3)(i) A copy, or a description by category and location, of all
documents and data compilations in the possession, custody, or control
of the party that are relevant to the contentions, provided that if
only a description is provided of a document or data compilation, a
party shall have the right to request copies of that document and/or
data compilation, and
(ii) A copy (for which there is no claim of privilege or protected
status), or a description by category and location, of all tangible
things (e.g., books, publications and treatises) in the possession,
custody or control of the party that are relevant to the contention.
(4) All other documents (for which there is no claim of privilege
or protected status) that, to the party's knowledge, provide direct
support for, or opposition to, the application or other proposed action
that is the subject of the proceeding, and
(5) A list of all discoverable documents for which a claim of
privilege or protected status is being made, together with sufficient
information for assessing the claim of privilege or protected status of
the documents.
(b) The NRC staff shall, within thirty (30) days of the issuance of
the order granting a request for hearing or petition to intervene and
without further order or request from any party, disclose and/or
provide, to the extent available (but excluding those documents for
which there is a claim of privilege or protected status):
(1) The application and/or applicant/licensee requests associated
with the application or proposed action that is the subject of the
proceeding;
(2) NRC correspondence with the applicant or licensee associated
with the application or proposed action that is the subject of the
proceeding;
(3) All documents (including documents that provide support for, or
opposition to, the application or proposed action) supporting the NRC
staff's review of the application or proposed action that is the
subject of the proceeding;
(4) Any NRC staff documents (except those documents for which there
is a claim of privilege or protected status) which act on the
application or proposal that is the subject of the proceeding; and
(5) A list of all discoverable documents for which a claim of
privilege or protected status is being made, together with sufficient
information for assessing the claim of privilege or protected status of
the documents.
(c) Each party and the NRC staff shall make its initial disclosures
under paragraphs (a) and (b) of this section, based on the information
and documentation then reasonably available to it. A party, including
the NRC staff, is not excused from making the required disclosures
because it has not fully completed its investigation of the case, it
challenges the sufficiency of another entity's disclosures, or that
another entity has not yet made its disclosures. All disclosures under
this section must be accompanied by a certification (by sworn
affidavit) that all relevant materials required by this section have
been disclosed, and that the disclosures are accurate and complete as
of the date of the certification.
(d) The duty of disclosure under this section is continuing, and
any information or documents that are subsequently developed or
obtained must be disclosed within fourteen (14) days.
(e)(1)The presiding officer may impose sanctions, including
dismissal of specific contentions, dismissal of the adjudication,
denial or dismissal of the application or proposed action, or the use
of subpart G discovery provisions against the offending party, for the
offending party's continuing unexcused failure to make the disclosures
required by this section.
(2) The presiding officer may impose sanctions on a party that
fails to provide any document or witness name required to be disclosed
under this section, unless the party demonstrates good cause for its
failure to make the disclosure required by this section. A sanction
that may be imposed by the presiding officer is prohibiting the
admission into evidence of documents or testimony of the witness
proffered by the offending party in support of its case.

[[Page 19645]]

(f) The disclosures required by this section constitute the sole
discovery permitted for NRC proceedings under this part unless there is
further provision for discovery under the specific subpart under which
the hearing will be conducted or unless the Commission provides
otherwise in a specific proceeding.

Sec. 2.337 Settlement of issues; alternative dispute resolution.

The fair and reasonable settlement and resolution of issues
proposed for litigation in proceedings subject to this part is
encouraged. Parties are encouraged to employ various methods of
alternate dispute resolution to address the issues without the need for
litigation in proceedings subject to this part.
(a) Availability. The parties shall have the opportunity to submit
a proposed settlement of some or all issues to the Commission or
presiding officer, as appropriate, or submit a request for alternative
dispute resolution under paragraph (b) of this section.
(b) Settlement judge; alternative dispute resolution.
(1) The presiding officer, upon joint motion of the parties, may
request the Chief Administrative Judge to appoint a Settlement Judge to
conduct settlement negotiations or remit the proceeding to alternative
dispute resolution as the Commission may provide or to which the
parties may agree. The order appointing the Settlement Judge may
confine the scope of settlement negotiations to specified issues. The
order must direct the Settlement Judge to report to the Chief
Administrative Judge at specified time periods.
(2) If a Settlement Judge is appointed, the Settlement Judge shall:
(i) Convene and preside over conferences and settlement
negotiations between the parties and assess the practicalities of a
potential settlement.
(ii) Report to the Chief Administrative Judge describing the status
of the settlement negotiations and recommending the termination or
continuation of the settlement negotiations, and
(iii) Not discuss the merits of the case with the Chief
Administrative Judge or any other person, or appear as a witness in the
case.
(3) Settlement negotiations conducted by the Settlement Judge
terminate upon the order of the Chief Administrative Judge issued after
consultation with the Settlement Judge.
(4) No decision concerning the appointment of a Settlement Judge or
the termination of the settlement negotiation is subject to review by,
appeal to, or rehearing by the presiding officer or the Commission.
(c) Availability of parties' attorneys or representatives. The
presiding officer (or Settlement Judge) may require that the attorney
or other representative who is expected to try the case for each party
be present and that the parties, or agents having full settlement
authority, also be present or available by telephone.
(d) Admissibility in subsequent hearing. No evidence, statements,
or conduct in settlement negotiations under this section will be
admissible in any subsequent hearing, except by stipulation of the
parties. Documents disclosed may not be used in litigation unless
obtained through appropriate discovery or subpoena.
(e) Imposition of additional requirements. The presiding officer
(or Settlement Judge) may impose on the parties and persons having an
interest in the outcome of the adjudication additional requirements as
the presiding officer (or Settlement Judge) finds necessary for the
fair and efficient resolution of the case.
(f) Effects of ongoing settlement negotiations. The conduct of
settlement negotiations does not divest the presiding officer of
jurisdiction and does not automatically stay the proceeding. A hearing
must not be unduly delayed because of the conduct of settlement
negotiations.
(g) Form. A settlement must be in the form of a proposed settlement
agreement, a consent order, and a motion for its entry that includes
the reasons why it should be accepted. It must be signed by the
consenting parties or their authorized representatives.
(h) Content of settlement agreement. The proposed settlement
agreement must contain the following:
(1) An admission of all jurisdictional facts;
(2) An express waiver of further procedural steps before the
presiding officer, of any right to challenge or contest the validity of
the order entered into in accordance with the agreement, and of all
rights to seek judicial review or otherwise to contest the validity of
the consent order;
(3) A statement that the order has the same force and effect as an
order made after full hearing; and
(4) A statement that matters identified in the agreement, required
to be adjudicated have been resolved by the proposed settlement
agreement and consent order.
(i) Approval of settlement agreement. Following issuance of a
notice of hearing, a settlement must be approved by the presiding
officer or the Commission as appropriate in order to be binding in the
proceeding. The presiding officer or Commission may order the
adjudication of the issues that the presiding officer or Commission
finds is required in the public interest to dispose of the proceeding.
In an enforcement proceeding under subpart B of this part, the
presiding officer shall accord due weight to the position of the NRC
staff when reviewing the settlement. If approved, the terms of the
settlement or compromise must be embodied in a decision or order
settling and terminating the proceeding. Settlements approved by a
presiding officer are subject to the Commission's review in accordance
with Sec. 2.340.

Sec. 2.338 Expedited decisionmaking procedure.

(a) The presiding officer may determine a proceeding by an order
after the conclusion of a hearing without issuing an initial decision,
when:
(1) All parties stipulate that the initial decision may be omitted
and waive their rights to file a petition for review, to request oral
argument, and to seek judicial review;
(2) No unresolved substantial issue of fact, law, or discretion
remains, and the record clearly warrants granting the relief requested;
and
(3) The presiding officer finds that dispensing with the issuance
of the initial decision is in the public interest.
(b) An order entered under paragraph (a) of this section is subject
to review by the Commission on its own motion within forty (40) days
after its date.
(c) An initial decision may be made effective immediately, subject
to review by the Commission on its own motion within thirty (30) days
after its date, except as otherwise provided in this chapter, when:
(1) All parties stipulate that the initial decision may be made
effective immediately and waive their rights to file a petition for
review, to request oral argument, and to seek judicial review;
(2) No unresolved substantial issue of fact, law, or discretion
remains and the record clearly warrants granting the relief requested;
and
(3) The presiding officer finds that it is in the public interest
to make the initial decision effective immediately.
(d) The provisions of this section do not apply to an initial
decision directing the issuance or amendment of a construction permit
or construction authorization, or the issuance of an operating license
or provisional operating authorization.

[[Page 19646]]

Sec. 2.339 Initial decision in contested proceedings on applications
for facility operating licenses; immediate effectiveness of initial
decision directing issuance or amendment of construction permit or
operating license.

(a) Production or utilization facility operating license. In any
initial decision in a contested proceeding on an application for an
operating license for a production or utilization facility, the
presiding officer shall make findings of fact and conclusions of law on
the matters put into controversy by the parties to the proceeding and
on matters which have been determined to be the issues in the
proceeding by the Commission or the presiding officer. Matters not put
into controversy by the parties will be examined and decided by the
presiding officer only where he or she determines that a serious
safety, environmental, or common defense and security matter exists.
Depending on the resolution of those matters, the Director of Nuclear
Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, after making the requisite findings, will
issue, deny or appropriately condition the license.
(b) Immediate effectiveness of certain decisions. Except as
provided in paragraphs (d) through (g) of this section, or as otherwise
ordered by the Commission in special circumstances, an initial decision
directing the issuance or amendment of a construction permit, a
construction authorization, an operating license or a license under 10
CFR part 72 to store spent fuel in an independent spent fuel storage
installation (ISFSI) at a reactor site is effective immediately upon
issuance unless the presiding officer finds that good cause has been
shown by a party why the initial decision should not become immediately
effective, subject to review thereof and further decision by the
Commission upon petition for review filed by any party under Sec. 2.340
or upon its own motion.
(c) Issuance of license after initial decision. Except as provided
in paragraphs (d) through (g) of this section, or as otherwise ordered
by the Commission in special circumstances, the Director of Nuclear
Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, notwithstanding the filing or granting of a
petition for review, shall issue a construction permit, a construction
authorization, an operating license, or a license under 10 CFR part 72
to store spent fuel in an independent spent fuel storage installation
at a reactor site, or amendments thereto, authorized by an initial
decision, within ten (10) days from the date of issuance of the
decision.
(d) Immediate effectiveness of initial decisions on a ISFSI and
MRS. An initial decision directing the issuance of an initial license
for the construction and operation of an independent spent fuel storage
installation (ISFSI) located at a site other than a reactor site or a
monitored retrievable storage installation (MRS) under 10 CFR part 72
becomes effective only upon order of the Commission. The Director of
Nuclear Material Safety and Safeguards may not issue an initial license
for the construction and operation of an independent spent fuel storage
installation (ISFSI) located at a site other than a reactor site or a
monitored retrievable storage installation (MRS) under 10 CFR part 72
until expressly authorized to do so by the Commission.
(e) [Reserved].
(f) Nuclear power reactor construction permits.
(1) Atomic Safety and Licensing Boards. Atomic Safety and Licensing
Boards shall hear and decide all issues that come before them,
indicating in their decisions the type of licensing action, if any,
which their decision would authorize. The Board's decisions concerning
construction permits are not effective until the Commission actions
outlined in paragraph (f)(2) of this section have taken place.
(2) Commission. Within sixty (60) days of the service of any
Licensing Board decision that would otherwise authorize issuance of a
construction permit, the Commission will seek to issue a decision on
any stay motions that are timely filed. These motions must be filed as
provided by Sec. 2.341. For the purpose of this paragraph, a stay
motion is one that seeks to defer the effectiveness of a Licensing
Board decision beyond the period necessary for the Commission action
described herein. If no stay papers are filed, the Commission will,
within the same time period (or earlier if possible), analyze the
record and construction permit decision below on its own motion and
will seek to issue a decision on whether a stay is warranted. However,
the Commission will not decide that a stay is warranted without giving
the affected parties an opportunity to be heard. The initial decision
will be considered stayed pending the Commission's decision. In
deciding these stay questions, the Commission shall employ the
procedures set out in Sec. 2.341.
(g) Nuclear power reactor operating licenses.
(1) Atomic Safety and Licensing Boards. Atomic Safety and Licensing
Boards shall hear and decide all issues that come before them,
indicating in their decisions the type of licensing action, if any,
which their decision would authorize. A Board's decision authorizing
issuance of an operating license may not become effective if it
authorizes operating at greater than five (5) percent of rated power
until the Commission actions outlined in paragraph (g)(2) of this
section have taken place. If a decision authorizes operation up to five
(5) percent, the decision is effective and the Director shall issue the
appropriate license in accordance with paragraph (c) of this section.
(2) The Commission.
(i) Reserving the power to step in at an earlier time, the
Commission will, upon receipt of the Licensing Board decision
authorizing issuance of an operating license, other than a decision
authorizing only fuel loading and low power (up to five (5) percent of
rated power) testing, review the matter on its own motion to determine
whether to stay the effectiveness of the decision. An operating license
decision will be stayed by the Commission, insofar as it authorizes
other than fuel loading and low power testing, if it determines that it
is in the public interest to do so, based on a consideration of the
gravity of the substantive issue, the likelihood that it has been
resolved incorrectly below, the degree to which correct resolution of
the issue would be prejudiced by operation pending review, and other
relevant public interest factors.
(ii) For operating license decisions other than those authorizing
only fuel loading and low power testing consistent with the target
schedule set forth below, the parties may file brief comments with the
Commission pointing out matters which, in their view, pertain to the
immediate effectiveness issue. To be considered, these comments must be
received within ten (10) days of the Board decision. However, the
Commission may dispense with comments by so advising the parties. An
extensive stay will not be issued without giving the affected parties
an opportunity to be heard.
(iii) The Commission intends to issue a stay decision within thirty
(30) days of receipt of the Licensing Board's decision. The Licensing
Board's initial decision will be considered stayed pending the
Commission's decision insofar as it may authorize operations other than
fuel loading and low power (up to five (5) percent of rated power)
testing.
(iv) In announcing a stay decision, the Commission may allow the
proceeding to run its ordinary course or give

[[Page 19647]]

instructions as to the future handling of the proceeding. Furthermore,
the Commission may, in a particular case, determine that compliance
with existing regulations and policies may no longer be sufficient to
warrant approval of a license application and may alter those
regulations and policies.
(h) Lack of prejudice of Commission effectiveness decision. The
Commission's effectiveness determination is entirely without prejudice
to proceedings under Secs. 2.340 or 2.341.

Sec. 2.340 Review of decisions and actions of a presiding officer.

(a)(1) Except for requests for review or appeals of actions under
Sec. 2.311 or in a proceeding on the high-level waste geologic
repository (which are governed by Sec. 2.1015), review of decisions and
actions of a presiding officer are treated under this section.
(2) Within forty (40) days after the date of a decision or action
by a presiding officer, or within forty (40) days after a petition for
review of the decision or action has been served under paragraph (b) of
this section, whichever is greater, the Commission may review the
decision or action on its own motion, unless the Commission, in its
discretion, extends the time for its review.
(b)(1) Within fifteen (15) days after service of a full or partial
initial decision by a presiding officer, and within fifteen (15) days
after service of any other decision or action by a presiding officer
with respect to which a petition for review is authorized by this part,
a party may file a petition for review with the Commission on the
grounds specified in paragraph (b)(4) of this section. The filing of a
petition for review is mandatory for a party to exhaust its
administrative remedies before seeking judicial review.
(2) A petition for review under this paragraph may not be longer
than twenty-five (25) pages, and must contain the following:
(i) A concise summary of the decision or action of which review is
sought;
(ii) A statement (including record citation) where the matters of
fact or law raised in the petition for review were previously raised
before the presiding officer and, if they were not, why they could not
have been raised;
(iii) A concise statement why in the petitioner's view the decision
or action is erroneous; and
(iv) A concise statement why Commission review should be exercised.
(3) Any other party to the proceeding may, within ten (10) days
after service of a petition for review, file an answer supporting or
opposing Commission review. This answer may not be longer than twenty-
five (25) pages and should concisely address the matters in paragraph
(b)(2) of this section to the extent appropriate. The petitioning party
may file a reply brief within five (5) days of service of any answer.
This reply brief may not be longer than five (5) pages.
(4) The petition for review may be granted in the discretion of the
Commission, giving due weight to the existence of a substantial
question with respect to the following considerations:
(i) A finding of material fact is clearly erroneous or in conflict
with a finding as to the same fact in a different proceeding;
(ii) A necessary legal conclusion is without governing precedent or
is a departure from or contrary to established law;
(iii) A substantial and important question of law, policy, or
discretion has been raised;
(iv) The conduct of the proceeding involved a prejudicial
procedural error; or
(v) Any other consideration which the Commission may deem to be in
the public interest.
(5) A petition for review will not be granted to the extent that it
relies on matters that could have been but were not raised before the
presiding officer. A matter raised sua sponte by a presiding officer
has been raised before the presiding officer for the purpose of this
section.
(6) A petition for review will not be granted as to issues raised
before the presiding officer on a pending motion for reconsideration.
(c)(1) If a petition for review is granted, the Commission will
issue an order specifying the issues to be reviewed and designating the
parties to the review proceeding. The Commission may, in its
discretion, decide the matter on the basis of the petition for review
or it may specify whether any briefs be filed, oral argument be held,
or both.
(2) Unless the Commission orders otherwise, any briefs on review
may not exceed thirty (30) pages in length, exclusive of pages
containing the tables of contents, table of citations, and any addendum
containing appropriate exhibits, statutes, or regulations. A brief in
excess of ten (10) pages must contain a table of contents with page
references and a table of cases (alphabetically arranged), cited
statutes, regulations and other authorities, with references to the
pages of the brief where they are cited.
(d) Petitions for reconsideration of Commission decisions granting
or denying review in whole or in part will not be entertained. A
petition for reconsideration of a Commission decision after review may
be filed within ten (10) days, but is not necessary for exhaustion of
administrative remedies. However, if a petition for reconsideration is
filed, the Commission decision is not final until the petition is
decided. Any motion for reconsideration will be evaluated against the
standard in Sec. 2.323(e) of this section.
(e) Neither the filing nor the granting of a petition under this
section stays the effect of the decision or action of the presiding
officer, unless the Commission orders otherwise.
(f) Interlocutory review. (1) A question certified to the
Commission under Sec. 2.319(l) or a ruling referred or issue certified
under Sec. 2.323(f) will be reviewed if it either--
(i) Threatens the party adversely affected by it with immediate and
serious irreparable impact which, as a practical matter, could not be
alleviated through a petition for review of the presiding officer's
final decision; or
(ii) Affects the basic structure of the proceeding in a pervasive
or unusual manner
(2) The Commission may, in its discretion, grant interlocutory
review at the request of a party if the party demonstrates that
interlocutory Commission review is warranted under criteria specified
in paragraph (f)(1) of this section, despite the absence of a referral
or certification by the presiding officer. A petition and answer to it
must be filed within the times and in the form prescribed in paragraph
(b) of this section and must be treated in accordance with the general
provisions of this section.

Sec. 2.341 Stays of decisions.

(a) Within ten (10) days after service of a decision or action of a
presiding officer, any party to the proceeding may file an application
for a stay of the effectiveness of the decision or action pending
filing of and a decision on a petition for review. This application may
be filed with the Commission or the presiding officer, but not both at
the same time.
(b) An application for a stay may be no longer than ten (10) pages,
exclusive of affidavits, and must contain the following:
(1) A concise summary of the decision or action which is requested
to be stayed;
(2) A concise statement of the grounds for stay, with reference to
the factors specified in paragraph (e) of this section; and

[[Page 19648]]

(3) To the extent that an application for a stay relies on facts
subject to dispute, appropriate references to the record or affidavits
by knowledgeable persons.
(c) Service of an application for a stay on the other parties must
be by the same method, e.g., electronic or facsimile transmission,
mail, as the method for filing the application with the Commission or
the presiding officer.
(d) Within ten (10) days after service of an application for a stay
under this section, any party may file an answer supporting or opposing
the granting of a stay. This answer may not be longer than ten (10)
pages, exclusive of affidavits, and should concisely address the
matters in paragraph (b) of this section to the extent appropriate.
Further replies to answers will not be entertained. Filing of and
service of an answer on the other parties must be by the same method,
e.g., electronic or facsimile transmission, mail, as the method for
filing the application for the stay.
(e) In determining whether to grant or deny an application for a
stay, the Commission or presiding officer will consider:
(1) Whether the moving party has made a strong showing that it is
likely to prevail on the merits;
(2) Whether the party will be irreparably injured unless a stay is
granted;
(3) Whether the granting of a stay would harm other parties; and
(4) Where the public interest lies.
(f) In extraordinary cases, where prompt application is made under
this section, the Commission or presiding officer may grant a temporary
stay to preserve the status quo without waiting for filing of any
answer. The application may be made orally provided the application is
promptly confirmed by electronic or facsimile transmission message. Any
party applying under this paragraph shall make all reasonable efforts
to inform the other parties of the application, orally if made orally.

Sec. 2.342 Oral arguments.

In its discretion, the Commission may allow oral argument upon the
request of a party made in a petition for review or brief on review, or
upon its own initiative.

Sec. 2.343 Final decision.

(a) The Commission will ordinarily consider the whole record on
review, but may limit the issues to be reviewed to those identified in
an order taking review.
(b) The Commission may adopt, modify, or set aside the findings,
conclusions and order in the initial decision, and will state the basis
of its action. The final decision will be in writing and will include:
(1) A statement of findings and conclusions, with the basis for
them on all material issues of fact, law or discretion presented;
(2) All facts officially noticed;
(3) The ruling on each material issue; and
(4) The appropriate ruling, order, or denial of relief, with the
effective date.

Sec. 2.344 Petition for reconsideration.

(a)(1) Any petition for reconsideration of a final decision must be
filed by a party within ten (10) days after the date of the decision.
(2) Petitions for reconsideration of Commission decisions are
subject to the requirements in Sec. 2.340(d).
(b) A petition for reconsideration must demonstrate a compelling
circumstance, such as the existence of a clear and material error in a
decision, which could not have been reasonably anticipated, which
renders the decision invalid. The petition must state the relief
sought. Within ten (10) days after a petition for reconsideration has
been served, any other party may file an answer in opposition to or in
support of the petition.
(c) Neither the filing nor the granting of the petition stays the
decision unless the Commission orders otherwise.

Sec. 2.345 Authority of the Secretary.

When briefs, motions or other papers are submitted to the
Commission itself, as opposed to the officers who have been delegated
authority to act for the Commission, the Secretary or the Assistant
Secretary is authorized to:
(a) Prescribe procedures for the filing of briefs, motions, or
other pleadings, when the schedules differ from those prescribed by the
rules of this Part or when the rules of this Part do not prescribe a
schedule;
(b) Rule on motions for extensions of time;
(c) Reject motions, briefs, pleadings, and other documents filed
with the Commission later then the time prescribed by the Secretary or
the Assistant Secretary or established by an order, rule or regulation
of the Commission unless good cause is shown for the late filing;
(d) Prescribe all procedural arrangements relating to any oral
argument to be held before the Commission;
(e) Extend the time for the Commission to rule on a petition for
review under Secs. 2.311 and 2.340;
(f) Extend the time for the Commission to grant review on its own
motion under Sec. 2.340;
(g) Extend time for Commission review on its own motion of a
Director's denial under 10 CFR 2.206(c);
(h) Direct pleadings improperly filed before the Commission to the
appropriate presiding officer for action;
(i) Deny a request for hearings, where the request fails to comply
with the Commission's pleading requirements set forth in this part, and
fails to set forth an arguable basis for further proceedings;
(j) Refer to the Atomic Safety and Licensing Board Panel or an
Administrative Judge, as appropriate requests for hearing not falling
under Sec. 2.104, where the requestor is entitled to further
proceedings; and
(k) Take action on minor procedural matters.

Sec. 2.346 Ex parte communications.

In any proceeding under this subpart--
(a) Interested persons outside the agency may not make or knowingly
cause to be made to any Commission adjudicatory employee, any ex parte
communication relevant to the merits of the proceeding.
(b) Commission adjudicatory employees may not request or entertain
from any interested person outside the agency or make or knowingly
cause to be made to any interested person outside the agency, any ex
parte communication relevant to the merits of the proceeding.
(c) Any Commission adjudicatory employee who receives, makes, or
knowingly causes to be made a communication prohibited by this section
shall ensure that it, and any responses to the communication, are
promptly served on the parties and placed in the public record of the
proceeding. In the case of oral communications, a written summary must
be served and placed in the public record of the proceeding.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the
Commission or other adjudicatory employee presiding in a proceeding
may, to the extent consistent with the interests of justice and the
policy of the underlying statutes, require the party to show cause why
its claim or interest in the proceeding should not be dismissed,
denied, disregarded, or otherwise adversely affected on account of the
violation.
(e)(1) The prohibitions of this section apply--

[[Page 19649]]

(i) When a notice of hearing or other comparable order is issued in
accordance with Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e),
or 2.312; or
(ii) Whenever the interested person or Commission adjudicatory
employee responsible for the communication has knowledge that a notice
of hearing or other comparable order will be issued in accordance with
Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.
(2) The prohibitions of this section cease to apply to ex parte
communications relevant to the merits of a full or partial initial
decision when, in accordance with Sec. 2.340, the time has expired for
Commission review of the decision.
(f) The prohibitions in this section do not apply to--
(1) Requests for and the provision of status reports;
(2) Communications specifically permitted by statute or regulation;
(3) Communications made to or by Commission adjudicatory employees
in the Office of the General Counsel regarding matters pending before a
court or another agency; and
(4) Communications regarding generic issues involving public health
and safety or other statutory responsibilities of the agency (e.g.,
rulemakings, congressional hearings on legislation, budgetary planning)
not associated with the resolution of any proceeding under this subpart
pending before the NRC.

Sec. 2.347 Separation of functions.

(a) In any proceeding under this subpart, any NRC officer or
employee engaged in the performance of any investigative or litigating
function in that proceeding or in a factually related proceeding may
not participate in or advise a Commission adjudicatory employee about
the initial or final decision on any disputed issue in that proceeding,
except--
(1) As witness or counsel in the proceeding;
(2) Through a written communication served on all parties and made
on the record of the proceeding; or
(3) Through an oral communication made both with reasonable prior
notice to all parties and with reasonable opportunity for all parties
to respond.
(b) The prohibition in paragraph (a) of this section does not apply
to--
(1) Communications to or from any Commission adjudicatory employee
regarding--
(i) The status of a proceeding;
(ii) Matters for which the communications are specifically
permitted by statute or regulation;
(iii) NRC participation in matters pending before a court or
another agency; or
(iv) Generic issues involving public health and safety or other
statutory responsibilities of the NRC (e.g., rulemakings, congressional
hearings on legislation, budgetary planning) not associated with the
resolution of any proceeding under this subpart pending before the NRC.
(2) Communications to or from Commissioners, members of their
personal staffs, Commission adjudicatory employees in the Office of the
General Counsel, and the Secretary and employees of the Office of the
Secretary, regarding--
(i) Initiation or direction of an investigation or initiation of an
enforcement proceeding;
(ii) Supervision of NRC staff to ensure compliance with the general
policies and procedures of the agency;
(iii) NRC staff priorities and schedules or the allocation of
agency resources; or
(iv) General regulatory, scientific, or engineering principles that
are useful for an understanding of the issues in a proceeding and are
not contested in the proceeding.
(3) The communications permitted by paragraph (b)(2) (i) through
(iii) of this section may not be associated by the Commission
adjudicatory employee or the NRC officer or employee performing
investigative or litigating functions with the resolution of any
proceeding under this subpart pending before the NRC.
(c) Any Commission adjudicatory employee who receives a
communication prohibited under paragraph (a) of this section shall
ensure that it, and any responses to the communication, are placed in
the public record of the proceeding and served on the parties. In the
case of oral communications, a written summary must be served and
placed in the public record of the proceeding.
(d)(1) The prohibitions in this section apply--
(i) When a notice of hearing or other comparable order is issued in
accordance with Secs. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e),
or 2.312; or
(ii) Whenever an NRC officer or employee who is or has reasonable
cause to believe he or she will be engaged in the performance of an
investigative or litigating function or a Commission adjudicatory
employee has knowledge that a notice of hearing or other comparable
order will be issued in accordance with Secs. 2.104(a), 2.105(e)(2),
2.202(c), 2.204, 2.205(e), or 2.312.
(2) The prohibitions of this section cease to apply to the disputed
issues pertinent to a full or partial initial decision when the time
has expired for Commission review of the decision in accordance with
Sec. 2.340.
(e) Communications to, from, and between Commission adjudicatory
employees not prohibited by this section may not serve as a conduit for
a communication that otherwise would be prohibited by this section or
for an ex parte communication that otherwise would be prohibited by
Sec. 2.346.
(f) If an initial or final decision is stated to rest in whole or
in part on fact or opinion obtained as a result of a communication
authorized by this section, the substance of the communication must be
specified in the record of the proceeding and every party must be
afforded an opportunity to controvert the fact or opinion. If the
parties have not had an opportunity to controvert the fact or opinion
before the decision is filed, a party may controvert the fact or
opinion by filing a petition for review of an initial decision, or a
petition for reconsideration of a final decision that clearly and
concisely sets forth the information or argument relied on to show the
contrary. If appropriate, a party may be afforded the opportunity for
cross-examination or to present rebuttal evidence.

Sec. 2.390 Public inspections, exemptions, requests for withholding.

(a) Subject to the provisions of paragraphs (b), (d), and (e) of
this section, final NRC records and documents, including but not
limited to correspondence to and from the NRC regarding the issuance,
denial, amendment, transfer, renewal, modification, suspension,
revocation, or violation of a license, permit, or order, or regarding a
rulemaking proceeding subject to this part shall not, in the absence of
a compelling reason for nondisclosure after a balancing of the
interests of the person or agency urging nondisclosure and the public
interest in disclosure, be exempt from disclosure and will be made
available for inspection and copying at the NRC Web site, http://
www.nrc.gov, and/or at the NRC Public Document Room, except for matters
that are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy; and (ii) Are in fact properly classified under that
Executive order;
(2) Related solely to the internal personnel rules and practices of
the Commission;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552(b)), but only if that statute requires that the matters be
withheld from the public in such a manner as to leave no discretion on
the issue, or establishes particular criteria for

[[Page 19650]]

withholding or refers to particular types or matters to be withheld.
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the Commission;
(6) Personnel and medical files and similar files, the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority, or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b)(1) A person who proposes that a document or a part be withheld
in whole or part from public disclosure on the ground that it contains
trade secrets or privileged or confidential commercial or financial
information shall submit an application for withholding accompanied by
an affidavit that:
(i) Identifies the document or part sought to be withheld and the
position of the person making the affidavit; and
(ii) Contains a full statement of the reasons on the basis of which
it is claimed that the information should be withheld from public
disclosure. The statement must specifically address the considerations
listed in paragraph (b)(4) of this section. In the case of an affidavit
submitted by a company, the affidavit must be executed by an officer or
upper-level management official who has been specifically delegated the
function of reviewing the information sought to be withheld and
authorized to apply for its withholding on behalf of the company. The
affidavit must be executed by the owner of the information, even though
the information sought to be withheld is submitted to the Commission by
another person. The application and affidavit must be submitted at the
time of filing the information sought to be withheld. The information
sought to be withheld must be incorporated, as far as possible, into a
separate paper. The affiant may designate with appropriate markings
information submitted in the affidavit as a trade secret or
confidential or privileged commercial or financial information within
the meaning of Sec. 9.17(a)(4) of this chapter and such information
shall be subject to disclosure only in accordance with the provisions
of Sec. 9.19 of this chapter.
(2) A person who submits commercial or financial information
believed to be privileged or confidential or a trade secret shall be on
notice that it is the policy of the Commission to achieve an effective
balance between legitimate concerns for protection of competitive
positions and the right of the public to be fully apprised as to the
basis for and effects of licensing or rulemaking actions, and that it
is within the discretion of the Commission to withhold such information
from public disclosure.
(3) The Commission shall determine whether information sought to be
withheld from public disclosure under this paragraph:
(i) Is a trade secret or confidential or privileged commercial or
financial information; and
(ii) If so, should be withheld from public disclosure.
(4) In making the determination required by paragraph (b)(3)(i) of
this section, the Commission will consider:
(i) Whether the information has been held in confidence by its
owner;
(ii) Whether the information is of a type customarily held in
confidence by its owner and whether there is a rational basis therefor;
(iii) Whether the information was transmitted to and received by
the Commission in confidence;
(iv) Whether the information is available in public sources;
(v) Whether public disclosure of the information sought to be
withheld is likely to cause substantial harm to the competitive
position of the owner of the information, taking into account the value
of the information to the owner; the amount of effort or money, if any,
expended by the owner in developing the information; and the ease or
difficulty with which the information could be properly acquired or
duplicated by others.
(5) If the Commission determines, under paragraph (b)(4) of this
section, that the record or document contains trade secrets or
privileged or confidential commercial or financial information, the
Commission will then determine whether the right of the public to be
fully apprised as to the bases for and effects of the proposed action
outweighs the demonstrated concern for protection of a competitive
position, and whether the information should be withheld from public
disclosure under this paragraph. If the record or document for which
withholding is sought is deemed by the Commission to be irrelevant or
unnecessary to the performance of its functions, it will be returned to
the applicant.
(6) Withholding from public inspection does not affect the right,
if any, of persons properly and directly concerned to inspect the
document. Either before a decision of the Commission on the matter of
whether the information should be made publicly available or after a
decision has been made that the information should be withheld from
public disclosure, the Commission may require information claimed to be
a trade secret or privileged or confidential commercial or financial
information to be subject to inspection under a protective agreement by
contractor personnel or government officials other than NRC officials,
by the presiding officer in a proceeding, and under protective order by
the parties to a proceeding. In camera sessions of hearings may be held
when the information sought to be withheld is produced or offered in
evidence. If the Commission subsequently determines that the
information should be disclosed, the information and the transcript of
such in camera session will be made publicly available.
(c) If a request for withholding under paragraph (b) of this
section is denied, the Commission will notify an applicant for
withholding of the denial with a statement of reasons. The notice of
denial will specify a time, not less than thirty (30) days after the
date of the

[[Page 19651]]

notice, when the document will be available at the NRC Web site, http:/
/www.nrc.gov. If, within the time specified in the notice, the
applicant requests withdrawal of the document, the document will not be
available at the NRC Web site, http://www.nrc.gov, and will be returned
to the applicant: Provided, that information submitted in a rulemaking
proceeding which subsequently forms the basis for the final rule will
not be withheld from public disclosure by the Commission and will not
be returned to the applicant after denial of any application for
withholding submitted in connection with that information. If a request
for withholding under paragraph (b) of this section is granted, the
Commission will notify the applicant of its determination to withhold
the information from public disclosure.
(d) The following information is considered commercial or financial
information within the meaning of Sec. 9.17(a)(4) of this chapter and
is subject to disclosure only in accordance with the provisions of
Sec. 9.19 of this chapter.
(1) Correspondence and reports to or from the NRC which contain
information or records concerning a licensee's or applicant's physical
protection, classified matter protection, or material control and
accounting program for special nuclear material not otherwise
designated as Safeguards Information or classified as National Security
Information or Restricted Data.
(2) Information submitted in confidence to the Commission by a
foreign source.
(e) The presiding officer, if any, or the Commission may, with
reference to the NRC records and documents made available pursuant to
this section, issue orders consistent with the provisions of this
section and Sec. 2.705(c).
13. In Sec. 2.402, paragraph (b) is revised to read as follows:

Sec. 2.402 Separate hearings on separate issues; consolidation of
proceedings.

* * * * *
(b) If a separate hearing is held on a particular phase of the
proceeding, the Commission or presiding officers of each affected
proceeding may, under Sec. 2.317, consolidate for hearing on that phase
two or more proceedings to consider common issues relating to the
applications involved in the proceedings, if it finds that this action
will be conducive to the proper dispatch of its business and to the
ends of justice. In specifying the place of this consolidated hearing
due regard will be given to the convenience and necessity of the
parties, petitioners for leave to intervene, or the attorneys or
representatives of such persons, and the public interest.
14. Section 2.405 is revised to read as follows:

Sec. 2.405 Initial decisions in consolidated hearings.

At the conclusion of any hearing held under this subpart, the
presiding officer will render a partial initial decision that may be
appealed under Sec. 2.340. No construction permit or full power
operating license will be issued until an initial decision has been
issued on all phases of the hearing and all issues under the Act and
the National Environmental Policy Act of 1969 appropriate to the
proceeding have been resolved.
15. In Sec. 2.604, paragraphs (b) and (c) are revised to read as
follows:

Sec. 2.604 Notice of hearing on application for early review of site
suitability issues.

* * * * *
(b) After docketing of part two of the application, as provided in
Secs. 2.101(a-1) and 2.603, a supplementary notice of hearing will be
published under Sec. 2.104 with respect to the remaining unresolved
issues in the proceeding within the scope of Sec. 2.104. This
supplementary notice of hearing will provide that any person whose
interest may be affected by the proceeding and who desires to
participate as a party in the resolution of the remaining issues shall
file a petition for leave to intervene pursuant to Sec. 2.309 within
the time prescribed in the notice. This supplementary notice will also
provide appropriate opportunities for participation by a representative
of an interested State under Sec. 2.315(c) and for limited appearances
pursuant to Sec. 2.315(a).
(c) Any person who was permitted to intervene as a party under the
initial notice of hearing on site suitability issues and who was not
dismissed or did not withdraw as a party may continue to participate as
a party to the proceeding with respect to the remaining unresolved
issues, provided that within the time prescribed for filing of
petitions for leave to intervene in the supplementary notice of
hearing, he or she files a notice of his intent to continue as a party,
along with a supporting affidavit identifying the specific aspect or
aspects of the subject matter of the proceeding as to which he or she
wishes to continue to participate as a party and setting forth with
particularity the basis for his contentions with regard to each aspect
or aspects. A party who files a non-timely notice of intent to continue
as a party may be dismissed from the proceeding, absent a determination
that the party has made a substantial showing of good cause for failure
to file on time, and with particular reference to the factors specified
in Secs. 2.309(a)(1) through (4) and 2.309(d). The notice will be ruled
upon by the Commission or Atomic Safety and Licensing Board designated
to rule on petitions for leave to intervene.
* * * * *
16. In Sec. 2.606, paragraph (a) is revised to read as follows:

Sec. 2.606 Partial decisions on site suitability issues.

(a) The provisions of Secs. 2.331, 2.338, 2.339(b), 2.342, 2.712,
and 2.713 shall apply to any partial initial decision rendered in
accordance with this subpart. Section 2.339(c) shall not apply to any
partial initial decision rendered in accordance with this subpart. A
limited work authorization may not be issued under Sec. 50.10(e) of
part 50 of this chapter and no construction permit may be issued
without completion of the full review required by section 102(2) of the
National Environmental Policy Act of 1969, as amended, and subpart A of
part 51 of this chapter. The authority of the Commission to review such
a partial initial decision sua sponte, or to raise sua sponte an issue
that has not been raised by the parties, will be exercised within the
same time period as in the case of a full decision relating to the
issuance of a construction permit.
* * * * *
17. Subpart G is revised to read as follows:
Subpart G--Rules for Formal Adjudications
Sec.
2.700 Scope of Subpart G.
2.701 Exceptions.
2.702 Subpoenas.
2.703 Examinationby experts.
2.704 Discovery--required disclosures.
2.705 Discovery--additional methods.
2.706 Depositions upon oral examination and written
interrogatories; interrogatories to parties.
2.707 Production of documents and things; entry upon land for
inspection and other purposes.
2.708 Admissions.
2.709 Discovery against NRC staff.
2.710 Motions for summary disposition.
2.711 Evidence.
2.712 Proposed findings and conclusions.
2.713 Initial decision and its effect.

Subpart G--Rules for Formal Adjudications

Sec. 2.700 Scope of Subpart G.

The provisions of this subpart apply to and supplement the
provisions set forth in subpart C of this part with respect to
enforcement proceedings

[[Page 19652]]

initiated under subpart B of this part unless otherwise agreed to by
the parties, proceedings conducted with respect to the initial
licensing of a uranium enrichment facility, reactor licensing
proceedings involving a large number of very complex issues,
proceedings for applications for authorization to construct a high-
level radioactive waste at a geologic repository operations area
noticed under Secs. 2.101(f)(8) or 2.105(a)(5), proceedings for
applications for authorization to receive and possess high-level
radioactive waste at a geologic repository operations area, and any
other proceeding as ordered by the Commission. If there is any conflict
between the provisions of this subpart and those set forth in subpart C
of this part, the provisions of this subpart control.

Sec. 2.701 Exceptions.

Consistent with 5 U.S.C. 554(a)(4) of the Administrative Procedure
Act, the Commission may provide alternative procedures in adjudications
to the extent that there is involved the conduct of military or foreign
affairs functions.

Sec. 2.702 Subpoenas.

(a) On application by any party, the designated presiding officer
or, if he or she is not available, the Chief Administrative Judge, or
other designated officer will issue subpoenas requiring the attendance
and testimony of witnesses or the production of evidence. The officer
to whom application is made may require a showing of general relevance
of the testimony or evidence sought, and may withhold the subpoena if
such a showing is not made. However, the officer may not determine the
admissibility of evidence.
(b) Every subpoena will bear the name of the Commission, the name
and office of the issuing officer and the title of the hearing, and
will command the person to whom it is directed to attend and give
testimony or produce specified documents or other things at a
designated time and place. The subpoena will also advise of the
quashing procedure provided in paragraph (f) of this section.
(c) Unless the service of a subpoena is acknowledged on its face by
the witness or is served by an officer or employee of the Commission,
it must be served by a person who is not a party to the hearing and is
not less than eighteen (18) years of age. Service of a subpoena must be
made by delivery of a copy of the subpoena to the person named in it
and tendering that person the fees for one day's attendance and the
mileage allowed by law. When the subpoena is issued on behalf of the
Commission, fees and mileage need not be tendered and the subpoena may
be served by registered mail.
(d) Witnesses summoned by subpoena must be paid the fees and
mileage paid to witnesses in the district courts of the United States
by the party at whose instance they appear.
(e) The person serving the subpoena shall make proof of service by
filing the subpoena and affidavit or acknowledgment of service with the
officer before whom the witness is required to testify or produce
evidence or with the Secretary. Failure to make proof of service does
not affect the validity of the service.
(f) On motion made promptly, and in any event at or before the time
specified in the subpoena for compliance by the person to whom the
subpoena is directed, and on notice to the party at whose instance the
subpoena was issued, the presiding officer or, if he is unavailable,
the Commission may:
(1) Quash or modify the subpoena if it is unreasonable or requires
evidence not relevant to any matter in issue, or
(2) Condition denial of the motion on just and reasonable terms.
(g) On application and for good cause shown, the Commission will
seek judicial enforcement of a subpoena issued to a party and which has
not been quashed.
(h) The provisions of paragraphs (a) through (g) of this section
are not applicable to the attendance and testimony of the Commissioners
or NRC personnel, or to the production of records or documents in their
custody.

Sec. 2.703 Examination by experts.

(a) A party may request the presiding officer to permit a qualified
individual who has scientific or technical training or experience to
participate on behalf of that party in the examination and cross-
examination of expert witnesses. The presiding officer may permit the
individual to participate on behalf of the party in the examination and
cross-examination of expert witnesses, upon finding:
(1) That cross-examination by that individual would serve the
purpose of furthering the conduct of the proceeding;
(2) That the individual is qualified by scientific or technical
training or experience to contribute to the development of an adequate
decisional record in the proceeding by the conduct of such examination
or cross-examination;
(3) That the individual has read any written testimony on which he
intends to examine or cross-examine and any documents to be used or
referred to in the course of the examination or cross-examination; and
(4) That the individual has prepared himself to conduct a
meaningful and expeditious exaination or cross-examination.
(b) Examination or cross-examination conducted under this section
must be limited to areas within the expertise of the individual
conducting the examination or cross-examination. The party on behalf of
whom this examination or cross-examination is conducted and his or her
attorney are responsible for the conduct of examination or cross-
examination by such individuals.

Sec. 2.704 Discovery--required disclosures.

(a) Initial disclosures. Except to the extent otherwise stipulated
or directed by order of the presiding officer or the Commission, a
party other than the NRC staff shall, without awaiting a discovery
request, provide to other parties:
(1) The name and, if known, the address and telephone number of
each individual likely to have discoverable information relevant to
disputed issues alleged with particularity in the pleadings,
identifying the subjects of the information; and
(2) A copy of, or a description by category and location of, all
documents, data compilations, and tangible things in the possession,
custody, or control of the party that are relevant to disputed issues
alleged with particularity in the pleadings;
(3) Unless otherwise stipulated or directed by the presiding
officer, these disclosures must be made within forty-five (45) days
after the issuance of a prehearing conference order following the
initial prehearing conference specified in Sec. 2.329. A party shall
make its initial disclosures based on the information then reasonably
available to it. A party is not excused from making its disclosures
because it has not fully completed its investigation of the case,
because it challenges the sufficiency of another party's disclosures,
or because another party has not made its disclosures.
(b) Disclosure of expert testimony.
(1) In addition to the disclosures required by paragraph (a) of
this section, a party other than the NRC staff shall disclose to other
parties the identity of any person who may be used at trial to present
evidence under Sec. 2.710.
(2) Except in proceedings with pre-filed written testimony, or as
otherwise stipulated or directed by the presiding officer, this
disclosure must be accompanied by a written report

[[Page 19653]]

prepared and signed by the witness, containing: a complete statement of
all opinions to be expressed and the basis and reasons therefor; the
data or other information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or support for the
opinions; the qualifications of the witness, including a list of all
publications authored by the witness within the preceding ten years;
and a listing of any other cases in which the witness has testified as
an expert at trial or by deposition within the preceding four years.
(3) These disclosures must be made at the times and in the sequence
directed by the presiding officer. In the absence of other directions
from the presiding officer, or stipulation by the parties, the
disclosures must be made at least ninety (90) days before the hearing
commencement date or the date the matter is to be presented for
hearing. If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another party under
paragraph (b)(2) of this section, within the disclosure made by the
other party. The parties shall supplement these disclosures when
required under paragraph (e) of this section.
(c) Pretrial disclosures.
(1) In addition to the disclosures required in the preceding
paragraphs, a party other than the NRC staff shall provide to other
parties the following information regarding the evidence that it may
present at trial other than solely for impeachment purposes:
(i) The name and, if not previously provided, the address and
telephone number of each witness, separately identifying those whom the
party expects to present and those whom the party may call if the need
arises;
(ii) The designation of those witnesses whose testimony is expected
to be presented by means of a deposition and, when available, a
transcript of the pertinent portions of the deposition testimony; and
(iii) An appropriate identification of each document or other
exhibit, including summaries of other evidence, separately identifying
those which the party expects to offer and those which the party may
offer if the need arises.
(2) Unless otherwise directed by the presiding officer or the
Commission, these disclosures must be made at least thirty (30) days
before commencement of the hearing at which the issue is to be
presented.
(3) A party may object to the admissibility of documents identified
under paragraph (c) of this section. A list of those objections must be
served and filed within fourteen (14) days after service of the
disclosures required by paragraphs (c)(1) and (2) of this section,
unless a different time is specified by the presiding officer or the
Commission. Objections not so disclosed, other than objections as to a
document's admissibility under Sec. 2.710(c), are waived unless excused
by the presiding officer or Commission for good cause shown.
(d) Form of disclosures; filing. Unless otherwise directed by order
of the presiding officer or the Commission, all disclosures under
paragraphs (a) through (c) of this section must be made in writing,
signed, served, and promptly filed with the presiding officer or the
Commission.
(e) Supplementation of responses. A party who has made a disclosure
under this section is under a duty to supplement or correct the
disclosure to include information thereafter acquired if ordered by the
presiding officer or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals
its disclosures under paragraph (a) of this section within a reasonable
time after a party learns that in some material respect the information
disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.
(2) With respect to testimony of an expert from whom a report is
required under paragraph (b) of this section, the duty extends both to
information contained in the report and to information provided through
a deposition of the expert, and any additions or other changes to this
information must be disclosed by the time the party's disclosures under
Sec. 2.704(c) are due.

Sec. 2.705 Discovery--additional methods.

(a) Discovery methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
interrogatories(Sec. 2.706); interrogatories to parties (Sec. 2.706);
production of documents or things or permission to enter upon land or
other property, for inspection and other purposes (Sec. 2.707); and
requests for admission (Sec. 2.708).
(b) Scope of discovery. Unless otherwise limited by order of the
presiding officer in accordance with this section, the scope of
discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter involved in the
proceeding, whether it relates to the claim or defense of any other
party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any
discoverable matter. When any book, document, or other tangible thing
sought is reasonably available from another source, such as at the NRC
Web site, http://www.nrc.gov, and/or the NRC Public Document Room,
sufficient response to an interrogatory on materials would be the
location, the title and a page reference to the relevant book,
document, or tangible thing. In a proceeding on an application for a
construction permit or an operating license for a production or
utilization facility, discovery begins only after the prehearing
conference and relates only to those matters in controversy which have
been identified by the Commission or the presiding officer in the
prehearing order entered at the conclusion of that prehearing
conference. In such a proceeding, discovery may not take place after
the beginning of the prehearing conference held under Sec. 2.329 except
upon leave of the presiding officer upon good cause shown. It is not a
ground for objection that the information sought will be inadmissible
at the hearing if the information sought appears reasonably calculated
to lead to the discovery of admissible evidence.
(2) Limitations. Upon his or her own initiative after reasonable
notice or in a motion under Sec. 2.704(c), the presiding officer may
alter the limits in these rules on the number of depositions and
interrogatories and may also limit the length of depositions under
Sec. 2.705 and the number of requests under Secs. 2.706 and 2.707. The
presiding officer shall limit the frequency or extent of use of the
discovery methods otherwise permitted under these rules if he or she
determines that:
(i) The discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(ii) The party seeking discovery has had ample opportunity by
discovery in the proceeding to obtain the information sought; or
(iii) The burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the proceeding, the
parties' resources, the importance of the issue in the proceeding, and
the importance of the proposed discovery in resolving the issues.
(3) Trial preparation materials. A party may obtain discovery of

[[Page 19654]]

documents and tangible things otherwise discoverable under paragraph
(b)(1) of this section and prepared in anticipation of or for the
hearing by or for another party's representative (including his
attorney, consultant, surety, indemnitor, insurer, or agent) only upon
a showing that the party seeking discovery has substantial need of the
materials in the preparation of this case and that he is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing has been made, the presiding officer shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney for a party concerning the proceeding.
(4) Claims of Privilege or Protection of Trial Preparation
Materials. When a party withholds information otherwise discoverable
under these rules by claiming that it is privileged or subject to
protection as trial preparation material, the party shall make the
claim expressly and shall describe the nature of the documents,
communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will
enable other parties to assess the applicability of the privilege or
protection. Identification of these privileged materials must be made
within the time provided for disclosure of the materials, unless
otherwise extended by order of the presiding officer or the Commission.
(5) Nature of interrogatories. Interrogatories may seek to elicit
factual information reasonably related to a party's position in the
proceeding, including data used, assumptions made, and analyses
performed by the party. Interrogatories may not be addressed to, or be
construed to require:
(i) Reasons for not using alternative data, assumptions, and
analyses where the alternative data, assumptions, and analyses were not
relied on in developing the party's position; or
(ii) Performance of additional research or analytical work beyond
that which is needed to support the party's position on any particular
matter.
(c) Protective order.
(1) Upon motion by a party or the person from whom discovery is
sought, accompanied by a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without action by the presiding
officer, and for good cause shown, the presiding officer may make any
order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(iii) That the discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(iv) That certain matters not be inquired into, or that the scope
of discovery be limited to certain matters;
(v) That discovery be conducted with no one present except persons
designated by the presiding officer;
(vi) That, subject to the provisions of Secs. 2.709 and 2.390, a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
or
(vii) That studies and evaluations not be prepared.
(2) If the motion for a protective order is denied in whole or in
part, the presiding officer may, on such terms and conditions as are
just, order that any party or person provide or permit discovery.
(d) Sequence and timing of discovery. Except when authorized under
these rules or by order of the presiding officer, or agreement of the
parties, a party may not seek discovery from any source before the
parties have met and conferred as required by paragraph (f) of this
section, nor may a party seek discovery after the time limit
established in the proceeding for the conclusion of discovery. Unless
the presiding officer upon motion, for the convenience of parties and
witnesses and in the interests of justice, orders otherwise, methods of
discovery may be used in any sequence and the fact that a party is
conducting discovery, whether by deposition or otherwise, does not
operate to delay any other party's discovery.
(e) Supplementation of responses. A party who responded to a
request for discovery with a response is under a duty to supplement or
correct the response to include information thereafter acquired if
ordered by the presiding officer or, with respect to a response to an
interrogatory, request for production, or request for admission, within
a reasonable time after a party learns that the response is in some
material respect incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.
(f) Meeting of parties; planning for discovery. Except when
otherwise ordered, the parties shall, as soon as practicable and in any
event no more than thirty (30) days after the issuance of a prehearing
conference order following the initial prehearing conference specified
in Sec. 2.329, meet to discuss the nature and basis of their claims and
defenses and the possibilities for a prompt settlement or resolution of
the proceeding or any portion thereof, to make or arrange for the
disclosures required by Sec. 2.704, and to develop a proposed discovery
plan.
(1) The plan must indicate the parties' views and proposals
concerning:
(i) What changes should be made in the timing, form, or requirement
for disclosures under Sec. 2.704, including a statement as to when
disclosures under Sec. 2.704(a)(1) were made or will be made;
(ii) The subjects on which discovery may be needed, when discovery
should be completed, and whether discovery should be conducted in
phases or be limited to or focused upon particular issues;
(iii) What changes should be made in the limitations on discovery
imposed under these rules, and what other limitations should be
imposed; and
(iv) any other orders that should be entered by the presiding
officer under paragraph (c) of this section.
(2) The attorneys of record and all unrepresented parties that have
appeared in the proceeding are jointly responsible for arranging and
being present or represented at the meeting, for attempting in good
faith to agree on the proposed discovery plan, and for submitting to
the presiding officer within ten (10) days after the meeting a written
report outlining the plan.
(g) Signing of disclosures, discovery requests, responses, and
objections.
(1) Every disclosure made in accordance with Sec. 2.704 must be
signed by at least one attorney of record in the attorney's individual
name, whose address must be stated. An unrepresented party shall sign
the disclosure and state the party's address. The signature of the
attorney or party constitutes a certification that to the best of the
signer's knowledge, information, and belief, formed after a reasonable
inquiry, the disclosure is complete and correct as of the time it is
made.
(2) Every discovery request, response, or objection made by a party
represented by an attorney must be signed by at least one attorney of
record in the attorney's individual name, whose address must be stated.
An unrepresented party shall sign the request, response, or objection
and state the party's address. The signature of the

[[Page 19655]]

attorney or party constitutes a certification that to the best of the
signer's knowledge, information, and belief, formed after a reasonable
inquiry, the request, response, or objection is:
(i) Consistent with these rules and warranted by existing law or a
good faith argument for the extension, modification, or reversal of
existing law;
(ii) Not interposed for any improper purpose, such as to harass or
to cause unnecessary delay or needless increase in the cost of
litigation; and
(iii) Not unreasonable or unduly burdensome or expensive, given the
needs of the case, the discovery already had in the case, the amount in
controversy, and the importance of the issues at stake in the
litigation.
(3) If a request, response, or objection is not signed, it shall be
stricken unless it is signed promptly after the omission is called to
the attention of the party making the request, response, or objection,
and a party shall not be obligated to take any action with respect to
it until it is signed.
(4) If a certification is made in violation of the rule without
substantial justification, the presiding officer, upon motion or upon
its own initiative, shall impose upon the person who made the
certification, the party on whose behalf the disclosure, request,
response, or objection is made, or both, an appropriate sanction, which
may, in appropriate circumstances, include termination of that person's
right to participate in the proceeding.
(h) Motion to compel discovery.
(1) If a deponent or party upon whom a request for production of
documents or answers to interrogatories is served fails to respond or
objects to the request, or any part thereof, or fails to permit
inspection as requested, the deposing party or the party submitting the
request may move the presiding officer, within ten (10) days after the
date of the response or after failure of a party to respond to the
request for an order compelling a response or inspection in accordance
with the request. The motion must set forth the nature of the questions
or the request, the response or objection of the party upon whom the
request was served, and arguments in support of the motion. The motion
must be accompanied by a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in
an effort to resolve the dispute without action by the presiding
officer. Failure to answer or respond may not be excused on the ground
that the discovery sought is objectionable unless the person or party
failing to answer or respond has applied for a protective order
pursuant to paragraph (c) of this section. For purposes of this
paragraph, an evasive or incomplete answer or response shall be treated
as a failure to answer or respond.
(2) In ruling on a motion made under this section, the presiding
officer may issue a protective order under paragraph (c) of this
section.
(3) This section does not preclude an independent request for
issuance of a subpoena directed to a person not a party for production
of documents and things. This section does not apply to requests for
the testimony or interrogatories of the NRC staff under Sec. 2.709(a),
the production of NRC documents under Secs. 2.709(b) or Sec. 2.390,
except for paragraphs (c) and (e) of this section.

Sec. 2.706 Depositions upon oral examination and upon written
interrogatories; interrogatories to parties.

(a) Depositions upon oral examination and upon written
interrogatories.
(1) Any party desiring to take the testimony of any party or other
person by deposition on oral examination or written interrogatories
shall, without leave of the Commission or the presiding officer, give
reasonable notice in writing to every other party, to the person to be
examined and to the presiding officer of the proposed time and place of
taking the deposition; the name and address of each person to be
examined, if known, or if the name is not known, a general description
sufficient to identify him or the class or group to which he belongs;
the matters upon which each person will be examined and the name or
descriptive title and address of the officer before whom the deposition
is to be taken.
(2) [Reserved].
(3) Within the United States, a deposition may be taken before any
officer authorized to administer oaths by the laws of the United States
or of the place where the examination is held. Outside of the United
States, a deposition may be taken before a secretary of an embassy or
legation, a consul general, vice consul or consular agent of the United
States, or a person authorized to administer oaths designated by the
Commission.
(4) Before any questioning, the deponent shall either be sworn or
affirm the truthfulness of his or her answers. Examination and cross-
examination must proceed as at a hearing. Each question propounded must
be recorded and the answer taken down in the words of the witness.
Objections on questions of evidence must be noted in short form without
the arguments. The officer may not decide on the competency,
materiality, or relevancy of evidence but must record the evidence
subject to objection. Objections on questions of evidence not made
before the officer will not be considered waived unless the ground of
the objection is one which might have been obviated or removed if
presented at that time.
(5) When the testimony is fully transcribed, the deposition must be
submitted to the deponent for examination and signature unless he or
she is ill, cannot be found, or refuses to sign. The officer shall
certify the deposition or, if the deposition is not signed by the
deponent, shall certify the reasons for the failure to sign, and shall
promptly forward the deposition by registered mail to the Commission.
(6) Where the deposition is to be taken on written interrogatories,
the party taking the deposition shall serve a copy of the
interrogatories, showing each interrogatory separately and
consecutively numbered, on every other party with a notice stating the
name and address of the person who is to answer them, and the name,
description, title, and address of the officer before whom they are to
be taken. Within ten (10) days after service, any other party may serve
cross-interrogatories. The interrogatories, cross-interrogatories, and
answers must be recorded and signed, and the deposition certified,
returned, and filed as in the case of a deposition on oral examination.
(7) A deposition will not become a part of the record in the
hearing unless received in evidence. If only part of a deposition is
offered in evidence by a party, any other party may introduce any other
parts. A party does not make a person his or her own witness for any
purpose by taking his deposition.
(8) A deponent whose deposition is taken and the officer taking a
deposition are entitled to the same fees as are paid for like services
in the district courts of the United States. The fees must be paid by
the party at whose instance the deposition is taken.
(9) The witness may be accompanied, represented, and advised by
legal counsel.
(10) The provisions of paragraphs (a)(1) through (9) of this
section are not applicable to NRC personnel. Testimony of NRC personnel
by oral examination and written interrogatories addressed to NRC
personnel are subject to the provisions of Sec. 2.709.
(b) Interrogatories to parties.
(1) Any party may serve upon any other party (other than the NRC
staff) written interrogatories to be answered in writing by the party
served, or if the party served is a public or private

[[Page 19656]]

corporation or a partnership or association, by any officer or agent,
who shall furnish such information as is available to the party. A copy
of the interrogatories, answers, and all related pleadings must be
filed with the Secretary of the Commission, and must be served on the
presiding officer and all parties to the proceeding.\1\
---------------------------------------------------------------------------

\1\ The sanction specified herein is not stated in the Rule 26
of the Federal Rules (which speaks of financial snactions), but is
inserted to emphasize the seriousness with which breaches of the
Commission's disclosure and discovery rules should be viewed.
---------------------------------------------------------------------------

(2) Each interrogatory must be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event the reasons for objection must be stated in lieu of an answer.
The answers must be signed by the person making them, and the
objections by the attorney making them. The party upon whom the
interrogatories were served shall serve a copy of the answers and
objections upon all parties to the proceeding within 14 days after
service of the interrogatories, or within such shorter or longer period
as the presiding officer may allow. Answers may be used in the same
manner as depositions (see Sec. 2.705(a)(7)).

Sec. 2.707 Production of documents and things; entry upon land for
inspections and other purposes.

(a) Request for discovery. Any party may serve on any other party a
request to:
(1) Produce and permit the party making the request, or a person
acting on his or her behalf, to inspect and copy any designated
documents, or to inspect and copy, test, or sample any tangible things
which are within the scope of Sec. 2.704 and which are in the
possession, custody, or control of the party upon whom the request is
served; or
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, surveying, photographing,
testing, or sampling the property or any designated object or operation
on the property, within the scope of Sec. 2.704.
(b) Service. The request may be served on any party without leave
of the Commission or the presiding officer. Except as otherwise
provided in Sec. 2.704, the request may be served after the proceeding
is set for hearing.
(c) Contents. The request must identify the items to be inspected
either by individual item or by category, and describe each item and
category with reasonable particularity. The request must specify a
reasonable time, place, and manner of making the inspection and
performing the related acts.
(d) Response. The party upon whom the request is served shall serve
on the party submitting the request a written response within thirty
(30) days after the service of the request. The response must state,
with respect to each item or category, that inspection and related
activities will be permitted as requested, unless the request is
objected to, in which case the reasons for objection must be stated. If
objection is made to part of an item or category, the part must be
specified.
(e) NRC records and documents. The provisions of paragraphs (a)
through (d) of this section do not apply to the production for
inspection and copying or photographing of NRC records or documents.
Production of NRC records or documents is subject to the provisions of
Secs. 2.709 and 2.390.

Sec. 2.708 Admissions.

(a) Apart from any admissions made during or as a result of a
prehearing conference, at any time after his or her answer has been
filed, a party may file a written request for the admission of the
genuineness and authenticity of any relevant document described in or
attached to the request, or for the admission of the truth of any
specified relevant matter of fact. A copy of the document for which an
admission of genuineness and authenticity is requested must be
delivered with the request unless a copy has already been furnished.
(b)(1) Each requested admission is considered made unless, within a
time designated by the presiding officer or the Commission, and not
less than ten (10) days after service of the request or such further
time as may be allowed on motion, the party to whom the request is
directed serves on the requesting party either:
(i) A sworn statement denying specifically the relevant matters of
which an admission is requested or setting forth in detail the reasons
why he can neither truthfully admit nor deny them, or
(ii) Written objections on the ground that some or all of the
matters involved are privileged or irrelevant or that the request is
otherwise improper in whole or in part.
(2) Answers on matters to which such objections are made may be
deferred until the objections are determined. If written objections are
made to only a part of a request, the remainder of the request must be
answered within the time designated.
(c) Admissions obtained under the procedure in this section may be
used in evidence to the same extent and subject to the same objections
as other admissions.

Sec. 2.709 Discovery against NRC staff.

(a)(1) In a proceeding in which the NRC staff is a party, the NRC
staff will make available one or more witnesses, designated by the
Executive Director for Operations, for oral examination at the hearing
or on deposition regarding any matter, not privileged, that is relevant
to the issues in the proceeding. The attendance and testimony of the
Commissioners and named NRC personnel at a hearing or on deposition may
not be required by the presiding officer, by subpoena or otherwise.
However, the presiding officer may, upon a showing of exceptional
circumstances, such as a case in which a particular named NRC employee
has direct personal knowledge of a material fact not known to the
witnesses made available by the Executive Director for Operations,
require the attendance and testimony of named NRC personnel.
(2) A party may file with the presiding officer written
interrogatories to be answered by NRC personnel with knowledge of the
facts, as designated by the Executive Director for Operations. Upon a
finding by the presiding officer that answers to the interrogatories
are necessary to a proper decision in the proceeding and that answers
to the interrogatories are not reasonably obtainable from any other
source, the presiding officer may require that the NRC staff answer the
interrogatories.
(3) A deposition of a particular named NRC employee or answer to
interrogatories by NRC personnel under paragraphs (a)(1) and (2) of
this section may not be required before the matters in controversy in
the proceeding have been identified by order of the Commission or the
presiding officer, or after the beginning of the prehearing conference
held in accordance with Sec. 2.329, except upon leave of the presiding
officer for good cause shown.
(4) The provisions of Sec. 2.705 (c) and (e) apply to
interrogatories served under this paragraph.
(5) Records or documents in the custody of the Commissioners and
NRC personnel are available for inspection and copying or photographing
under paragraph (b) of this section and Sec. 2.390.
(b) A request for the production of an NRC record or document not
available under Sec. 2.390 by a party to an initial licensing
proceeding may be served on the Executive Director for Operations,
without leave of the Commission or the presiding officer. The request
must

[[Page 19657]]

identify the records or documents requested, either by individual item
or by category, describe each item or category with reasonable
particularity, and state why that record or document is relevant to the
proceeding.
(c) If the Executive Director for Operations objects to producing a
requested record or document on the ground that it is not relevant or
it is exempted from disclosure under Sec. 2.390 and the disclosure is
not necessary to a proper decision in the proceeding or the document or
the information therein is reasonably obtainable from another source,
the Executive Director for Operations shall advise the requesting
party.
(d) If the Executive Director for Operations objects to producing a
record or document, the requesting party may apply to the presiding
officer, in writing, to compel production of that record or document.
The application must set forth the relevancy of the record or document
to the issues in the proceeding. The application will be processed as a
motion in accordance with Sec. 2.323 (a) through (d). The record or
document covered by the application must be produced for the in camera
inspection of the presiding officer, exclusively, if requested by the
presiding officer and only to the extent necessary to determine:
(1) The relevancy of that record or document;
(2) Whether the document is exempt from disclosure under
Sec. 2.390;
(3) Whether the disclosure is necessary to a proper decision in the
proceeding;
(4) Whether the document or the information therein is reasonably
obtainable from another source.
(e) Upon a determination by the presiding officer that the
requesting party has demonstrated the relevancy of the record or
document and that its production is not exempt from disclosure under
Sec. 2.390 or that, if exempt, its disclosure is necessary to a proper
decision in the proceeding, and the document or the information therein
is not reasonably obtainable from another source, the presiding officer
shall order the Executive Director for Operations, to produce the
document.
(f) In the case of requested documents and records (including
Safeguards Information referred to in sections 147 and 181 of the
Atomic Energy Act, as amended) exempt from disclosure under Sec. 2.390,
but whose disclosure is found by the presiding officer to be necessary
to a proper decision in the proceeding, any order to the Executive
Director for Operations to produce the document or records (or any
other order issued ordering production of the document or records) may
contain any protective terms and conditions (including affidavits of
non-disclosure) as may be necessary and appropriate to limit the
disclosure to parties in the proceeding, to interested States and other
governmental entities participating under Sec. 2.315(c), and to their
qualified witnesses and counsel. When Safeguards Information protected
from disclosure under section 147 of the Atomic Energy Act, as amended,
is received and possessed by a party other than the Commission staff,
it must also be protected according to the requirements of Sec. 73.21
of this chapter. The presiding officer may also prescribe additional
procedures to effectively safeguard and prevent disclosure of
Safeguards Information to unauthorized persons with minimum impairment
of the procedural rights which would be available if Safeguards
Information were not involved. In addition to any other sanction that
may be imposed by the presiding officer for violation of an order
issued pursuant to this paragraph, violation of an order pertaining to
the disclosure of Safeguards Information protected from disclosure
under section 147 of the Atomic Energy Act, as amended, may be subject
to a civil penalty imposed under Sec. 2.205. For the purpose of
imposing the criminal penalties contained in section 223 of the Atomic
Energy Act, as amended, any order issued pursuant to this paragraph
with respect to Safeguards Information is considered to be an order
issued under section 161.b of the Atomic Energy Act.
(g) A ruling by the presiding officer or the Commission for the
production of a record or document will specify the time, place, and
manner of production.
(h) A request under this section may not be made or entertained
before the matters in controversy have been identified by the
Commission or the presiding officer, or after the beginning of the
prehearing conference held under Sec. 2.329 except upon leave of the
presiding officer for good cause shown.
(i) The provisions of Sec. 2.704 (c) and (e) apply to production of
NRC records and documents under this section.

Sec. 2.710 Motions for summary disposition.

(a) Any party to a proceeding may move, with or without supporting
affidavits, for a decision by the presiding officer in that party's
favor as to all or any part of the matters involved in the proceeding.
The moving party shall attach to the motion a separate, short, and
concise statement of the material facts as to which the moving party
contends that there is no genuine issue to be heard. Motions may be
filed at any time. Any other party may serve an answer supporting or
opposing the motion, with or without affidavits, within twenty (20)
days after service of the motion. The party shall attach to any answer
opposing the motion a separate, short, and concise statement of the
material facts as to which it is contended there exists a genuine issue
to be heard. All material facts set forth in the statement required to
be served by the moving party will be considered to be admitted unless
controverted by the statement required to be served by the opposing
party. The opposing party may, within ten (10) days after service,
respond in writing to new facts and arguments presented in any
statement filed in support of the motion. No further supporting
statements or responses thereto will be entertained. The presiding
officer need not consider a motion for summary disposition unless its
resolution will serve to expedite the proceeding if the motion is
granted. In addition, the presiding officer may dismiss summarily or
hold in abeyance motions filed shortly before the hearing commences or
during the hearing if the other parties or the presiding officer would
be required to divert substantial resources from the hearing in order
to respond adequately to the motion and thereby extend the proceeding.
(b) Affidavits must set forth the facts that would be admissible in
evidence, and must demonstrate affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. The
presiding officer may permit affidavits to be supplemented or opposed
by depositions, answers to interrogatories or further affidavits. When
a motion for summary decision is made and supported as provided in this
section, a party opposing the motion may not rest upon the mere
allegations or denials of his answer. The answer by affidavits or as
otherwise provided in this section must set forth specific facts
showing that there is a genuine issue of fact. If no answer is filed,
the decision sought, if appropriate, must be rendered.
(c) Should it appear from the affidavits of a party opposing the
motion that he or she cannot, for reasons stated, present by affidavit
facts essential to justify the party's opposition, the presiding
officer may refuse the application for summary decision, order a
continuance to permit affidavits to be obtained, or make an order as is
appropriate. A determination to that effect must be made a matter of
record.
(d) The presiding officer shall render the decision sought if the
filings in the proceeding, depositions, answers to

[[Page 19658]]

interrogatories, and admissions on file, together with the statements
of the parties and the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a decision as a matter of law. However, in any proceeding
involving a construction permit for a production or utilization
facility, the procedure described in this section may be used only for
the determination of specific subordinate issues and may not be used to
determine the ultimate issue as to whether the permit shall be issued.

Sec. 2.711 Evidence.

(a) General. Every party to a proceeding has the right to present
oral or documentary evidence and rebuttal evidence and to conduct, in
accordance with an approved cross-examination plan that contains the
information specified in paragraph (b)(2) of this section if so
directed by the presiding officer, any cross-examination required for
full and true disclosure of the facts.
(b) Testimony. The parties shall submit direct testimony of
witnesses in written form, unless otherwise ordered by the presiding
officer on the basis of objections presented. In any proceeding in
which advance written testimony is to be used, each party shall serve
copies of its proposed written testimony on each other party at least
fifteen (15) days in advance of the session of the hearing at which its
testimony is to be presented. The presiding officer may permit the
introduction of written testimony not so served, either with the
consent of all parties present or after they have had a reasonable
opportunity to examine it. Written testimony must be incorporated into
the transcript of the record as if read or, in the discretion of the
presiding officer, may be offered and admitted in evidence as an
exhibit.
(c) Cross-examination.
(1) The presiding officer may require a party seeking an
opportunity to cross-examine to request permission to do so in
accordance with a schedule established by the presiding officer. A
request to conduct cross-examination must be accompanied by a cross-
examination plan containing the following information:
(i) A brief description of the issue or issues on which cross-
examination will be conducted;
(ii) The objective to be achieved by cross-examination; and
(iii) The proposed line of questions that may logically lead to
achieving the objective of the cross-examination.
(2) The cross-examination plan may be submitted only to the
presiding officer and must be kept by the presiding officer in
confidence until issuance of the initial decision on the issue being
litigated. The presiding officer shall then provide each cross-
examination plan to the Commission's Secretary for inclusion in the
official record of the proceeding.
(d) Non-applicability to Subpart B proceedings. Paragraphs (b) and
(c) of this section do not apply to proceedings initiated under Subpart
B of this part for modification, suspension, or revocation of a license
or to proceedings for imposition of a civil penalty, unless otherwise
directed by the presiding officer.
(e) Admissibility. Only relevant, material, and reliable evidence
which is not unduly repetitious will be admitted. Immaterial or
irrelevant parts of an admissible document will be segregated and
excluded so far as is practicable.
(f) Objections. An objection to evidence must briefly state the
grounds of objection. The transcript must include the objection, the
grounds, and the ruling. Exception to an adverse ruling is preserved
without notation on the record.
(g) Offer of proof. An offer of proof, made in connection with an
objection to a ruling of the presiding officer excluding or rejecting
proffered oral testimony, must consist of a statement of the substance
of the proffered evidence. If the excluded evidence is in written form,
a copy must be marked for identification. Rejected exhibits, adequately
marked for identification, must be retained in the record.
(h) Exhibits. A written exhibit will not be received in evidence
unless the original and two copies are offered and a copy is furnished
to each party, or the parties have been previously furnished with
copies or the presiding officer directs otherwise. The presiding
officer may permit a party to replace with a true copy an original
document admitted in evidence.
(i) Proceedings involving applications. In any proceeding involving
an application, the NRC staff shall offer into evidence any report
submitted by the ACRS in the proceeding in compliance with section
182b. of the Act, any safety evaluation prepared by the NRC staff, and
any environmental impact statement prepared in the proceeding under
subpart A of part 51 of this chapter by the Director of Nuclear Reactor
Regulation or Director of Nuclear Material Safety and Safeguards, as
appropriate, or his or her designee.
(j) Official record. An official record of a government agency or
entry in an official record may be evidenced by an official publication
or by a copy attested by the officer having legal custody of the record
and accompanied by a certificate of his custody.
(k) Official notice.
(1) The Commission or the presiding officer may take official
notice of any fact of which a court of the United States may take
judicial notice or of any technical or scientific fact within the
knowledge of the Commission as an expert body. Each fact officially
noticed under this paragraph must be specified in the record with
sufficient particularity to advise the parties of the matters which
have been noticed or brought to the attention of the parties before
final decision and each party adversely affected by the decision shall
be given opportunity to controvert the fact.
(2) If a decision is stated to rest in whole or in part on official
notice of a fact which the parties have not had a prior opportunity to
controvert, a party may controvert the fact by filing an appeal from an
initial decision or a petition for reconsideration of a final decision.
The appeal must clearly and concisely set forth the information relied
upon to controvert the fact.

Sec. 2.712 Proposed findings and conclusions.

(a) Any party to a proceeding may, or if directed by the presiding
officer shall, file proposed findings of fact and conclusions of law,
briefs and a proposed form of order or decision within the time
provided by this section, except as otherwise ordered by the presiding
officer:
(1) The party who has the burden of proof shall, within thirty (30)
days after the record is closed, file proposed findings of fact and
conclusions of law and briefs, and a proposed form of order or
decision.
(2) Other parties may file proposed findings, conclusions of law
and briefs within forty (40) days after the record is closed.
(3) A party who has the burden of proof may reply within five (5)
days after filing of proposed findings and conclusions of law and
briefs by other parties.
(b) Failure to file proposed findings of fact, conclusions of law,
or briefs when directed to do so may be considered a default, and an
order or initial decision may be entered accordingly.
(c) Proposed findings of fact must be clearly and concisely set
forth in numbered paragraphs and must be confined to the material
issues of fact presented on the record, with exact citations to the
transcript of record and exhibits in support of each proposed finding.
Proposed conclusions of law must be set forth in numbered

[[Page 19659]]

paragraphs as to all material issues of law or discretion presented on
the record. An intervenor's proposed findings of fact and conclusions
of law must be confined to issues which that party placed in
controversy or sought to place in controversy in the proceeding.

Sec. 2.713 Initial decision and its effect.

(a) After hearing, the presiding officer will render an initial
decision which will constitute the final action of the Commission forty
(40) days after its date unless any party petitions for Commission
review in accordance with Sec. 2.340 or the Commission takes review sua
sponte.
(b) Where the public interest so requires, the Commission may
direct that the presiding officer certify the record to it without an
initial decision, and may:
(1) Prepare its own decision which will become final unless the
Commission grants a petition for reconsideration under Sec. 2.344; or
(2) Omit an initial decision on a finding that due and timely
execution of its functions imperatively and unavoidably so requires.
(c) An initial decision will be in writing and will be based on the
whole record and supported by reliable, probative, and substantial
evidence. The initial decision will include:
(1) Findings, conclusions, and rulings, with the reasons or basis
for them, on all material issues of fact, law, or discretion presented
on the record;
(2) All facts officially noticed and relied on in making the
decision;
(3) The appropriate ruling, order, or denial of relief with the
effective date;
(4) The time within which a petition for review of the decision may
be filed, the time within which answers in support of or in opposition
to a petition for review filed by another party may be filed and, in
the case of an initial decision which may become final in accordance
with paragraph (a) of this section, the date when it may become final.
18. In Sec. 2.902, paragraph (e) is revised to read as follows:

Sec. 2.902 Definitions.

* * * * *
(e) Party, in the case of proceedings subject to this subpart
includes a person admitted as a party under Sec. 2.309 or an interested
State admitted pursuant to Sec. 2.315(c).
19. Section 2.1000 is revised to read as follows:

Sec. 2.1000 Scope of Subpart.

The rules in this subpart, together with the rules in subpart G of
this part, govern the procedure for applications for authorization to
construct a high-level radioactive waste repository at a geologic
repository operations area noticed under Secs. 2.101(f)(8) or
2.105(a)(5), and for applications for authorization to receive and
possess high level radioactive waste at a geologic repository
operations area. The procedures in this subpart are to be used together
with the generally applicable procedures in subpart C of this part,
and, as appropriate, the procedures in subpart G of this part.
20. In Sec. 2.1001, the definition, Party, is revised to read as
follows

Sec. 2.1001 Definitions

* * * * *
Party for the purpose of this subpart means the DOE, the NRC staff,
the host State, any affected unit of local government as defined in
Section 2 of the Nuclear Waste Policy Act of 1982, as amended (42
U.S.C. 10101), any affected Indian Tribe as defined in Section 2 of the
Nuclear Waste Policy Act of of 1982, as amended (42 U.S.C. 10101), and
a person admitted under Sec. 2.309 to the proceeding on an application
for authorization to construct a high-level radioactive waste
repository at a geologic repository operations area noticed under
Secs. 2.101(f)(8) or 2.105(a)(5), and for applications for
authorization to receive and possess high level radioactive waste at a
geologic repository operations area under part 60 of this chapter;
provided that a host State, affected unit of local government, or
affected Indian Tribe files a list of contentions in accordance with
the provisions of Sec. 2.309.
* * * * *
21. In Sec. 2.1010, paragraph (e) is revised to read as follows:

Sec. 2.1010 Pre-license application presiding officer.

* * * * *
(e) The Pre-License Application presiding officer possesses all the
general powers specified in Secs. 2.321(c) and 2.319.
* * * * *
22. In Sec. 2.1012, paragraph (b) is revised to read as follows:

Sec. 2.1012 Compliance.

* * * * *
(b)(1) A person, including a potential party given access to the
Licensing Support Network under this subpart, may not be granted party
status under Sec. 2.309, or status as an interested governmental
participant under Sec. 2.315, if it cannot demonstrate substantial and
timely compliance with the requirements of Sec. 2.1003 at the time it
requests participation in the high-level waste licensing proceeding
under Sec. 2.309 or Sec. 2.315.
(2) A person denied party status or interested governmental
participant status under paragraph (b)(1) of this section may request
party status or interested governmental participant status upon a
showing of subsequent compliance with the requirements of Sec. 2.1003.
Admission of such a party or interested governmental participant under
Secs. 2.309 or 2.315, respectively, is conditioned on accepting the
status of the proceeding at the time of admission.
* * * * *
23. In Sec. 2.1013, paragraphs (a)(1) and (b) are revised to read
as follows:

Sec. 2.1013 Use of the electronic docket during the proceeding.

(a)(1) As specified in Sec. 2.303, the Secretary of the Commission
will maintain the official docket of the proceeding on the application
for authorization to construct a high-level radioactive waste
repository at a geologic repository operations area noticed under
Secs. 2.101(f)(8) or 2.105(a)(5), and for applications to receive and
possess high level radioactive waste at a geologic repository
operations area under part 60 of this chapter.
(2) * * *
(b) Absent good cause, all exhibits tendered during the hearing
must have been made available to the parties in electronic form before
the commencement of that portion of the hearing in which the exhibit
will be offered. The electronic docket will contain a list of all
exhibits, showing where in the transcript each was marked for
identification and where it was received into evidence or rejected. For
any hearing sessions recorded stenographically or by other means,
transcripts will be entered into the electronic docket on a daily basis
in order to afford next-day availability at the hearing. However, for
any hearing sessions recorded on videotape or other video medium, if a
copy of the video recording is made available to all parties on a daily
basis that affords next-day availability at the hearing, a transcript
of the session prepared from the video recording will be entered into
the electronic docket within twenty-four (24) hours of the time the
transcript is tendered to the electronic docket by the transcription
service.
* * * * *

Sec. 2.1014 [Removed]

24. Section 20.1014 is removed.
25. In Sec. 2.1015, paragraphs (b) and (d) are revised to read as
follows:

[[Page 19660]]

Sec. 2.1015 Appeals.

* * * * *
(b) A notice of appeal from a Pre-License Application presiding
officer order issued under Sec. 2.1010, a presiding officer prehearing
conference order issued under Sec. 2.1021, a presiding officer order
granting or denying a motion for summary disposition issued in
accordance with Sec. 2.1025, or a presiding officer order granting or
denying a petition to amend one or more contentions under Sec. 2.309,
must be filed with the Commission no later than ten (10) days after
service of the order. A supporting brief must accompany the notice of
appeal. Any other party, interested governmental participant, or
potential party may file a brief in opposition to the appeal no later
than ten (10) days after service of the appeal.
* * * * *
(d) When, in the judgment of a Pre-License Application presiding
officer or presiding officer, prompt appellate review of an order not
immediately appealable under paragraph (b) of this section is necessary
to prevent detriment to the public interest or unusual delay or
expense, the Pre-License Application presiding officer or presiding
officer may refer the ruling promptly to the Commission, and shall
provide notice of this referral to the parties, interested governmental
participants, or potential parties. The parties, interested
governmental participants, or potential parties may also request that
the Pre-License Application presiding officer or presiding officer
certify under Sec. 2.319 rulings not immediately appealable under
paragraph (b) of this section.
* * * * *

Sec. 2.1016 Motions. [Removed]

26. Section 2.1016 is removed.
27. In Sec. 2.1018, paragraphs (c), (f)(3) and (g) are revised to
read as follows:

Sec. 2.1018 Discovery.

* * * * *
(c)(1) Upon motion by a party, potential party, interested
governmental participant, or the person from whom discovery is sought,
and for good cause shown, the presiding officer may make any order that
justice requires to protect a party, potential party, interested
governmental participant, or other person from annoyance,
embarrassment, oppression, or undue burden, delay, or expense,
including one or more of the following:
(i) That the discovery not be had;
(ii) that the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(iii) that the discovery may be had only by a method of discovery
other than that selected by the party, potential party, or interested
governmental participant seeking discovery;
(iv) that certain matters not be inquired into, or that the scope
of discovery be limited to certain matters;
(v) that discovery be conducted with no one present except persons
designated by the presiding officer;
(vi) that, subject to the provisions of Sec. 2.390 of this part, a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
or
(vii) that studies and evaluations not be prepared.
(2) If the motion for a protective order is denied in whole or in
part, the presiding officer may, on such terms and conditions as are
just, order that any party, potential party, interested governmental
participant or other person provide or permit discovery.
* * * * *
(f) * * *
(3) An independent request for issuance of a subpoena may be
directed to a nonparty for production of documents. This section does
not apply to requests for the testimony of the NRC regulatory staff
pursuant to Sec. 2.709.
(g) The presiding officer, under Sec. 2.322, may appoint a
discovery master to resolve disputes between parties concerning
informal requests for information as provided in paragraphs (a)(1) and
(a)(2) of this section.

Sec. 2.1019 Depositions. [Amended]

28. In Sec. 2.1019, paragraph (j) is removed.
29. Section 2.1021 is revised to read as follows:

Sec. 2.1021 First prehearing conference.

In any proceeding involving an application for a license to receive
and possess high-level radioactive waste at a geologic repository
operations area under part 60 of this chapter, the Commission or the
presiding officer will direct the parties, interested governmental
participants and any petitioners for intervention, or their counsel, to
appear at a specified time and place, for a conference as provided by
Sec. 2.329.
30. In Sec. 2.1023, the introductory test of paragraph (a) and
paragraph (a)(1) are revised to read as follows:

Sec. 2.1023 Immediate effectiveness.

(a) Pending review and final decision by the Commission, an initial
decision resolving all issues before the presiding officer in favor of
issuance or amendment of either an authorization to construct a high-
level radioactive waste repository at a geologic repository operations
area under Sec. 60.31 of this chapter, or an authorization to receive
and possess high-level radioactive waste at a geologic repository
operations area pursuant to Sec. 60.41 of this chapter, will be
immediately effective upon issuance except--
(1) As provided in any order issued in accordance with Sec. 2.341
of this part that stays the effectiveness of an initial decision; or
* * * * *
31. In Sec. 2.1109, paragraphs (a)(1) and (c) are revised to read
as follows:

Sec. 2.1109 Requests for oral argument.

(a)(1) In its request for hearing/petition to intervene filed in
accordance with Sec. 2.309 or in the applicant's or the NRC staff's
response to a request for a hearing/petition to intervene, any party
may invoke the hybrid hearing procedures in this Subpart by requesting
an oral argument. If it is determined that a hearing will be held, the
presiding officer shall grant a timely request for oral argument.
* * * * *
(c) If no party to the proceeding requests oral argument, or if all
untimely requests for oral argument are denied, the presiding officer
shall conduct the proceeding in accordance with the subpart under which
the proceeding was initially conducted as determined in accordance with
Sec. 2.310.
* * * * *

Sec. 2.1111 [Reserved]

32. Section 2.1111 is removed.
33. Section 2.1117 is revised to read as follows:

Sec. 2.1117 Applicability of other sections.

In proceedings subject to this part, the provisions of subparts A,
C and L of this part are also applicable, except where inconsistent
with the provisions of this subpart.
34. Subpart L is revised to read as follows:
Subpart L--Informal Hearing Procedures for NRC Adjudications
Sec.
2.1200 Scope of subpart.
2.1201 Definitions.
2.1202 Authority and role of NRC staff.
2.1203 Hearing file; prohibition on discovery.
2.1204 Motions and requests.
2.1205 Summary disposition.
2.1206 Informal hearings.
2.1207 Process and schedule for submissions and presentations in
an oral hearing.
2.1208 Process and schedule for a hearing consisting of written
presentations.

[[Page 19661]]

2.1209 Findings of fact and conclusions of law.
2.1210 Initial decision and its effect.
2.1211 Immediate effectiveness of initial decision directing
issuance or amendment of licenses under part 61 of this chapter.
2.1212 Petitions for Commission review of initial decisions.
2.1213 Application for a stay.

Subpart L--Informal Hearing Procedures for NRC Adjudications

Sec. 2.1200 Scope of subpart.

The provisions of this subpart may be applied to all adjudicatory
proceedings conducted under the authority of the Atomic Energy Act of
1954, as amended, the Energy Reorganization Act, and 10 CFR part 2,
except for proceedings on the licensing of the construction and
operation of a uranium enrichment facility, proceedings on an initial
application for authorization to construct a high-level radioactive
waste repository at a geologic repository operations area noticed under
Secs. 2.101(f)(8) or 2.105(a)(5), proceedings on an initial application
for authority to receive and possess high-level radioactive waste at a
geologic repository operations area, and proceedings on enforcement
matters.

Sec. 2.1201 Definitions.

The definitions of terms contained in Sec. 2.4 apply to this
subpart unless a different definition is provided in this subpart.

Sec. 2.1202 Authority and role of NRC staff.

(a) During the pendency of any hearing under this subpart,
consistent with the NRC staff's findings in its own review of the
application or matter which is the subject of the hearing and as
authorized by law, the NRC staff is expected to issue its approval or
denial of the application promptly or take other appropriate action on
the matter which is the subject of the hearing. Notice of the NRC
staff's action must be promptly transmitted to the presiding officer
and the parties to the proceeding. The NRC staff's action on the matter
is effective upon issuance by the staff, except in matters involving:
(1) An application to construct and/or operate a production or
utilization facility;
(2) An application for an amendment to a construction authorization
at a geologic repository operations area falling under 10 CFR
60.32(c)(1);
(3) An application for the construction and operation of an
independent spent fuel storage installation (ISFSI) located at a site
other than a reactor site or a monitored retrievable storage
installation (MRS) under 10 CFR part 72; and
(4) Production or utilization facility licensing actions that
involve significant hazards considerations as defined in 10 CFR 50.92.
(b)(1) The NRC staff is not required to be a party to a proceeding
under this subpart, except where:
(i) The proceeding involves an application denied by the NRC staff
or an enforcement action proposed by the NRC staff;
(ii) The presiding officer determines that the resolution of any
issue in the proceeding would be aided materially by the NRC staff's
participation in the proceeding as a party and orders the NRC staff to
participate as a party for the identified issue. In the event that the
presiding officer determines that the NRC staff's participation is
necessary, the presiding officer shall issue an order specifically
identifying the issue(s) on which the NRC staff is to participate as
well as setting forth the basis for the determination that NRC staff's
participation will materially aid in resolution of the issue(s).
(2) Within fifteen (15) days of the issuance of the order granting
requests for hearing/petitions to intervene and admitting contentions,
the NRC staff shall provide notice to the presiding officer and the
parties on whether or not it desires to participate as a party, and
identifying any contentions on which it wishes to participate as a
party. Once the NRC staff chooses to participate as a party, it must be
considered a party with all the rights and responsibilities of a party
with respect to the admitted contentions of other parties which it
identifies.

Sec. 2.1203 Hearing file; prohibition on discovery.

(a)(1) Within thirty (30) days of the issuance of the order
granting requests for hearing/petitions to intervene and admitting
contentions, the NRC staff shall file in the docket, present to the
presiding officer, and make available to the parties to the proceeding
a hearing file.
(2) The hearing file must be made available to the parties either
by service of hard copies or by making the file available at the NRC
Web site, http://www.nrc.gov.
(3) The hearing file also must be made available for public
inspection and copying at the NRC Web site, http://www.nrc.gov, and/or
at the NRC Public Document Room.
(b) The hearing file consists of the application, if any, and any
amendment to the application, and, when available, any NRC
environmental impact statement or assessment and any NRC report related
to the proposed action, as well as any correspondence between the
applicant/licensee and the NRC that is relevant to the proposed action.
Hearing file documents already available at the NRC Web site and/or the
NRC Public Document Room when the hearing request/petition to intervene
is granted may be incorporated into the hearing file at those locations
by a reference indicating where at those locations the documents can be
found. The presiding officer shall rule upon any issue regarding the
appropriate materials for the hearing file.
(c) The NRC staff has a continuing duty to keep the hearing file up
to date with respect to the materials set forth in paragraph (b) of
this section and to provide those materials as required in paragraphs
(a) and (b) of this section.
(d) Except as otherwise permitted by subpart C of this part, a
party may not seek discovery from any other party or the NRC or its
personnel, whether by document production, deposition, interrogatories
or otherwise.

Sec. 2.1204 Motions and requests.

(a) General requirements. In proceedings under this subpart,
requirements for motions and requests and responses to them are as
specified in Sec. 2.323.
(b) Requests for cross-examination by the parties. In any oral
hearing under this subpart, a party may file a motion with the
presiding officer to permit cross-examination by the parties on
particular admitted contentions or issues. The presiding officer may
allow cross-examination by the parties if the presiding officer
determines that cross-examination by the parties is necessary to ensure
the development of an adequate record for decision.

Sec. 2.1205 Summary disposition.

(a) Unless the presiding officer or the Commission directs
otherwise, motions for summary disposition may be submitted to the
presiding officer by any party no later than forty-five (45) days
before the commencement of hearing. The motions must be in writing and
must include a written explanation of the basis of the motion, and
affidavits to support statements of fact. Motions for summary
disposition must be served on the parties and the Secretary at the same
time that they are submitted to the presiding officer.
(b) Any other party may serve an answer supporting or opposing the
motion within twenty (20) days after service of the motion.
(c) The presiding officer shall issue a determination on each
motion for

[[Page 19662]]

summary disposition no later than fifteen (15) days before the date
scheduled for commencement of hearing. In ruling on motions for summary
disposition, the presiding officer shall apply the standards for
summary disposition set forth in subpart G of this part.

Sec. 2.1206 Informal hearings.

Hearings under this subpart will be oral hearings as described in
Sec. 2.1207, unless, within fifteen (15) days of the service of the
order granting the request for hearing, the parties unanimously agree
and file a joint motion requesting a hearing consisting of written
submissions. A motion to hold a hearing consisting of written
submissions will not be entertained unless there is unanimous consent
of the parties.

Sec. 2.1207 Process and schedule for submissions and presentations in
an oral hearing.

(a) Unless otherwise limited by this subpart or by the presiding
officer, participants in an oral hearing may submit and sponsor in the
hearings--
(1) Initial written statements of position and written testimony
with supporting affidavits on the admitted contentions. These materials
must be filed on the dates set by the presiding officer.
(2) Written responses and rebuttal testimony with supporting
affidavits directed to the initial statements and testimony of other
participants. These materials must be filed within twenty (20) days of
the service of the materials submitted under paragraph (a)(1) of this
section unless the presiding officer directs otherwise.
(3)(i) Proposed questions for the presiding officer to consider for
propounding to the persons sponsoring the testimony. These questions
must be filed within twenty (20) days of the service of the materials
submitted under paragraph (a)(1) of this section unless the presiding
officer directs otherwise.
(ii) Proposed questions directed to rebuttal testimony for the
presiding officer to consider for propounding to persons sponsoring the
testimony. These questions must be filed within seven (7) days of the
service of the rebuttal testimony unless the presiding officer directs
otherwise.
(iii) Questions submitted under paragraphs (a)(3)(i) and (ii) of
this section may be propounded at the discretion of the presiding
officer.
(b) Oral hearing procedures.
(1) The oral hearing must be transcribed.
(2) Written testimony will be received into evidence in exhibit
form.
(3) Participants may designate and present their own witnesses to
the presiding officer.
(4) Testimony for the NRC staff will be presented only by persons
designated by the Executive Director for Operations for that purpose.
(5) The presiding officer may accept written testimony from a
person unable to appear at the hearing, and may request that person to
respond in writing to questions.
(6) Participants and witnesses will be questioned orally or in
writing and only by the presiding officer or the presiding officer's
designee (e.g., an Special Assistant appointed under Sec. 2.322). The
presiding officer will examine the participants and witnesses using
questions prepared by the presiding officer or the presiding officer's
designee, questions submitted by the participants at the discretion of
the presiding officer, or a combination of both. Questions may be
addressed to individuals or to panels of participants or witnesses.

Sec. 2.1208 Process and schedule for a hearing consisting of written
presentations.

(a) Unless otherwise limited by this subpart or by the presiding
officer, participants in a hearing consisting of written presentations
may submit--
(1) Initial written statements of position and written testimony
with supporting affidavits on the admitted contentions. These materials
must be filed on the dates set by the presiding officer.
(2) Written responses, rebuttal testimony with supporting
affidavits directed to the initial statements and testimony of
witnesses and other participants, and proposed written questions for
the presiding officer to consider for submission to the persons
sponsoring testimony under paragraph (a)(1) of this section. These
materials must be filed within twenty (20) days of the service of the
materials submitted under paragraph (a)(1) of this section unless the
presiding officer directs otherwise.
(3) Proposed written questions directed to the written responses
and rebuttal testimony submitted under paragraph (a)(2) of this section
for the presiding officer to consider for submittal to the persons
offering the written responses and rebuttal testimony. These questions
must be filed within seven (7) days of service of the materials
submitted under paragraph (a)(2) of this section unless the presiding
officer directs otherwise.
(4) Written concluding statements of position on the contentions.
These statements shall be filed within twenty (20) days of the service
of written responses to the presiding officer's questions to the
participants or, in the absence of questions from the presiding
officer, within twenty (20) days of the service of the materials
submitted under paragraph (a)(2) of this section unless the presiding
officer directs otherwise.
(b) The presiding officer may formulate and submit written
questions to the participants that he or she considers appropriate to
develop an adequate record.

Sec. 2.1209 Findings of fact and conclusions of law.

Each party shall file written post-hearing proposed findings of
fact and conclusions of law on the contentions addressed in a oral
hearing under Sec. 2.1207 or a written hearing under Sec. 2.1208 within
thirty (30) days of the close of the hearing or at such other time as
the presiding officer directs.

Sec. 2.1210 Initial decision and its effect.

(a) Unless the Commission directs that the record be certified to
it in accordance with paragraph (b) of this section, the presiding
officer shall render an initial decision after completion of an
informal hearing under this subpart. That initial decision constitutes
the final action of the Commission forty (40) days after the date of
issuance, unless any party files a petition for Commission review in
accordance with Sec. 2.1210 or the Commission takes review of the
decision sua sponte.
(b) The Commission may direct that the presiding officer certify
the record to it without an initial decision and prepare a final
decision if the Commission finds that due and timely execution of its
functions warrants certification.
(c) An initial decision must be in writing and must be based only
upon information in the record or facts officially noticed. The record
must include all information submitted in the proceeding with respect
to which all parties have been given reasonable prior notice and an
opportunity to comment as provided in Secs. 2.1207 or 2.1208. The
initial decision must include--
(1) Findings, conclusions, and rulings, with the reasons or basis
for them, on all material issues of fact or law admitted as part of the
contentions in the proceeding;
(2) The appropriate ruling, order, or grant or denial of relief
with its effective date; and
(3) The time within which a petition for Commission review may be
filed, the time within which any answers to a petition for review may
be filed, and the

[[Page 19663]]

date when the decision becomes final in the absence of a petition for
Commission review or Commission sua sponte review.
(d) Pending review and final decision by the Commission, an initial
decision resolving all issues before the presiding officer is
immediately effective upon issuance except--
(1) As provided in any order issued in accordance with Sec. 2.1211
that stays the effectiveness of an initial decision; or
(2) As otherwise provided by this part (e.g., Sec. 2.312) or by the
Commission in special circumstances.

Sec. 2.1211 Immediate effectiveness of initial decision directing
issuance or amendment of licenses under part 61 of this chapter.

An initial decision directing the issuance of a license under part
61 of this chapter (relating to land disposal of radioactive waste or
any amendments to such a license authorizing actions which may
significantly affect the health and safety of the public) will become
effective only upon order of the Commission. The Director of Nuclear
Material Safety and Safeguards may not issue a license under part 61 of
this chapter, or any amendment to such a license that may significantly
affect the health and safety of the public until expressly authorized
to do so by the Commission.

Sec. 2.1212 Petitions for Commission review of initial decisions.

Parties may file petitions for review of an initial decision under
this subpart in accordance with the procedures set out in Sec. 2.340. A
petition for review must be filed for a party to exhaust its
administrative remedies before seeking judicial review.

Sec. 2.1213 Applications for a stay.

(a) Any application for a stay of the effectiveness of the NRC
staff's action on a matter involved in a hearing under this subpart
must be filed with the presiding officer within 5 days of the issuance
of the notice of NRC staff's action under Sec. 2.1202(a) and must be
filed and considered in accordance with paragraphs (b), (c) and (d) of
this section.
(b) An application for a stay of the NRC staff's action may not be
longer than ten (10) pages, exclusive of affidavits, and must contain:
(1) A concise summary of the action which is requested to be
stayed; and
(2) A concise statement of the grounds for a stay, with reference
to the factors specified in paragraph (d) of this section.
(c) Within ten (10) days after service of an application for a stay
of the NRC staff's action under this section, any party and/or the NRC
staff may file an answer supporting or opposing the granting of a stay.
Answers may not longer than ten (10) pages, exclusive of affidavits,
and must concisely address the matters in paragraph (b) of this section
as appropriate. Further replies to answers will not be entertained.
(d) In determining whether to grant or deny an application for a
stay of the NRC staff's action, the following will be considered:
(1) Whether the requestor will be irreparably injured unless a stay
is granted;
(2) Whether the requestor has made a strong showing that it is
likely to prevail on the merits;
(3) Whether the granting of a stay would harm other participants;
and
(4) Where the public interest lies.
(e) Any application for a stay of the effectiveness of the
presiding officer's initial decision or action under this subpart shall
be filed with the Commission in accordance with Sec. 2.341.
35. The heading for Subpart M is revised to read as follows:

Subpart M--Procedures for Hearings on License Transfer Applications

Sec. 2.1306 [Removed]

36. Section 2.1306 is removed.

Sec. 2.1307 [Removed]

37. Section 1307 is removed.

Sec. 2.1308 [Removed]

38. Section 2.1308 is removed.

Sec. 2.1312 [Removed]

39. Section 2.1312 is removed.

Sec. 2.1313 [Removed]

40. Section 2.1313 is removed.

Sec. 2.1314 [Removed]

41. Section 2.1314 is removed.

Sec. 2.1317 [Removed]

42. Section 2.1317 is removed.

Sec. 2.1318 [Removed]

43. Section 2.1318 is removed.
44. In Sec. 2.1321, the introductory paragraph is republished and
paragraph (a) is revised to read as follows:

Sec. 2.1321 Participation and schedule for submission in a hearing
consisting of written comments.

Unless otherwise limited by this subpart or by the Commission,
participants in a hearing consisting of written comments may submit:
(a) Initial written statements of position and written testimony
with supporting affidavits on the issues. These materials must be filed
on the date set by the Commission or the presiding officer.
* * * * *
45. In Sec. 2.1322, the introductory text of paragraph (a) is
republished, and paragraph (a)(1) is revised to read as follows:

Sec. 2.1322 Participation and schedule for submissions in an oral
hearing.

(a) Unless otherwise limited by this subpart or by the Commission,
participants in an oral hearing may submit and sponsor in the hearings:
(1) Initial written statements of position and written testimony
with supporting affidavits on the issues. These materials must be filed
on the date set by the Commission or the presiding officer.
* * * * *

Sec. 2.1326 [Removed]

46. Section 2.1326 is removed.

Sec. 2.1328 [Removed]

47. Section 2.1328 is removed.

Sec. 2.1329 [Removed]

48. Section 2.1329 is removed.

Sec. 2.1330 [Removed]

49. Section 2.1330 is removed.
50. In Sec. 2.1331, paragraph (b) is revised to read as follows:

Sec. 2.1331 Commission Action.

* * * * *
(b) The decision on issues designated for hearing under Sec. 2.309
will be based on the record developed at hearing.
51. A new Subpart N is added to read as follows:
Subpart N--Expedited Proceedings with Oral Hearings
Sec.
2.1400 Purpose and scope.
2.1401 Definitions.
2.1402 General procedures and limitations; requests for other
procedures.
2.1403 Authority and role of the NRC staff.
2.1404 Prehearing conference.
2.1405 Hearing.
2.1406 Initial decision--issuance and effectiveness.
2.1407 Appeal and Commission review of initial decision.

Subpart N--Expedited Proceedings with Oral Hearings

Sec. 2.1400 Purpose and scope.

The purpose of this subpart is to provide simplified procedures for
the expeditious resolution of disputes among parties in an informal
hearing process. The provisions of this Subpart may be applied to all
adjudicatory proceedings conducted under the authority of the Atomic
Energy Act of 1954, as amended, the Energy

[[Page 19664]]

Reorganization Act of 1974, and 10 CFR part 2 except--
(a) Proceedings on the licensing of the construction and operation
of a uranium enrichment facility; and
(b) Proceedings on an initial application for authorization to
construct a high-level radioactive waste repository at a geologic
repository operations area noticed under Secs. 2.101(f)(8) or
2.105(a)(5), and for an initial application for authorization to
receive and possess high level radioactive waste at a geologic
repository operations area under part 60 of this Chapter.

Sec. 2.1401 Definitions.

The definitions of terms in Sec. 2.4 apply to this subpart unless a
different definition is provided in this subpart.

Sec. 2.1402 General procedures and limitations; requests for other
procedures.

(a) Generally-applicable procedures. For proceedings conducted
under this subpart--
(1) Except where provided otherwise in this subpart or specifically
requested by the presiding officer or the Commission, written pleadings
and briefs (regardless of whether they are in the form of a letter, a
formal legal submission, or otherwise) are not permitted.
(2) Requests to schedule a conference to consider oral motions may
be in writing and served on the Presiding officer and the parties.
(3) Motions for summary disposition before the hearing has
concluded and motions for reconsideration to the presiding officer or
the Commission are not permitted.
(4) All motions must be presented and argued orally.
(5) The presiding officer will reflect all rulings on motions and
other requests from the parties in a written decision. A verbatim
transcript of oral rulings satisfies this requirement.
(6) Except for the information disclosure requirements set forth in
subpart C, requests for discovery will not be entertained.
(7) The presiding officer may issue written orders and rulings
necessary for the orderly and effective conduct of the proceeding.
(b) Other procedures. If it becomes apparent at any time before a
hearing is held that a proceeding selected for adjudication under this
subpart is not appropriate for application of this subpart, the
presiding officer or the Commission may, on its own motion or at the
request of a party, order the proceeding to continue under another
appropriate subpart. If a proceeding under this subpart is discontinued
because the proceeding is not appropriate for application of this
subpart, the presiding officer may issue written orders necessary for
the orderly continuation of the hearing process under another subpart.
(c) Request for cross-examination. A party may present an oral
motion to the presiding officer to permit cross-examination by the
parties on particular admitted contentions or issues. The presiding
officer may allow cross-examination by the parties if he or she
determines that cross-examination by the parties is necessary for the
development of an adequate record for decision.

Sec. 2.1403 Authority and role of NRC staff.

(a) During the pendency of any hearing under this subpart,
consistent with the NRC staff's findings in its own review of the
application or matter which is the subject of the hearing and as
authorized by law, the NRC staff is expected to issue its approval or
denial of the application promptly, or take other appropriate action on
the matter which is the subject of the hearing. Notice of the NRC
staff's action must be promptly transmitted to the presiding officer
and the parties to the proceeding. The NRC staff's action on the matter
is effective upon issuance, except in matters involving:
(1) An application to construct and/or operate a production or
utilization facility;
(2) An application for the construction and operation of an
independent spent fuel storage installation located at a site other
than a reactor site or a monitored retrievable storage facility under
10 CFR part 72;
(3) Production or utilization facility licensing actions that
involve significant hazards considerations as defined in 10 CFR 50.92.
(b)(1) The NRC staff is not required to be a party to proceedings
under this subpart, except where:
(i) The proceeding involves an application denied by the NRC staff
or an enforcement action proposed by the staff; or
(ii) The presiding officer determines that the resolution of any
issue in the proceeding would be aided materially by the NRC staff's
participation in the proceeding as a party and orders the staff to
participate as a party for the identified issue. In the event that the
presiding officer determines that the NRC staff's participation is
necessary, the presiding officer shall issue an order identifying the
issue(s) on which the staff is to participate as well as setting forth
the basis for the determination that staff participation will
materially aid in resolution of the issue(s).
(2) If the NRC staff desires to participate as a party, the staff
shall notify the presiding officer and the parties no later than the
time of the prehearing conference provided by Sec. 2.1404. After the
appropriate notification, the NRC staff is a party with all the rights
and responsibilities of a party.

Sec. 2.1404 Prehearing conference.

(a) No later than 40 days after the order granting requests for
hearing/petitions to intervene, the presiding officer shall conduct a
prehearing conference. At the discretion of the presiding officer, the
prehearing conference may be held in person or by telephone or through
the use of video conference technology.
(b) At the prehearing conference, each party shall provide the
presiding officer and the parties participating in the conference with
a statement identifying each witness the party plans to present at the
hearing and a written summary of the oral and written testimony of each
proposed witness. If the prehearing conference is not held in person,
each party shall forward the summaries of the party's witnesses'
testimony to the presiding officer and the other parties by such means
that will ensure the receipt of the summaries by the commencement of
the prehearing conference.
(c) At the prehearing conference, the parties shall describe the
results of their efforts to settle their disputes or narrow the
contentions that remain for hearing, provide an agreed statement of
facts, if any, identify witnesses that they propose to present at
hearing, provide questions or question areas that they would propose to
have the presiding officer cover with the witnesses at the hearing, and
discuss other pertinent matters. At the conclusion of the conference,
the presiding officer will issue an order specifying the issues to be
addressed at the hearing and setting forth any agreements reached by
the parties. The order must include the scheduled date for any hearing
that remains to be held, and address any other matters as appropriate.

Sec. 2.1405 Hearing.

(a) No later than twenty (20) days after the conclusion of the
prehearing conference, the presiding officer shall hold a hearing on
any contention that remains in dispute. At the beginning of the
hearing, the presiding officer shall enter into the record all
agreements reached by the parties before the hearing.

[[Page 19665]]

(b) A hearing will be recorded stenographically or by other means,
under the supervision of the presiding officer. A transcript will be
prepared from the recording that will be the sole official transcript
of the hearing. The transcript will be prepared by an official reporter
who may be designated by the Commission or may be a regular employee of
the Commission. Except as limited by section 181 of the Act or order of
the Commission, the transcript will be available for inspection in the
agency's public records system. Copies of transcripts are available to
the parties and to the public from the official reporter on payment of
the charges fixed therefor. If a hearing is recorded on videotape or
other video medium, copies of the recording of each daily session of
the hearing may be made available to the parties and to the public from
the presiding officer upon payment of a charge fixed by the Chief
Administrative Judge. Parties may purchase copies of the transcript
from the reporter.
(c) Hearings will be open to the public, unless portions of the
hearings involving proprietary or other protectable information are
closed in accordance with the Commission's regulations.
(d) At the hearing, the presiding officer will receive oral
evidence that is not irrelevant, immaterial, unreliable or unduly
repetitious. Testimony will be under oath or affirmation.
(e) The presiding officer may question witnesses who testify at the
hearing, but the parties may not do so.
(f) Each party may present oral argument and a final statement of
position at the close of the hearing. Written post-hearing briefs and
proposed findings are not permitted unless ordered by the presiding
officer.

Sec. 2.1406 Initial Decision--issuance and effectiveness.

(a) Where practicable, the presiding officer will render a decision
from the bench. In rendering a decision from the bench, the presiding
officer shall state the issues in the proceeding and make clear its
findings of fact and conclusions of law on each issue. The presiding
officer's decision and order must be reduced to writing and transmitted
to the parties as soon as practicable, but not later than twenty (20)
days, after the hearing ends. If a decision is not rendered from the
bench, a written decision and order will be issued not later than
thirty (30) days after the hearing ends. Approval of the Chief
Administrative Judge must be obtained for an extension of these time
periods, and in no event may a written decision and order be issued
later than sixty (60) days after the hearing ends without the express
approval of the Commission.
(b) The presiding officer's written decision must be served on the
parties and filed with the Commission when issued.
(c) The presiding officer's initial decision is effective and
constitutes the final action of the Commission twenty (20) days after
the date of issuance of the written decision unless any party appeals
to the Commission in accordance with Sec. 2.1407 or the Commission
takes review of the decision sua sponte or the regulations in this part
specify other requirements with regard to the effectiveness of
decisions on certain applications.

Sec. 2.1407 Appeal and Commission review of initial decision.

(a)(1) Within fifteen (15) days after service of a written initial
decision, a party may file a written appeal seeking the Commission's
review on the grounds specified in paragraph (b) of this section. The
filing of an appeal with the Commission is mandatory for a party to
exhaust its administrative remedies before seeking judicial review.
(2) An appeal under this section may not be longer than twenty (20)
pages and must contain the following:
(i) A concise statement of the specific rulings and decisions that
are being appealed;
(ii) A concise statement (including record citations) where the
matters of fact or law raised in the appeal were previously raised
before the presiding officer and, if they were not, why they could not
have been raised;
(iii) A concise statement why, in the appellant's view, the
decision or action is erroneous; and
(iv) A concise statement why the Commission should review the
decision or action, with particular reference to the grounds specified
in paragraph (b) of this section.
(3) Any other party to the proceeding may, within fifteen (15) days
after service of the appeal, file an answer supporting or opposing the
appeal. The answer may not be longer than twenty (20) pages and should
concisely address the matters specified in paragraph (a)(2) of this
section. The appellant does not have a right to reply. Unless it
directs additional filings or oral arguments, the Commission will
decide the appeal on the basis of the filings permitted by this
paragraph.
(b) In considering the appeal, the Commission will give due weight
to the existence of a substantial question with respect to the
following considerations--
(1) A finding of material fact is clearly erroneous or in conflict
with a finding as to the same fact in a different proceeding;
(2) A necessary legal conclusion is without governing precedent or
is a departure from, or contrary to, established law;
(3) A substantial and important question of law, policy or
discretion has been raised by the appeal;
(4) The conduct of the proceeding involved a prejudicial procedural
error; or
(5) Any other consideration which the Commission may deem to be in
the public interest.
52. Appendix D to 10 CFR part 2 is revised to read as follows:

Appendix D to Part 2.--Schedule for the Proceeding on Application for a License to Receive and Possess High-
Level Radioactive Waste at a Geological Repository Operations Area
----------------------------------------------------------------------------------------------------------------
Day Regulation (10 CFR) Action
----------------------------------------------------------------------------------------------------------------
0..................................... 2.101(f)(8), 2.105(a)(5)...... Federal Register Notice of Hearing.
30.................................... 2.1014(a)(1).................. Petition to intervene/request for w/
contentions.
2.309(h)...................... Petition for status as interested
government participant.
55.................................... 2.309(i)(1)................... Answers to intervention & interested
government participant petitions.
60.................................... 2.309(i)(2)................... Petitioner's response to answers.
70.................................... .............................. Prehearing Conference.
100................................... 2.1021, 2.329................. Prehearing Conference Order; identifies
participants in proceeding, admits
cotentions, sets discovery and other
schedules.
110................................... 2.1015(b)..................... Appeals from Prehearing Conference
Order.
120................................... 2.1015(b)..................... Briefs in opposition to appeals.
150................................... .............................. Commission ruling on appeals from
Prehearing Conference Order.

[[Page 19666]]

548................................... .............................. Staff issues SER.
578................................... .............................. Preheairng conference.
608................................... .............................. Prehearing Conference order finalizes
issues for hearing and sets schedule
for prefiled testimony and hearing.
618................................... 2.1015(b)..................... Appeals from Prehearing Conference
Order.
628................................... 2.1015(b)..................... Briefs in opposition to appeals.
658................................... .............................. Commission ruling on appeals from
Prehearing Conference Order.
660................................... .............................. Last practical date for summary
disposition motions.
680................................... .............................. Replies to last practical summary
disposition motions.
690................................... .............................. Discovery complete.
720................................... .............................. Evidentiary hearing begins.
810................................... .............................. Evidentiary hearing ends.
840................................... 2.712(a)(1)................... Applicant's proposed findings.
850................................... 2.712(a)(2)................... Other parties' proposed findings.
855................................... 2.712(a)(3)................... Applicant's reply to other parties'
proposed findings.
955................................... 2.713......................... Initial decision.
965................................... 2.341(a), 2.344(a), Stay motion, petition for
2.1015(c)(1). reconsideration, notice of appeal.
975................................... 2.341(d), 2.344(b),........... Other parties' response to stay motion,
petition for reconsideration.
995................................... .............................. Commission ruling on stay motion.
985................................... 2.1015(c)(2).................. Appellant's briefs.
1015.................................. 2.1015(c)(3).................. Appellees' briefs.
1125.................................. .............................. Commission decision.
----------------------------------------------------------------------------------------------------------------

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES

53. The authority citation for Part 50 continues to read as
follows:

Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).

Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101,
185, 68 Stat. 955 as amended (42 U.S.C. 2131, 2235), sec. 102, Pub.
L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd),
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a,
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Section 50.37 also
issued under E.O. 12829, 3 CFR 1993 Comp., p. 570; E.O. 12958, as
amended, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR 1995 Comp., p.
391. Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-
415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under
sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also
issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234).
Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C 2237).

54. In Sec. 50.57, paragraph (c) is revised to read as follows:

Sec. 50.57 Issuance of operating license.

* * * * *
(c) An applicant may, in a case where a hearing is held in
connection with a pending proceeding under this section make a motion
in writing, under this paragraph (c), for an operating license
authorizing low-power testing (operation at not more than 1 percent of
full power for the purpose of testing the facility), and further
operations short of full power operation. Action on such a motion by
the presiding officer shall be taken with due regard to the rights of
the parties to the proceedings, including the right of any party to be
heard to the extent that his contentions are relevant to the activity
to be authorized. Before taking any action on such a motion that any
party opposes, the presiding officer shall make findings on the matters
specified in paragraph (a) of this section as to which there is a
controversy, in the form of an initial decision with respect to the
contested activity sought to be authorized. The Director of Nuclear
Reactor Regulation will make findings on all other matters specified in
paragraph (a) of this section. If no party opposes the motion, the
presiding officer will issue an order under Sec. 2.323 of this chapter,
authorizing the Director of Nuclear Reactor Regulation to make
appropriate findings on the matters specified in paragraph (a) of this
section and to issue a license for the requested operation.
55. In Sec. 50.91, the introductory paragraph, and paragraphs
(a)(4) and (a)(6)(v) are revised to read as follows:

Sec. 50.91 Notice for public comment; State consultation.

The Commission will use the following procedures for an application
requesting an amendment to an operating license for a facility licensed
under Secs. 50.21(b) or 50.22 or for a testing facility, except for
amendments subject to hearings governed by subpart L of this chapter.
For amendments subject to subpart L of this chapter, the following
procedures will apply only to the extent specifically referenced in
Sec. 2.309(b) of this chapter, except that notice of opportunity for
hearing must be published in the Federal Register at least 30 days
before the requested amendment is issued by the Commission:
(a) * * *
(4) Where the Commission makes a final determination that no
significant hazards consideration is involved and that the amendment
should be issued, the amendment will be effective on issuance, even if
adverse public comments have been received and even if an interested
person meeting the provisions for intervention called for in Sec. 2.309
of this chapter has filed a request for a hearing. The Commission need
hold any required hearing only after it issues an amendment, unless it
determines that a significant hazards consideration is involved in
which case the Commission will provide an opportunity for a prior
hearing.
* * * * *
(6) * * *
(v) Will provide a hearing after issuance, if one has been
requested by

[[Page 19667]]

a person who satisfies the provisions for intervention specified in
Sec. 2.309 of this chapter;
* * * * *

PART 51--ENVIRONMENTAL PROTECTION REGULATIONS FOR DOMESTIC
LICENSING AND RELATED REGULATORY FUNCTIONS

56. The authority citation for Part 51 continues to read as
follows:

Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842). Subpart A also issued under National Environmental Policy Act
of 1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42
U.S.C. 4332, 4334, 4335); and Pub. L. 95-604, Title II, 92 Stat.
3033-3041; and sec. 193, Pub. L. 101-575, 104 Stat. 2835 42 U.S.C.
2243). Sections 51.20, 51.30, 51.60, 51.80. and 51.97 also issued
under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec.
148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161,
10168). Section 51.22 also issued under sec. 274, 73 Stat. 688, as
amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear
Waste Policy Act of 1982, sec 121, 96 Stat. 2228 (42 U.S.C. 10141).
Sections 51.43, 51.67, and 51.109 also under Nuclear Waste Policy
Act of 1982, sec 114(f), 96 Stat. 2216, as amended (42 U.S.C.
10134(f)).

57. In Sec. 51.15, paragraph (b) is revised to read as follows:

Sec. 51.15 Time schedules.

* * * * *
(b) As specified in 10 CFR part 2, the presiding officer, the
Atomic Safety and Licensing Appeal Board or the Commissioners acting as
a collegial body may establish a time schedule for all or any part of
an adjudicatory or rulemaking proceeding to the extent that each has
jurisdiction.
58. Section 51.16 is revised to read as follows:

Sec. 51.16 Proprietary information.

(a) Proprietary information, such as trade secrets or privileged or
confidential commercial or financial information, will be treated in
accordance with the procedures provided in Sec. 2.390 of this chapter.
(b) Any proprietary information which a person seeks to have
withheld from public disclosure shall be submitted in accordance with
Sec. 2.390 of this chapter. When submitted, the proprietary information
should be clearly identified and accompanied by a request, containing
detailed reasons and justifications, that the proprietary information
be withheld from public disclosure. A non-proprietary summary
describing the general content of the proprietary information should
also be provided.
59. In Sec. 51.109, paragraph (a)(2) is revised to read as follows:

Sec. 51.109 Public hearings in proceedings for issuance of materials
license with respect to a geologic repository.

(a)(1) * * *
(2) Any other party to the proceeding who contends that it is not
practicable to adopt the DOE environmental impact statement, as it may
have been supplemented, shall file a contention to that effect within
thirty days after the publication of the notice of hearing in the
Federal Register. Such contention must be accompanied by one or more
affidavits which set forth factual and/or technical bases for the claim
that, under the principles set forth in paragraphs (c) and (d) of this
section, it is not practicable to adopt the DOE environmental impact
statement, as it may have been supplemented. The presiding officer
shall resolve disputes concerning adoption of the DOE environmental
impact statement by using, to the extent possible, the criteria and
procedures that are followed in ruling on motions to reopen under
Sec. 2.326 of this chapter.
* * * * *

PART 52--EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND
COMBINED LICENSES FOR NUCLEAR POWER PLANTS

60. The authority citation for Part 52 continues to read:

Authority: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat.
936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as
amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs.
201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C.
5841, 5842, 5846).

61. Section 52.21 is revised to read as follows:

Sec. 52.21 Hearings.

An early site permit is a partial construction permit and is
therefore subject to all procedural requirements in 10 CFR part 2 which
are applicable to construction permits, including the requirements for
docketing in Sec. 2.101(a)(1)-(4), and the requirements for issuance of
a notice of hearing in Secs. 2.104(a), (b)(1)(iv) and (v), (b)(2) to
the extent it runs parallel to (b)(1)(iv) and (v), and (b)(3), provided
that the designated sections may not be construed to require that the
environmental report or draft or final environmental impact statement
include an assessment of the benefits of the proposed action. In the
hearing, the presiding officer shall also determine whether, taking
into consideration the site criteria contained in 10 CFR part 100, a
reactor, or reactors, having characteristics that fall within the
parameters for the site can be constructed and operated without undue
risk to the health and safety of the public. All hearings conducted on
applications for early site permits filed under this part are governed
by the procedures contained in subparts C, G and L of part 2 of this
chapter.
62. In Sec. 52.29, paragraph (b) is revised to read as follows:

Sec. 52.29 Application for renewal.

* * * * *
(b) Any person whose interests may be affected by renewal of the
permit may request a hearing on the application for renewal. The
request for a hearing must comply with 10 CFR 2.309. If a hearing is
granted, notice of the hearing will be published in accordance with 10
CFR 2.309.
* * * * *
63. In Sec. 52.39, paragraph (a)(2)(ii) is revised to read as
follows:

Sec. 52.39 Finality of early site permit determinations.

(a) * * *
(2) * * *
(ii) A petition alleging that the site is not in compliance with
the terms of the early site permit must include, or clearly reference,
official NRC documents, documents prepared by or for the permit holder,
or evidence admissible in a proceeding under subparts C, G and L of 10
CFR part 2, which show, prima facie, that the acceptance criteria have
not been met. The permit holder and NRC staff may file answers to the
petition within the time specified in 10 CFR 2.323 for answers to
motions by parties and staff. If the Commission, in its judgment,
decides, on the basis of the petitions and any answers thereto, that
the petition meets the requirements of this paragraph, that the issues
are not exempt from adjudication under 5 U.S.C. 554(a)(3), that genuine
issues of material fact are raised, and that settlement or other
informal resolution of the issues is not possible, then the genuine
issues of material fact raised by the petition must be resolved in
accordance with the provisions in 5 U.S.C. 554, 556, and 557 which are
applicable to determining application for initial licenses.
* * * * *
64. In Sec. 52.43, paragraph (b) is revised to read as follows:

[[Page 19668]]

Sec. 52.43 Relationship to Appendices M, N, and O of this part.

* * * * *
(b) Appendix O governs the NRC staff review and approval of
preliminary and final standard designs. A NRC staff approval under
Appendix O in no way affects the authority of the Commission or the
presiding officer in any proceeding under 10 CFR part 2. Subpart B of
this part 52 governs Commission approval, or certification, of standard
designs by rulemaking.
* * * * *
65. In Sec. 52.51, paragraphs (b) and (c) are revised to read as
follows:

Sec. 52.51 Administrative review of applications.

* * * * *
(b) The rulemaking procedures must provide for notice and comment
and an opportunity for an informal hearing under subparts C and L
before an Atomic Safety and Licensing Board. The procedures for the
informal hearing must include the opportunity for written presentations
made under oath or affirmation and for oral presentations and
questioning if the Board finds them either necessary for the creation
of an adequate record or the most expeditious way to resolve
controversies. Ordinarily, the questioning in the informal hearing will
be done by members of the Board, using either the Board's questions or
questions submitted to the Board by the parties. The Board may also
request authority from the Commission to use additional procedures,
such as direct and cross examination by the parties, or may request
that the Commission convene a formal hearing under subparts C and G of
10 CFR part 2 on specific and substantial disputes of fact, necessary
for the Commission's decision, that cannot be resolved with sufficient
accuracy except in a formal hearing. The NRC staff will be a party in
the hearing.
(c) The decision in such a hearing will be based only on
information on which all parties have had an opportunity to comment,
either in response to the notice of proposed rulemaking or in the
informal hearing. Notwithstanding anything in 10 CFR 2.390 to the
contrary, proprietary information will be protected in the same manner
and to the same extent as proprietary information submitted in
connection with applications for construction permits and operating
licenses under 10 CFR part 50, provided that the design certification
shall be published in chapter I of this title.
66. In Appendix A to part 52, Section VIII, paragraphs B.5.f., C.3.
and C.5. are revised to read as follows:

Appendix A to Part 52--Design Certification Rule for the U.S.
Advanced Boiling Water Reactor

VIII. Processes for Changes and Departures

* * * * *
B. * * *
5. * * *
f. A party to an adjudicatory proceeding for either the issuance,
amendment, or renewal of a license or for operation under 10 CFR
52.103(a), who believes that an applicant or licensee who references
this appendix has not complied with VIII.B.5 of this appendix when
departing from Tier 2 information, may petition to admit into the
proceeding such a contention. In addition to compliance with the
general requirements of 10 CFR 2.309, the petition must demonstrate
that the departure does not comply with VIII.B.5 of this appendix.
Further, the petition must demonstrate that the change bears on an
asserted noncompliance with an ITAAC acceptance criterion in the case
of a 10 CFR 52.103 preoperational hearing, or that the change bears
directly on the amendment request in the case of a hearing on a license
amendment. Any other party may file a response. If, on the basis of the
petition and any response, the presiding officer determines that a
sufficient showing has been made, the presiding officer shall certify
the matter directly to the Commission for determination of the
admissibility of the contention. The Commission may admit such a
contention if it determines the petition raises a genuine issue of fact
regarding compliance with VIII.B.5 of this appendix.
* * * * *
C. * * *
3. The Commission may require plant-specific departures on generic
technical specifications and other operational requirements that were
completely reviewed and approved, provided a change to a design feature
in the generic DCD is not required and special circumstances as defined
in 10 CFR 2.335 are present. The Commission may modify or supplement
generic technical specifications and other operational requirements
that were not completely reviewed and approved or require additional
technical specifications and other operational requirements on a plant-
specific basis, provided a change to a design feature in the generic
DCD is not required.
* * * * *
5. A party to an adjudicatory proceeding for either the issuance,
amendment, or renewal of a license or for operation under 10 CFR
52.103(a), who believes that an operational requirement approved in the
DCD or a technical specification derived from the generic technical
specifications must be changed may petition to admit into the
proceeding such a contention. Such petition must comply with the
general requirements of 10 CFR 2.309 and must demonstrate why special
circumstances as defined in 10 CFR 2.335 are present, or for compliance
with the Commission's regulations in effect at the time this appendix
was approved, as set forth in Section V of this appendix. Any other
party may file a response thereto. If, on the basis of the petition and
any response, the presiding officer determines that a sufficient
showing has been made, the presiding officer shall certify the matter
directly to the Commission for determination of the admissibility of
the contention. All other issues with respect to the plant-specific
technical specifications or other operational requirements are subject
to a hearing as part of the license proceeding.
* * * * *
67. In Appendix B to part 52, Section VIII, paragraphs B.5.f., C.3.
and C.5. are revised to read as follows:

Appendix B to Part 52--Design Certification Rule for the System 80+
Design

VIII. Processes for Changes and Departures

[[Page 19669]]

certify the matter directly to the Commission for determination of the
admissibility of the contention. The Commission may admit such a
contention if it determines the petition raises a genuine issue of fact
regarding compliance with VIII.B.5 of this appendix.
* * * * *
C. * * *
3. The Commission may require plant-specific departures on generic
technical specifications and other operational requirements that were
completely reviewed and approved, provided a change to a design feature
in the generic DCD is not required and special circumstances as defined
in 10 CFR 2.335 are present. The Commission may modify or supplement
generic technical specifications and other operational requirements
that were not completely reviewed and approved or require additional
technical specifications and other operational requirements on a plant-
specific basis, provided a change to a design feature in the generic
DCD is not required.
* * * * *
5. A party to an adjudicatory proceeding for either the issuance,
amendment, or renewal of a license or for operation under 10 CFR
52.103(a), who believes that an operational requirement approved in the
DCD or a technical specification derived from the generic technical
specifications must be changed may petition to admit into the
proceeding such a contention. Such petition must comply with the
general requirements of 10 CFR 2.309 and must demonstrate why special
circumstances as defined in 10 CFR 2.335 are present, or for compliance
with the Commission's regulations in effect at the time this appendix
was approved, as set forth in Section V of this appendix. Any other
party may file a response thereto. If, on the basis of the petition and
any response, the presiding officer determines that a sufficient
showing has been made, the presiding officer shall certify the matter
directly to the Commission for determination of the admissibility of
the contention. All other issues with respect to the plant-specific
technical specifications or other operational requirements are subject
to a hearing as part of the license proceeding.
* * * * *
68. In Appendix C to part 52, Section VIII, paragraphs B.5.f., C.3.
and C.5. are revised to read as follows:

Appendix C to Part 52--Design Certification Rule for the AP600
Design

VIII. Processes for Changes and Departures

* * * * *
B. * * *
5. * * *
f. A party to an adjudicatory proceeding for either the issuance,
amendment, or renewal of a license or for operation under 10 CFR
52.103(a), who believes that an applicant or licensee who references
this appendix has not complied with VIII.B.5 of this appendix when
departing from Tier 2 information, may petition to admit into the
proceeding such a contention. In addition to compliance with the
general requirements of 10 CFR 2.309, the petition must demonstrate
that the departure does not comply with VIII.B.5 of this appendix.
Further, the petition must demonstrate that the change bears on an
asserted noncompliance with an ITAAC acceptance criterion in the case
of a 10 CFR 52.103 preoperational hearing, or that the change bears
directly on the amendment request in the case of a hearing on a license
amendment. Any other party may file a response. If, on the basis of the
petition and any response, the presiding officer determines that a
sufficient showing has been made, the presiding officer shall certify
the matter directly to the Commission for determination of the
admissibility of the contention. The Commission may admit such a
contention if it determines the petition raises a genuine issue of fact
regarding compliance with VIII.B.5 of this appendix.
* * * * *
C. * * *
3. The Commission may require plant-specific departures on generic
technical specifications and other operational requirements that were
completely reviewed and approved, provided a change to a design feature
in the generic DCD is not required and special circumstances as defined
in 10 CFR 2.335 are present. The Commission may modify or supplement
generic technical specifications and other operational requirements
that were not completely reviewed and approved or require additional
technical specifications and other operational requirements on a plant-
specific basis, provided a change to a design feature in the generic
DCD is not required.
* * * * *
5. A party to an adjudicatory proceeding for either the issuance,
amendment, or renewal of a license or for operation under 10 CFR
52.103(a), who believes that an operational requirement approved in the
DCD or a technical specification derived from the generic technical
specifications must be changed may petition to admit into the
proceeding such a contention. Such petition must comply with the
general requirements of 10 CFR 2.309 and must demonstrate why special
circumstances as defined in 10 CFR 2.335 are present, or for compliance
with the Commission's regulations in effect at the time this appendix
was approved, as set forth in Section V of this appendix. Any other
party may file a response thereto. If, on the basis of the petition and
any response, the presiding officer determines that a sufficient
showing has been made, the presiding officer shall certify the matter
directly to the Commission for determination of the admissibility of
the contention. All other issues with respect to the plant-specific
technical specifications or other operational requirements are subject
to a hearing as part of the license proceeding.
* * * * *
69. In Appendix N to part 52, the three introductory paragraphs are
revised to read as follows:

Appendix N to Part 52--Standardization of Nuclear Power Plant
Designs: Licenses To Construct and Operate Nuclear Power Reactors
of Duplicate Design at Multiple Sites

Section 101 of the Atomic Energy Act of 1954, as amended, and
Sec. 50.10 of this chapter require a Commission license to transfer or
receive in interstate commerce, manufacture, produce, transfer,
acquire, possess, use, import, or export any production or utilization
facility. The regulations in Part 50 of this chapter require the
issuance of a construction permit by the Commission before commencement
of construction of a production or utilization facility, except as
provided in Sec. 50.10(e) of this chapter, and the issuance of an
operating license before the operation of the facility.
The Commission's regulations in Part 2 of this chapter specifically
provide for the holding of hearings on particular issues separately
from other issues involved in hearings in licensing proceedings, and
for the consolidation of adjudicatory proceedings and of the
presentations of parties in adjudicatory proceedings such as licensing
proceedings (Secs. 2.316, 2.317).
This appendix sets out the particular requirements and provisions
applicable to situations in which applications are filed by one or more
applicants for licenses to construct and operate nuclear power reactors
of essentially the

[[Page 19670]]

same design to be located at different sites.
* * * * *
70. In Appendix O to part 52, paragraph 6 is revised to read as
follows:

Appendix O to Part 52--Standardization of Design: Staff Review of
Standard Designs

* * * * *
6. The determination and report by the regulatory staff shall not
constitute a commitment to issue a permit or license, or in any way
affect the authority of the Commission, Atomic Safety and Licensing
Board Panel, and other presiding officers in any proceeding under Part
2 of this chapter.
* * * * *

PART 54--REQUIREMENTS FOR RENEWAL OF OPERATING LICENSES FOR NUCLEAR
POWER PLANTS

71. The authority citation for part 54 continues to read as
follows:

Authority: Secs. 102, 103, 104, 161, 181, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, as amended, sec. 234, 83
Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, 202, 206, 88 Stat. 1242,
1244, as amended (42 U.S.C. 5841, 5842). Section 54.17 also issued
under E.O. 12829, 3 CFR, 1993 Comp., p. 570; E.O. 12958, as amended,
3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR, 1995 Comp., p. 391.

72. In Sec. 54.29, paragraph (c) is revised to read as follows:

Sec. 54.29 Standards for issuance of a renewed license.

* * * * *
(c) Any matters raised under Sec. 2.355 have been addressed.

PART 60--DISPOSAL OF HIGH LEVEL WASTE IN GEOLOGICAL REPOSITORIES

73. The authority citation for part 60 continues to read as
follows:

Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071,
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.
95-01, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2228, as amended (42 U.S.C. 10134, 10141), and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851).

74. In Sec. 60.63, paragraph (a) is revised to read as follows:

Sec. 60.63 Participation in license reviews.

(a) State and local governments and affected Indian Tribes may
participate in license reviews as provided in subpart C of part 2 of
this chapter. A State in which a repository for high-level radioactive
waste is proposed to be located and any affected Indian Tribe shall
have an unquestionable legal right to participate as a party in such
proceedings.
* * * * *

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

75. The authority citation for part 70 continues to read as
follows:

Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended,
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243).
Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec.
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42
U.S.C. 2234). Section 70.81 also issued under secs. 186, 187, 68
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.82 also issued under
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

76. Section 70.23a is revised to read as follows:

Sec. 70.23a Hearing required for uranium enrichment facility.

The Commission will hold a hearing under 10 CFR part 2, subparts A,
C, G, and I, on each application for issuance of a license for
construction and operation of a uranium enrichment facility. The
Commission will publish public notice of the hearing in the Federal
Register at least 30 days before the hearing.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

77. The authority citation for part 73 continues to read as
follows:

Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat.
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f). Section 73.1 also
issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42
U.S.C, 10155, 10161). Section 73.37(f) also issued under sec. 301,
Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is
issued under sec. 606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C.
2169).

78. In Sec. 73.21, paragraph (c)(1)(vi) is revised to read as
follows:

Sec. 73.21 Requirements for the protection of safeguards information.

* * * * *
(c) * * *
(1) * * *
(vi) An individual to whom disclosure is ordered under
Sec. 2.709(e) of this chapter.
* * * * *

PART 75--SAFEGUARDS ON NUCLEAR MATERIAL--IMPLEMENTATION OF US/IAEA
AGREEMENT

79. The authority citation for part 75 continues to read as
follows:

Authority: Secs. 53, 63, 103, 104, 122, 161, 68 Stat. 930, 932,
936, 937, 939, 948, as amended (42 U.S.C. 2073, 2093, 2133, 2134,
2152, 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
Section 75.4 also issued under secs. 135, 141, Pub. L. 97-425,
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).

80. In Sec. 75.12, paragraph (c) is revised to read as follows:

Sec. 75.12 Communication of information to IAEA.

* * * * *
(c) A request made under Sec. 2.390(b) of this chapter will not be
treated as a request under this section unless the application makes
specific reference to this section, nor shall a determination to
withhold information from public disclosure necessarily require a
determination that this information not be transmitted physically to
the IAEA.
* * * * *

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

81. The authority citation for part 76 continues to read as
follows:

Authority: Secs. 161, 68 Stat. 948, as amended, secs. 1312,
1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-
349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204,
206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846).
Sec 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat.
1321, 1321-349 (42 U.S.C. 2243(a)).
Sec. 76.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat
2951 (42 U.S.C. 5851). Sec. 76.22 is also issued under sec. 193(f),
as amended, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat.
1321, 1321-349 (42 U.S.C. 2243(f)). Sec. 76.35(j) also issued under
sec. 122, 68 Stat. 939 (42 U.S.C. 2152).

82. In Sec. 76.41, paragraph (b) is revised to read as follows:

Sec. 76.41 Record underlying decision.

* * * * *

[[Page 19671]]

(b) All public comments and correspondence in any proceeding
regarding an application for a certificate must be made a part of the
public docket of the proceeding, except as provided under 10 CFR 2.390.
83. In Sec. 76.70, paragraph (c)(2)(v) is revised to read as
follows:

Sec. 76.70 Post-issuance.

* * * * *
(c) * * *
(2) * * *
(v) Provide that the Commission may make a final decision after
consideration of the written submissions or may in its discretion adopt
by order, upon the Commission's own initiative or at the request of the
Corporation or an interested person, further procedures for a hearing
of the issues before making a final enforcement decision. These
procedures may include requirements for further participation in the
proceeding, such as the requirements for intervention under part 2,
subparts C, G or L of this chapter. Submission of written comments by
interested persons do not constitute entitlement to further
participation in the proceeding. Further procedures will not normally
be provided for at the request of an interested person unless the
person is adversely affected by the order.
* * * * *
84. In Sec. 76.72, paragraphs (a), (b), (c), and (d) are revised to
read as follows:

Sec. 76.72 Miscellaneous procedural matters.

(a) The filing of any petitions for review or any responses to
these petitions are governed by the procedural requirements set forth
in 10 CFR 2.302(a) and (c), 2.304, 2.306, 2.307, and 2.305. Additional
guidance regarding the filing and service of petitions for review of
the Director's decision and responses to these petitions may be
provided in the Director's decision or by order of the Commission.
(b) The Secretary of the Commission has the authority to rule on
procedural matters set forth in 10 CFR 2.345.
(c) There are no restrictions on ex parte communications or on the
ability of the NRC staff and the Commission to communicate with one
another at any stage of the regulatory process, with the exception that
the rules on ex parte communications and separation of functions set
forth in 10 CFR 2.346 and 2.347 apply to proceedings under 10 CFR part
2 for imposition of a civil penalty.
(d) The procedures set forth in 10 CFR 2.205, and in 10 CFR part 2,
subparts C and G, will be applied in connection with NRC action to
impose a civil penalty pursuant to section 234 of the Atomic Energy Act
of 1954, as amended, or section 206 of the Energy Reorganization Act of
1974 and the implementing regulations in 10 CFR part 21 (Reporting of
Defects and Noncompliance), as authorized by section 1312(e) of the
Atomic Energy Act of 1954, as amended.
* * * * *

PART 110--EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL

85. The authority citation for Part 110 continues to read as
follows:

Authority: Secs. 51, 53, 54, 57, 63, 64, 65, 81, 82, 103, 104,
109, 111, 126, 127, 128, 129, 161, 181, 182, 183, 187, 189, 68 Stat.
929, 930, 931, 932, 933, 936, 937, 948, 953, 954, 955, 956, as
amended (42 U.S.C. 2071, 2073, 2074, 2077, 2092-2095, 2111, 2112,
2133, 2134, 2139, 2139a, 2141, 2154-2158, 2201, 2231-2233, 2237,
2239); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec 5,
Pub. L. 101-575, 104 Stat 2835 (42 U.S.C. 2243).
Sections 110.1(b)(2) and 110.1(b)(3) also issued under Pub. L.
96-92, 93 Stat. 710 (22 U.S.C. 2403). Section 110.11 also issued
under sec. 122, 68 Stat. 939 (42 U.S.C. 2152) and secs. 54c and
57d., 88 Stat. 473, 475 (42 U.S.C. 2074). Section 110.27 also issued
under sec. 309(a), Pub. L. 99-440. Section 110.50(b)(3) also issued
under sec. 123, 92 Stat. 142 (42 U.S.C. 2153). Section 110.51 also
issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234).
Section 110.52 also issued under sec. 186, 68 Stat. 955 (42 U.S.C.
2236). Sections 110.80-110.113 also issued under 5 U.S.C. 552, 554.
Sections 110.130-110.135 also issued under 5 U.S.C. 553. Sections
110.2 and 110.42(a)(9) also issued under sec. 903, Pub. L. 102-496
(42 U.S.C. 2151 et seq.).

86. In Sec. 110.73, paragraph (b) is revised to read as follows:

Sec. 110.73 Availability of NRC records.

* * * * *
(b) Proprietary information provided under this part may be
protected under part 9 and Sec. 2.390(b), (c), and (d) of this chapter.

Dated at Rockville, Maryland, this 5th day of April, 2001.

For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 01-8886 Filed 4-13-01; 8:45 am]
BILLING CODE 7590-01-P

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