Changes to Adjudicatory Process

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[Federal Register: January 14, 2004 (Volume 69, Number 9)]
[Rules and Regulations]
[Page 2181-2282]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja04-8]

[[Page 2181]]

Part II

Nuclear Regulatory Commission

10 CFR Parts 1, 2, 50, et al.

Changes to Adjudicatory Process; Final Rule

[[Page 2182]]

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 1, 2, 50, 51, 52, 54, 60, 63, 70, 72, 73, 75, 76, and
110

RIN 3150-AG49

Changes to Adjudicatory Process

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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

DATES: This final rule is effective February 13, 2004. The rules of
procedure in the final rule apply to proceedings noticed on or after
the effective date, unless otherwise directed by the Commission.

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:

Contents

I. Background.
A. Policy Statement.
B. Reexamination of NRC's Hearing Process.
C. Comments on Policy Statement.
D. Comments from Hearing Process Workshop.
II. Discussion of the Final Rule.
A. Resolution of Public Comments on Proposed Rule; Bases for
Final Rule.
1. Overview of Public Comments on Proposed Rule.
2. Significant Comments and Issues, and Their Resolution in
Final Rule.
(a) Overall Organization of Part 2.
(b) Commission Response to Eight General Questions in Proposed
Rule.
(c) Introductory provisions.
(d) Subpart A.
(e) Subpart B
(f) Subpart C.
(g) Subpart G.
(h) Subpart I.
(i) Subpart J.
(j) Subpart K.
(k) Subpart L.
(l) Subpart M.
(m) Subpart N.
(n) Subpart O.
(o) Part 60.
B. Section-by-Section Analysis.
1. Implementation of Rule.
2. Introductory provisions--Sections 2.1-2.8.
3. Subpart A--Sections 2.100-2.111.
4. Subpart B--Sections 2.200-2.206.
5. Subpart C--Sections 2.300-2.348, 2.390.
6. Subpart G--Sections 2.700-2.713.
7. Subpart I.--Sections 2.900-2.913.
8. Subpart J.--Sections 2.1000-2.1027.
9. Subpart K.--Sections 2.1101-2.119.
10. Subpart L--Sections 2.1200-2.1213.
11. Subpart M.--Sections 2.1300-2.1331.
12. Subpart N--Sections 2.1400-2.1407.
13. Subpart O--Sections 2.1500-2.1509.
III. Availability of Documents.
IV. Voluntary Consensus Standards.
V. Environmental Impact: Categorical Exclusion.
VI. Paperwork Reduction Act Statement.
VII. Regulatory Analysis.
VIII. Regulatory Flexibility Certification.
IX. Backfit Analysis.

I. Background

Among the very first actions taken by the Nuclear Regulatory
Commission (NRC) following its creation in 1975 was an affirmation of
the fundamental importance it attributes to public participation in the
Commission's adjudicatory processes. 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.'' N. States Power Co. (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 adjudicatory
(hearing) process in 10 CFR part 2, subpart G, associated with
licensing and enforcement actions, 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 the full panoply of formal, trial-like
adjudicatory procedures in subpart G is not essential to the
development of an adequate hearing record; yet all too frequently their
use resulted in protracted, costly proceedings. The Commission adopted
more informal procedures with the goals of reducing the burden of
litigation costs, and enhancing 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 more
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 more informal procedures that
have continued to prolong proceedings without truly enhancing the
decisionmaking process. Given the Commission's experience, and with the
potential in the next few years for new proceedings 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 processes to identify improvements that will
result in a better use of all participants' limited resources. To that
end, the Commission initiated certain 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 of 1954, as amended (AEA)--as a foundation for
possible rule changes.

A. Policy Statement

In 1998, the Commission adopted a new Policy Statement that
provides specific guidance for Licensing Boards

[[Page 2183]]

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; Aug. 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 27,
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 1998 Policy Statement urges presiding
officers/Licensing Boards to establish schedules for deciding issues
before them. It also reminds presiding officers/Licensing Boards of
their authority to set schedules, resolve discovery disputes, and take
other action required to regulate the course of the proceedings. Case
management by the presiding officers and Licensing 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 set 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/Licensing 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) (Sec.
2.309(f) in this final rule), 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 AEA 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 AEA
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 rights of participants. 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 oral presentations by witnesses and cross-examination.
The key, statutory provision, Section 189.a. of the AEA, 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. Furthermore, the
legislative history for the AEA provides no clear guidance whether
Congress intended agency hearings to be formal, on-the-record
hearings.\1\ 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. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973).
Significantly, these Supreme Court decisions occurred more than fifteen
years after the period where the Atomic Energy Commission (AEC) first
enunciated its position on the hearing requirements in Section 189.a.
---------------------------------------------------------------------------

\1\ A detailed discussion of Section 189 and its legislative
history can be found in the Commission's decision in Kerr McGee
Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232
(1982). See also Advanced Med. Sys., Inc., ALAB-929, 31 NRC 271,
279-288 (1990).
---------------------------------------------------------------------------

The AEC of the 1950s asserted that formal hearings were required by
Section 189.a. 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 satisfactory 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 2 Improving the AEC Regulatory Process, Joint Comm. on Atomic
Energy, 87th Cong., at 488 (1st Sess. 1961). Thus, notwithstanding the
lack of explicit language in the statute or clear direction in the
legislative history for the 1954 AEA regarding the use of formal, on-
the-record hearings, AEC took the official position that on-the-record
hearings were not merely permissible under the AEA but required. AEC
Regulatory Problems: Hearings before the Subcommittee on Legislation,
Joint Committee on Atomic Energy, 87th Cong., at 60 (2d Sess. 1962)
(Letter of AEC Commissioner Loren K. Olsen). However, as mentioned
above, the AEC's determination in this regard was not informed by the
subsequent Supreme Court decisions in Allegheny-Ludlum Steel Corp. and
Florida East Coast Railway Co. The Commission believes, in light of the
principles enunciated by the Supreme Court in these two decisions, that
the better interpretation of Section 189.a. is that formal, on-the-
record hearings are not required by that section.
However, it has been argued that two subsequent amendments to the
AEA, both of which involve clauses beginning with the word
``notwithstanding,'' should be read as confirming Congress's
understanding that on-the-record adjudications are required by Section
189.a. of the 1954 Act. The first occurred in 1962, when Congress
amended the AEA 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 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

[[Page 2184]]

requiring on-the-record adjudication. The crux of the argument is that
the ``notwithstanding'' clause would have been unnecessary if an on-
the-record adjudication was not mandatory.
In 1978, ``notwithstanding'' made its second appearance. 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 section 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). Again, the argument is that the ``notwithstanding'' clause
would be unnecessary unless Congress thought on-the-record formal
hearings would be called for by Section 189 of the AEA.
These two subsequent statutes do not explicitly declare the intent
of the 1954 AEA, nor do they explicitly require the use of on-the-
record procedures in agency proceedings--in fact, they do the opposite.
Furthermore, the legislative history accompanying both statutes
strongly suggests that rather than agreeing with the Commission's early
interpretation of Section 189.a. of the 1954 AEA, the Congresses took
the position that the Commission had latitude under the existing
language of Section 189.a. to use informal hearing procedures.\2\ Seen
in this light, 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, to counter and eliminate potential legal
objections to the use of informal hearing procedures that may be raised
by the Commission. 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,
given the Commission's insistence that Section 189.a. required on-the-
record adjudications.
---------------------------------------------------------------------------

\2\ See, e.g., H.R. Rep. No. 87-1966, at 6 (1962), quoted in
Kerr McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982).
---------------------------------------------------------------------------

In any event, the Commission believes that to focus on Congress's
thought processes in 1962, when it enacted Section 191 of the AEA, and
in 1978, when it passed the NNPA, 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 189.a. of the AEA. And, as discussed earlier, the
Commission now believes that in 1954 Congress did not intend Section
189.a. hearings to be formal, on-the-record adjudications.
For many years, the NRC did not depart from the longstanding
assumption that the AEA 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 189.a., 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 (HLW) would be a formal hearing. In a final rule (46 FR 13971;
Feb. 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 HLW 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 HLW 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.'' \3\ This provision can be interpreted in one
of two ways: either as one more 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
APA.
---------------------------------------------------------------------------

\3\ Atomic Energy Act of 1954, as amended, Section 193, 42
U.S.C. 2243.
---------------------------------------------------------------------------

In the decades since passage of the AEA, debate over the value of
on-the-record adjudication for the resolution of nuclear licensing
issues, and indeed for resolving scientific issues generally, has
continued. 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 fewer 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, at 39 (Dec. 1995).
However, because of the early interpretation that formal, on-the-
record hearings under subpart G were required, as well as NRC's long-
standing practice of conducting hearings on reactor licensing actions
under subpart G, each time that NRC has explored ways of expanding the
use of more informal hearing procedures, 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 AEA 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 (DC Cir.
1984), cert. denied, 469 U.S. 1132 (1984) [UCS 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 (DC Cir. 1990) (``it is an open
question whether Section 189(a)--which mandates only that a `hearing'
be held and does not provide that such 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 (DC 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 (DC 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).

[[Page 2185]]

In Chemical Waste Management v. EPA, 873 F.2d 1477, 1480 (DC Cir.
1989), the DC Circuit stated that while the presence of the words ``on-
the-record'' is 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 189.a of the AEA might be a case where
``exceptional circumstances'' dictate formal, on-the-record hearing
requirements, that observation has its roots in a dictum in UCS I which
suggests that in 1961 ``the AEC specifically requested Congress to
relieve it of its burden of `on-the-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. 87-1966, 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, 515 U.S. 1159 (1995), the court emphasized the NRC's
latitude to determine the nature of the ``hearing'' mandated by the
AEA.
The Commission's approach to expanding the use of more informal
hearing procedures 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., written submissions
only) on an amendment to a materials license. In doing so, it observed
that the AEA 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 AEA 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; Feb. 28, 1989). In
Section 134 of the Nuclear Waste Policy Act of 1982, 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; Oct. 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 AEA 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 10 CFR part 52, which provided for issuance of
design certifications and ``combined licenses'' for construction and
operation of nuclear power plants (54 FR 15386; Apr. 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 DC 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 Info. & Res. Serv. v.
NRC, 918 F.2d 189 (DC Cir. 1990), vacated & rehearing en banc granted,
928 F.2d 465 (DC Cir. 1991). However, the decision was later vacated by
the entire DC Circuit, sitting en banc. Nuclear Information and
Resource Service v. NRC, 969 F.2d 1169 (DC Cir. 1992). In its brief to
the full court, the NRC argued unequivocally that AEA'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.
The Commission has taken two more steps to further stake out its
position that the AEA 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 attorneys' 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 APA 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 attorneys' 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 did not provide for formal proceedings.

[[Page 2186]]

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 conducted a facilitated public
meeting with stakeholders representing the industry, citizen 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 received a number of public comments on its 1998 Policy
Statement on the conduct of adjudicatory proceedings (63 FR 41872; Aug.
5, 1998). The NRC is taking this opportunity to address those comments
as part of this final 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 intervener 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. Under the Commission's existing procedures, as carried
forward into this final rule, Sec. 2.319 of the final rule (formerly
Sec. 2.718) provides the presiding officer the power to regulate the
course of the proceeding. In addition, under Sec. 2.307 of the final
rule (formerly Sec. 2.711) a presiding officer may shorten or lengthen
the time required for filings for good cause. This provision expressly
allows a presiding officer 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 intervener groups with limited resources.
Response. The Commission recognizes that, in some instances, the
use of multiple Licensing Boards to address multiple separate issues in
a single proceeding 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 codifying 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 presiding officer (including 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
under Sec. 2.340(a) of the final rule. Some issues raised by a
presiding officer sua sponte may be addressed appropriately through
adjudications, while others may not. In fact, the Commission has a
process for considering the presiding officer'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. This final rule does not
represent a significant departure from its longstanding regulation, 10
CFR 2.760a (now codified in this final rule at Sec. 2.340).
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 or distracting other
parties and the presiding officer from their preparation for a
scheduled hearing. 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 presiding
officer (including a 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 presiding officers the flexibility to make that
determination in most proceedings. To further ensure that summary
disposition motions are filed and ruled upon in a timely manner that
does not detract from preparation for the oral hearing, the Commission
is adopting in Sec. 2.710 of the final rule additional requirements on
the timing, consideration, and

[[Page 2187]]

decisions on summary disposition motions.
Comment. The limitation of discovery on the NRC staff until after
the Safety Evaluation Report (SER) and final Environmental Impact
Statement (EIS) 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 should be
the adequacy of the applicant's/licensee's proposal. Nevertheless, the
Commission 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 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 SER and
the final EIS are issued as it could delay the proceedings.
Response. In 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 some issues until these documents have been completed. This may be
the case in particular with regard to the NRC staff's environmental
evaluation, less so with regard to the staff's safety evaluation. In
many cases, it could 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.
Nonetheless, the Commission recognizes that where the NRC staff is
a party, the staff could prepare testimony and evidence, and take a
final position on contested matters if its safety review has been
completed in areas relevant to the contested matters. The Commission
also recognizes that the current regulations governing submission of
the SER and/or EIS are not clear and could be misleading. To address
these matters, the Commission is taking a number of actions which are
described below in II.A.2.(f) in the discussion of Sec. 2.337.
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 this final rule nor the superseded provisions of
part 2 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 final rule does place limitations on cross-
examination for the less formal procedures. Under these procedures, the
presiding officer may question witnesses who testify at the hearing,
but parties normally may not do so. However, parties may submit to the
presiding officer written suggestions for questions to be asked. The
final rule also allows motions to the presiding officer to allow cross-
examination by the parties where the party believes this would be
necessary to develop an adequate record. As a general matter, the
presiding officer may limit and control cross-examination in
appropriate circumstances, under Sec. 2.333 of the final rule. Among
other things, the final rule requires the filing and use of cross-
examination plans whenever a party cross-examines witnesses.
Comment. The Commission should be actively involved in overseeing
proceedings and there should be expedited interlocutory review for
novel legal or policy issues.
Response. Providing for a Commission ruling on significant issues
before the hearing is completed can focus the issues to be addressed in
a hearing, and the final rule provides for presiding officer
certification of novel legal or policy issues to the Commission.
However, the Commission believes that the additional delay necessarily
associated with interlocutory appeals by parties outweighs any
potential reduction in hearing time that may come about through a
Commission decision in such an appeal, unless a party seeking
interlocutory review can also demonstrate that it would be threatened
with immediate and serious irreparable harm, or if the basic structure
of the proceeding would be affected in a pervasive or unusual manner.
Accordingly, the Commission has decided that it should not depart from
existing practice by permitting interlocutory appeals by parties 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
adjudicatory 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 presiding
officers (including Licensing Boards) to issue timely decisions
consistent with presiding officers' independent decisionmaking
functions. Section 2.334(b) of the final rule explicitly addresses case
management and would require the presiding officers 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 presiding officers with respect to case
management is not intended to intrude on the independence of presiding
officers in discharging their decisionmaking responsibilities.

D. Comments From Hearing Process Workshop

The October 26-27, 1999, hearing process workshop involved
participants from the nuclear industry, states, citizen

[[Page 2188]]

groups, the academic community, administrative judge community, and the
NRC. Transcripts from the workshop are available in NRC's Public
Document Room, and are available for download on the NRC Web Page, at
http://ruleforum.llnl.gov/cgi- bin/library?source=*&library =CAP--

PRULE-- lib&file=*. 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. Using less formal hearing
processes 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
for all participants.
In the final rule, well-supported, specific contentions will be
required in all proceedings, just as they are now required under the
Commission's formal hearing procedures. See Sec. 2.309(f). 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 affect 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 the final rule, early document disclosure and witness
identification will be required of all parties (except the NRC staff)
in every case. See Sec. Sec. 2.336, 2.704. In proceedings using
hearing procedures other than Subparts G and J, no other discovery
would be permitted. This approach should reduce the burden 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. In
Subparts G, L, and N, the NRC staff is required to prepare a hearing
file. In Subpart J proceedings, the NRC staff is required to maintain
an electronic docket, and all potential parties are required to
participate in the Licensing Support Network (LSN), which will afford
access to all relevant documents. In sum, the Commission believes that
in all hearing tracks the parties will have sufficient information
available to prepare their cases.
Under the final rule, cross-examination is retained for Subpart G
hearings. By contrast, in informal hearings, only the presiding officer
will question witnesses. Nevertheless, the informal procedures allow
the parties to suggest questions for the presiding officer to ask, and
they permit motions to allow the parties themselves to cross-examine
witnesses. The presiding officer may grant the motion if he or she
believes that such cross-examination is necessary to develop an
adequate record for decision. This should ensure that there is
questioning of witnesses sufficient to develop an adequate record.
However, the Commission expects that the use of cross-examination in
Subparts L, M or N proceedings will be rare.
Comment. Some participants raised concerns regarding case
management practices by the Licensing Boards. One concern 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 (FES) 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 final
rule. The Commission has modified the intervention requirements in
Subpart L to require the submission of specific, well-supported
contentions as is currently required for hearings held under Subpart G.
This should result in hearings that focus on well-defined issues and
obviate the need to receive evidence of questionable relevance. The
Commission also modified the less formal hearing procedures in Part 2
in a manner that should reduce the amount of motion practice over what
hearing procedures to use. As noted earlier, the Commission is also
taking a number of actions (described below in II.A.2.(f) in the
discussion of Sec. 2.337) to ensure timely preparation of NRC staff
testimony and evidence, and to clarify the NRC documents which must be
admitted into evidence in different proceedings conducted under Part 2.
Comment: One of the attributes of the current 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 validity of any particular matter.
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 asserted that cross-examination
must be used in enforcement hearings. Other licensee representatives
suggested that certain proceedings such as those 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 final rule provides for cross-examination by the
parties in proceedings that warrant the use of Subpart G hearing
procedures. Other NRC proceedings will utilize 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. See
Sec. Sec. 2.1207, 2.1204(b), 2.1405, 2.1402(c). Nonetheless, these
latter proceedings involve questioning of witnesses by the presiding
officer in response to lines of questioning proposed by parties, and
cross-examination by the parties themselves only where the presiding
officer determines that it 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, and is consistent
with the requirements of the Administrative Procedure Act (APA), which
does not require cross-examination for on-the-record proceedings unless
necessary for a ``fair and true disclosure of the facts.'' 5 U.S.C.
556(d).
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 all of the

[[Page 2189]]

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 judge participant was that
the NRC model its discovery rules on Rule 26 of the Federal Rules of
Civil Procedure.
Response. The final rule provides that in all adjudicatory
proceedings (whether formal or informal), the parties must exchange
relevant documents and other information at the beginning of the
proceeding. See Sec. Sec. 2.336, 2.704. Parties other than NRC staff
are also required to exchange the identity of expert witnesses,\4\ as
well as existing reports of their opinions. The ``mandatory
disclosure'' concept is expanded in subpart J by requiring the NRC and
potential parties to disclose pertinent documents by participating in
the ``Licensing Support Network'' (LSN) before an application is filed.
In addition, under subparts G, L, and N the NRC staff is required to
prepare, make available, and update a ``hearing file'' consisting of
the application and any amendments, NRC safety and environmental
reports relating to the application, and any correspondence between the
NRC and the applicant that is relevant to the application. A parallel
concept is provided in subpart J by the requirement for the NRC staff
to maintain an ``electronic docket.'' Thus, the mandatory disclosure
requirement in subpart C, the hearing file provision in subparts G, L,
and N the requirement for an LSN and ``electronic docket'' in subpart
J, go well beyond the ``discovery'' provisions for full, on-the-record
adjudicatory hearings under the APA. See 5 U.S.C. 554 and 556(c).
Moreover, formal discovery tools, e.g., interrogatories and
depositions, remain for proceedings conducted under subparts G and J.
See, e.g., Sec. Sec. 2.702 through 2.709 (subpart G), Sec. 2.1000
(subpart J).
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\4\ Although in proceedings other than those under Subparts G
and J, no further discovery will be permitted after the required
disclosures, the identity of expert witnesses will allow the parties
to conduct research on, and formulate challenges to the expertise
and credibility of the identified witnesses.
---------------------------------------------------------------------------

The Commission also encourages members of the public (including
States, local governmental bodies, and Federally-recognized Indian
Tribes) to attend meetings between the NRC staff and the applicant,
both before and after a license application is submitted, and to review
NRC staff-prepared meeting summaries. These meetings are noticed in
advance and are, with limited exceptions to protect proprietary,
sensitive financial and safeguards information, open to all to observe.
If practical, teleconferencing access to meetings where the meeting
site is not easily accessible to interested persons is provided upon
request. Depending upon the nature of the meeting, the public is
provided an opportunity to either ask questions of the NRC staff, or
participate in a discussion of regulatory issues at designated points
in the meeting. Meeting summaries prepared by the NRC staff are placed
in the docket file for the application and are available through the
NRC Web site and in the Public Document Room.\5\ Public attendance at
these meetings and review of the meeting summaries should provide
individuals or groups early access to information so that they may
participate more effectively in the hearing process. This may also
reduce the number of issues that must be adjudicated.
---------------------------------------------------------------------------

\5\ These meeting procedures are consistent with the
Commission's direction in its January 8, 2002 Staff Requirements
Memorandum (ADAMS Acession No. ML020080358), which approved the NRC
staff's proposals for enhancing public participation in NRC meetings
as described in SECY-01-0137 (July 25, 2001, ADAMS Accession No.
ML012070084).
---------------------------------------------------------------------------

In sum, the Commission believes that its current policy on public
meetings, broad public access to information, mandatory disclosures
under Subpart C, the requirement for a hearing file under Subparts G, L
and N, the requirement for an LSN and ``electronic docket'' under
Subpart J, and the availability of the full panoply of formal, trial-
like discovery under Subpart G, together constitute a system for
discovery which is tailored to the regulatory and licensing matters
which must be resolved in NRC adjudicatory proceedings.
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 final 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 is codifying the
six 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): (1) The extent
to which the requestor's/petitioner's participation may reasonably be
expected to assist in developing a sound record; (2) the nature and
extent of the requestor's/petitioner's property, financial or other
interests in the proceeding; (3) the possible effect of any decision or
order that may be issued in the proceeding on the requestor's/
petitioner's interests; (4) the availability of other means for
protecting the interests of the requestor/petitioner; (5) the extent to
which the requestor's/petitioner's interests will be represented by
existing parties; and (6) the extent to which the requestor's/
petitioner's participation will inappropriately broaden the issues or
delay the proceeding. See Sec. 2.309(e). Discretionary intervention,
however, will not be allowed unless at least one other petitioner has
established standing and at least one admissible contention.
Comment. Citizen group representatives stated that the NRC should
return to its pre-1989 contention standards. Some of these participants
asserted 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.
Response. The NRC believes that the contention standard in Sec.
2.309(f) is appropriate. The threshold standard is necessary to ensure
that hearings cover only genuine and pertinent issues of

[[Page 2190]]

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. The contention standard has been in effect
for more than ten years and has been effective in focusing litigation
on real issues. The contention standard does not contemplate a
determination of the merits of a proffered contention. Ample
information is provided in the application and related documents to
allow the formulation and support of real, concrete issues.
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. One participant noted that 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 adjudicatory proceedings. Public Law 102-
377, Title V, section 502, 106 Stat. 1342 (1992) (codified as amended
at 5 U.S.C. 504). Therefore, the final rule does not provide for
assistance to intervenors.

II. Discussion of the Final Rule

A. Resolution of Public Comments on Proposed Rule; Bases for Final Rule

1. Overview of Public Comments on Proposed Rule
The public comment period for the proposed rule closed on September
14, 2001.\6\ As of January 8, 2002, the NRC had received a total of
1,431\7\ public comments on the proposed rule from individuals, citizen
groups and the industry. In total, 1,422 comments generally opposed the
proposed rulemaking, while nine (9) comments favored NRC's efforts. Of
the 1,431 comments received, twenty-two (22) were substantive, with
fifteen (15) opposing and seven (7) in support of the proposed rule.
The vast majority of the 1,422 comments opposing the rule were
postcards submitted by private citizens. Of the fifteen (15)
substantive comments opposing the rule, eight (8) were from citizen
groups, including the Nuclear Information and Resource Service (NIRS),
Public Citizen--Critical Mass Energy and Environment Program, the
Massachusetts Citizens for Safe Energy, Ohio Citizens for Responsible
Energy (OCRE), and the Project on Government Oversight. The National
Whistleblower Center and the Committee for Safety at Plant Zion filed a
joint comment. A collection of seventy-six (76) citizen groups, from
the Alliance For a Clean Environment to the Women's International
League for Peace and Freedom/Tucson, filed a joint comment by their
representative (Jonathan Block). The remaining substantive comments
opposing the rule were from individuals, including several unaffiliated
individuals (Phillip Greenberg, Carlo Popolizio, and Kurt Wilner), a
self-described pro se petitioner (Sarah M. Fields), and a political
science professor (Kenneth A. Dahlberg). The seven (7) substantive
comments supporting the proposed rulemaking were provided by a group
representing the nuclear industry (Nuclear Energy Institute (NEI)),
three (3) law firms representing three (3) groups of utilities (Morgan,
Lewis &Bockius; Shaw Pittman; and Winston & Strawn), three (3)
utilities (Florida Power and Light; and Virginia Electric Power Co.
jointly with Dominion Nuclear Connecticut), and the National Mining
Association (NMA).
---------------------------------------------------------------------------

\6\ The original comment period for the proposed rule expired on
July 16, 2001 (66 FR 19610; Apr. 16, 2001). In response to several
requests, the comment period was extended until September 14, 2001
(66 FR 27045; May 16, 2001).
\7\ Over 1200 comments were received in the form of postcards
printed with an identical message opposing the proposed rule. Where
an individual submitted more than one of these postcards under the
same signature, this was treated as a single comment, for purposes
of determining the total number of comments received. Thus, the
tally of 1,431 comments does not reflect the additional identical
postcards filed by the same individual.
---------------------------------------------------------------------------

2. Significant Comments and Issues, and Their Resolution in Final Rule
After consideration of the public comments received on the proposed
rule, as well as public comments received on the 1998 Policy Statement
and in the hearing process workshop, the Commission has decided to
retain the proposed rule's general approach of fashioning hearing
procedures that are tailored to the different kinds of licensing and
regulatory activities the Commission conducts. However, in response to
public comments, the Commission has revised the scope of proceedings to
be governed by a hearing track, and has created a new track to provide
for ``legislative hearings.'' The Commission expects that the revised
hearing procedures, ranging from informal to formal, will improve the
effectiveness and efficiency of the NRC's hearing process, and better
focus and use the limited resources of all involved.
The following discussion describes and sets forth the bases for the
final rule, including the Commission's resolution of all significant
matters raised in public comments on both individual provisions of the
proposed rule, and the Commission's requests for comment on specific
issues, as well as additional corrections, clarifications, and
additional matters addressed by the Commission in the final rule. The
Commission's response to all remaining matters raised in the public
comments are contained in ``Responses to Comments Not Addressed in the
Statement of Considerations for Changes to the Adjudicatory Process:
Final Rule.'' This document may be inspected at the NRC's Public
Document Room, 11555 Rockville Pike, Rockville, Maryland, 20852, as
well as in the NRC's Public Electronic Reading Room, http://www.nrc.gov/NRC/ADAMS/index.html
(ADAMS Accession No. ML033510327).

Conforming changes to other Commission regulations in Title 10 of the
Code of Federal Regulations have not been discussed, except where
additional clarification of the basis for the change was deemed
necessary.
(a) Overall Organization of part 2.
To provide for a more effective and efficient hearing process, the
Commission is revising 10 CFR part 2 by:
(1) Establishing a new Subpart C to consolidate the Commission's
procedures for ruling on requests for hearing/petitions for leave to
intervene and admission of contentions, and establishing criteria for
determining the specific hearing procedures that are to be used in
particular cases and to set out the hearing-related procedures of
general applicability;
(2) Modifying the hearing procedures in the current subpart G and
subpart L and expanding the applicability of more informal procedures;
(3) Establishing a new subpart N that will provide ``fast track''
hearing procedures;
(4) Establishing a new subpart O that the Commission will use to
conduct ``legislative hearings;''
(5) Making conforming amendments as necessary throughout part 2 and
the remainder of the Commission's regulations in title 10 to refer to
the correct provisions of revised part 2; and
(6) Making correcting amendments to use: (i) Consistent terminology
(e.g., ``construction authorization for a high-level radioactive waste
repository at a geologic repository operations area noticed under
Sec. Sec. 2.101(f)(8) or 2.105(a)(5),'' and ``proceedings on an

[[Page 2191]]

initial application for a license to receive and possess high-level
radioactive waste at a geologic repository operations area''), (ii)
proper grammar, and (iii) plain English.
New subpart C--Rules of General Applicability for NRC Adjudicatory
Hearings--is 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
or a designated presiding officer would rule on requests for hearing/
petitions to intervene and the admissibility of proffered contentions
using the standards and procedures of subpart C.
In a change from past NRC practice, the Commission may designate
either an administrative law judge \8\ or a three-member Atomic Safety
and Licensing Board,\9\ to preside over subpart G, J, K, L and N
hearings. The Commission has taken this step to ensure that all of
these proceedings meet the requirements with regard to a presiding
officer for an on-the-record hearing under the APA, 5 U.S.C. 554, 55,
556, and 557.
---------------------------------------------------------------------------

\8\ Administrative law judges are appointed by an agency in
accordance with 5 U.S.C. 3105, and are accorded some independence
from the agency appointing them, because control of their
compensation, promotion and tenure is vested by statute in the
Office of Personnel Management.
\9\ Section 191 of the Atomic Energy Act of 1954, as amended,
(AEA) authorizes the Commission to use Atomic Safety and Licensing
Boards as an alternative to using an administrative law judge in
agency hearings.
---------------------------------------------------------------------------

When 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,
i.e., Subpart G to be used for the most formal hearings, Subpart L for
more informal hearings, Subpart M for license transfer cases, Subpart N
for an expedited ``fast track'' hearing. The exception is Subpart O,
which identifies the circumstances and procedures under which the
Commission will conduct ``legislative hearings.'' These hearings may be
held in the Commission's sole discretion: (1) In connection with design
certification rulemakings, and (2) to assist the Commission in
resolving questions on whether the Commission rules and regulations
should be considered in a particular adjudication certified to it under
Sec. 2.335(d), as well as the special procedures to be utilized in
such hearings. Subpart C also contains rules applicable in general to
hearings conducted under the respective subparts.
The hearing procedure selection provision in Sec. 2.310 reflects
the range of proceedings for which the Commission intends to use
informal hearing procedures. This is in keeping with the Commission's
intent to expand the use of more informal procedures to improve the
effectiveness and efficiency of the NRC's hearing processes. Subject to
four exceptions, hearings will be conducted using more informal
procedures. These exceptions are: (1) Licensing of uranium enrichment
facilities, (2) initial authorization of the construction of a HLW
geologic repository, and initial issuance of a license to receive and
possess HLW at a HLW geologic repository, (3) enforcement matters
(unless the parties agree to use more informal hearing procedures), and
(4) parts of nuclear power plant licensing proceedings where the
presiding officer by order finds that resolution of an admitted
contention necessitates resolution of: (a) Issues of material fact
relating to the occurrence of a past activity, where the credibility of
an eyewitness may reasonably be expected to be at issue, and/or (b)
issues of motive or intent of the party or eyewitness material to the
resolution of a contested factual matter. Hearings for such contentions
would be conducted using Subpart G procedures; hearings for any other
contentions which do not meet this test would be conducted using
Subpart L (or, upon agreement of all parties, Subpart N) procedures.
The Commission is retaining essentially all of the current
procedures specific to the conduct of hearings under Subpart G. The
Commission is substantially modifying the existing procedures in
Subpart L to correct weaknesses identified under the current rule and
to build on the experience under the current procedures for hearings in
Subpart M for license transfer proceedings. 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. The Commission is
adopting a new Subpart N containing procedures for a ``fast track''
hearing, including an expedited oral hearing and oral motions, and
limits on written submissions and the sometimes protracted series of
written responses they often entail. Subpart N procedures could be used
in any proceeding (except a proceeding on the licensing of construction
and operation of a uranium enrichment facility) upon agreement of all
parties.
Finally, the Commission is also adopting a new Subpart O that will
govern the conduct of ``legislative hearings'' that the Commission may,
in its discretion, decide to hold in either design certification
rulemakings or to assist it in resolving a question certified to it
under Sec. 2.335. Conforming changes have been made to other subparts
of 10 CFR part 2 and throughout Chapter 10 to reflect the
reorganization of part 2.
(b) Commission Response to Eight General Questions in Proposed
Rule.
In the proposed rule the Commission requested public responses to
general questions in each of eight areas of discussion. The comments
and the Commission's resolution of the comments are set forth below.
Question 1: Overall Approach for More Informal Hearings
In preparing the proposed rule, the Commission carefully considered
the advantages and disadvantages 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 Commission recognized
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
requested public comments on the relevant considerations that should
inform the Commission's decision in adopting more informal hearing
procedures, and whether the Commission's strategy in moving towards
more informal hearing procedures should be continued. Commenters were
asked to identify 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 fundamental
fairness, the need for timely decisionmaking, and accurate fact-
finding.
A broad range of comments was received, from those supporting the
move to tailored, less-formal hearings, to those who oppose the move,
asserting that the NRC's legislative and agency

[[Page 2192]]

history supports formal public hearings conducted under Subpart G. In
general, all of the private individual commenters and citizen groups
opposed the move away from the full panoply of hearing procedures in
Subpart G and the expanded use of more-informal hearing procedures
reflected in the proposed Subparts L, M, and N. Two citizen group
commenters argued that the Commission's proposal to expand the use of
more-informal hearing procedures in Subpart L instead of the full
panoply of Subpart G hearing procedures in nuclear power plant
licensing proceedings was in violation of the AEA and the APA. In
support of this view, they pointed to an OGC memorandum that was
prepared in 1989 on license renewal that concluded that formal hearings
were likely intended by Congress under the AEA. Several citizen group
commenters asserted that the use of informal hearing procedures in
reactor licensing proceedings constitutes a violation of due process
under the Fifth Amendment of the U.S. Constitution. Several commenters
argued that it is inconsistent for NRC to decide that formal hearings
for licensing of a HLW geologic repository are necessary in order to
build public confidence. In their view, ``deformalizing'' public
participation in the decision-making process to generate more HLW
through license extensions, new licenses, and amendments essentially
eliminates the time needed for public awareness and involvement. By
contrast, the nuclear industry commenters generally supported the shift
away from the Subpart G procedures, with a commenter specifically
asserting that informal hearings should become the presumptive hearing
mechanism.
For the reasons set forth in Section I.B. above, the Commission
continues to believe that formal, on-the record hearings are not
required by the AEA, except for the initial licensing of the
construction and operation of a uranium enrichment facility under
Section 193 of the AEA. Furthermore, the Commission believes that, with
the adoption of the requirement in Sec. 2.313 that hearings under
Subparts G, J, K, L and N be presided over by either an administrative
law judge or an Atomic Safety and Licensing Board, the hearing
procedures in each of these subparts meets the requirements for an on-
the-record hearing under the APA in any event.
However, as a matter of discretion the Commission has decided to
provide for formal, on-the-record hearings using the full panoply of
Subpart G procedures and cross-examination in certain narrowly-
prescribed areas. The fact that there may have been a long-standing
Commission position that hearings must be conducted under Subpart G--at
least with respect to reactor licensing--does not by itself prevent the
Commission from taking a different view, and providing for less-formal
hearing procedures, rather than the full panoply of discovery and
cross-examination under Subpart G.
The Commission also disagrees with the assertion that use of
hearing procedures other than those in Subpart G in reactor licensing
proceedings violates the Due Process clause of the Fifth Amendment. The
commenters presented no citations to any court decision holding that
the use of other than Subpart G procedures in reactor licensing
proceedings is a Due Process violation. Nor did the commenters present
any legal analysis using the three criteria identified by the U.S.
Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976) for
evaluating claims that agency procedures violate the Fifth Amendment.
The Commission notes that intervenors in reactor licensing proceedings
(as opposed to reactor license applicants, and those who are the
subject of an NRC enforcement action) ordinarily cannot raise
constitutional Due Process issues with respect to NRC hearing
procedures, inasmuch as intervenors cannot claim governmental
deprivation of ``life, liberty or property'' as a result of the NRC's
licensing action. See City of West Chicago v. NRC, 701 F.2d 632, 645
(7th Cir. 1983). The Commission believes that the use of these
procedures raises no constitutional Due Process issues, and that the
Commission possesses the discretion to adopt the use of more informal
hearing procedures.
The Commission also sought comments on whether the more informal
hearing processes should be augmented or even supplanted by even more
informal, legislative hearing procedures. One commenter supported
supplanting both the existing hearing procedures, including Subpart G
to the maximum extent allowed by law, and the proposed informal
procedures with legislative hearings. Another commenter suggested that
proposed Subparts L and N were sufficiently flexible and informal, but
that moving to an even more informal legislative hearing may also be
acceptable, so long as requirements are imposed to ensure that the
hearings will be clearly focused on matters in dispute, and that
parties will have sufficient opportunity to challenge factual claims or
expert opinions advanced by their opponents. Finally, several
commenters noted their opposition to legislative hearings. One
commenter opined that legislative hearings were appropriate for
resolving public policy issues, but not for issues implicated in
nuclear licensing. Another simply stated that it was unrealistic to
envision more legislative hearings as it presupposes that the
Commission, presiding officer or Licensing Board possesses the
requisite experience to promptly grasp and frame the issues.
Additionally, a commenter stated that the rule should not be changed to
resemble legislative hearings; adjudicatory hearings should provide for
a fair process before an independent tribunal. Accordingly, the
commenter asserted that it is the interested person and not the
presiding officer or Licensing Board that must be responsible for
proposing the issues and offering sufficient evidence to support their
position.
The Commission believes that legislative hearings--where there are
no parties, no discovery, witnesses are called to provide testimony on
agency-identified matters, and questions are propounded to witnesses by
the presiding official (which may be the Commission)--are not well
suited to resolving disputes of fact relating to the occurrence of a
past event, where the credibility of an eyewitness may reasonably be
expected to be at issue, or where the motive or intent of the party or
eyewitness is at issue. Nor does the legislative hearing model appear
to offer any real advantages over other informal or formal hearing
procedures in resolving matters of law. Moreover, the Commission has
little experience in using legislative hearing procedures in contested
proceedings, making it difficult to determine what practical problems
would arise if contested proceedings were conducted under a legislative
hearing model. Legislative hearings, however, do appear to be suited to
the development of ``legislative facts,'' viz., general facts which
help a decisionmaker decide questions of policy and discretion. See
Sidney A. Shapiro, Scientific Issues and the Function of Hearing
Procedures: Evaluating the FDA's Public Board of Inquiry, 1986 Duke
L.J. 288, 265-96 & nn.61-66, citing Kenneth Culp Davis, The
Requirements of a Trial-type Hearing, 70 Harv. L. Rev. 193, 199 (1956).
In the Commission's view, the non-adversarial nature of a
legislative-style hearing may be the best way of developing the factual
and policy bases for a decision in at least two discrete, narrowly-
defined circumstances. The first is in design certification rulemaking,
where the Commission

[[Page 2193]]

identifies a significant policy issue (perhaps of potentially generic
implications) either during the formulation of the proposed design
certification rule, or as the result of public comments on the proposed
design certification rule. In either circumstance, the Commission
could, as a matter of discretion, decide to hold a legislative hearing
to develop a record on the competing policy considerations that would
inform a Commission decision on the underlying policy issue. The
current rules, 10 CFR 52.51 and 52.63, provide for an opportunity for a
commenting member of the public (or, in the event of a proposed
amendment to a design certification rule, the party which applied for
the certification) to request an informal hearing, but provide no
guidance as to the nature of issues for which an informal hearing may
be granted. Furthermore, the hearing is held only upon request; the
rule is silent with regard to the Commission itself holding a hearing
to gather pertinent facts and policy perspectives. The Commission
believes that the design certification rulemaking process could be
strengthened by incorporating an option for the Commission to hold, on
its sole discretion, a legislative hearing to enable it to gather
information on discrete policy matters relevant to the design
certification.
The second area where a legislative hearing may prove useful is in
the Commission's determination of a question certified to it by the
presiding officer under Sec. 2.335 (formerly Sec. 2.758) regarding
whether the Commission's rules and regulations should be considered in
a particular adjudication. There may be circumstances where the
Commission, after reviewing the question certified to it by the
presiding officer, determines that there are significant policy issues
regarding the certified question. As in design certification
rulemaking, the Commission could, as a matter of discretion, hold a
legislative hearing to develop a record on the competing policy
considerations that would inform a Commission decision on the certified
question.
Question 2: Hearing Tracks
A very significant part of this rulemaking involves 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 proposed rule's
hearing procedure selection criteria, the Commission recognized that,
with the exception for licensing of uranium enrichment facilities, the
Commission has broad authority and substantial flexibility to choose
among the procedures in Subpart G, more informal oral or written
hearing procedures, or any combination of Subpart G and more informal
hearing procedures. The proposed rule reflected the Commission's belief
that there should be at least three hearing tracks--a formal hearing
track, an informal hearing track, and as provided by statute for
expansion of spent fuel storage at nuclear power plants, a hybrid
procedure. However, the Commission requested public comment on: (1) The
proposed rule's approach of multiple, specialized tracks tailored to
certain types of issues, (2) whether additional specialized tracks
should be considered, and (3) the desirability of adopting an
alternative approach that would provide for 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.
While a number of commenters on this question generally supported
the use of multiple hearing tracks tailored to certain types of issues,
there was much disagreement over the kinds of proceedings which should
be subject to differing hearing tracks. One commenter suggested that
hearings on license applications, amendments, and transfer requests
should be informal and normally conducted by means of written
submittals. Additional specialized hearing tracks were not seen as
necessary because the tracks in the proposed rule, with some
modifications, were viewed as sufficient to address the various types
of matters coming before the Commission for adjudication. One commenter
specifically stated that it did not support the adoption of a single
formal and two informal hearing tracks, with presiding officer
discretion to tailor procedures for each case. The commenter stated
that, although somewhat complex, the multiple-track approach currently
proposed would provide clear directions and certainty for each type of
proceeding. Two commenters asserted that providing hearing officers
with wide discretion to determine the hearing process in each case
would likely result in additional disputes and litigation over
procedural matters, reduce the predictability of likely burdens on
participants in proceedings, and risk application of inconsistent
processes in similar cases. One commenter argued that, in licensing all
nuclear fuel cycle activities, formal hearings should be available on
request to interested persons.
The Commission has decided to adopt the proposed rule's approach of
establishing three primary hearing tracks supplemented with additional
hearing tracks tailored to the kind of proceedings and issues that may
be addressed in such proceedings. The primary hearing tracks are: (1)
Subpart G, containing the full panoply of formal, trial-type
procedures; (2) Subpart L, establishing a set of more informal hearing
processes; and (3) Subpart K, containing a legislatively-required
hybrid hearing process.
The Commission sought public comment on whether there are better
alternatives to the proposed rule's approach for defining what type of
proceedings are appropriate for Subpart G hearing procedures, versus
more informal hearing procedures. The Commission asked whether the
proposed category of cases to which formal hearing procedures would
apply was too narrow, or conversely, should the rule specify that all
proceedings would be informal hearings unless one or more criteria are
met for the use of formal, Subpart G hearing procedures. The Commission
requested proposals for criteria for determining formal versus informal
hearing procedures, indicating that 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.
Industry commenters generally asserted that the proposed category
of cases to which informal hearing processes would apply is too narrow.
They also disagreed with the assumption that formal trial-like
procedures in Subpart G will be helpful in resolving proceedings with
``numerous and complex issues.'' Instead, they proposed that informal
processes such as those in proposed Subparts L and N should be used for
nearly all types of proceedings. By contrast, citizen group commenters
generally opposed the move to informal hearing procedures, and
contended that all hearings should be formal.
The Commission has decided to continue using the approach set out
in the proposed rule, whereby most adjudications would be conducted
under the hearing procedures in Subpart L, unless one of the more
specialized hearing tracks in Subparts G, K, M, or N, apply. With the
exception of Subpart O legislative hearings, the criteria for

[[Page 2194]]

selecting among the specialized hearing tracks are set forth in Sec.
2.310. The circumstances under which the Commission may decide to hold
Subpart O legislative hearings, are set forth in Sec. 2.1502. The
criteria for designating the hearing track for any given proceeding are
discussed further in II.A.2(f) in connection with the resolution of
comments on Sec. 2.310.
Question 3: Presiding Officer
The Commission sought 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. In general, commenters did not embrace the
possibility of the Commission itself conducting a hearing. One
commenter asserted that the Commission should always serve the role of
an appellate body, while all proceedings should be before
administrative judges of the Atomic Safety and Licensing Board Panel.
Two commenters indicated that the NRC should make greater use of the
Atomic Safety and Licensing Board or a single administrative judge
rather than relying upon the Commission to preside. One of these
commenters noted that they would not object if the Commission were to
preside over a hearing in carefully selected special cases, if time and
other Commission responsibilities permitted, but observed that allowing
one or more Commission members to preside would create practical
difficulties on review of the initial decision. The commenter argued
that the final rule should specify whether a single presiding officer
or Licensing Board is to preside over particular proceedings, rather
than setting forth criteria governing the selection of hearing
procedures. The commenter also suggested that Sec. 2.313 be redrafted
to allow specifically for parties to request appointment of a Licensing
Board or single administrative judge within a reasonable time (10 days)
after a hearing is granted.
The Commission has decided that, with the exception of license
transfer proceedings, the final rule should not specify the
circumstances under which the Commission may choose to act as the
presiding officer, inasmuch as these circumstances are likely to occur
infrequently and in unusual circumstances. There seems to be little
benefit in developing criteria that would be used infrequently; the
Commission can address the question of the Commission itself serving as
the presiding officer on a case-by-case basis. However, as discussed
earlier, the Commission has decided that hearings conducted under
Subparts G, J, K, L and N should be presided over by either a single
administrative law judge (rather than a single administrative judge) or
an Atomic Safety and Licensing Board. Hearings under Subparts M and O
may be presided over by the Commission, a single administrative law
judge, a single administrative judge, or an Atomic Safety and Licensing
Board.
Question 4: Discovery
Unlike former Subpart G, where parties are permitted discovery
ranging from document production to multiple interrogatories and
depositions of other parties' witnesses, the proposed Subpart C would
set forth 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 mandatory disclosures required by Subpart C
and the broad public accessibility to documents provided by Sec. 2.390
(former Sec. 2.790). The Commission requested comments on whether
discovery should be eliminated or limited to requests from the
presiding officer.
Several commenters supported the use of a hearing file of the sort
currently required by Subpart L, as the file contains the entire basis
for NRC staff action in a particular case and, therefore, the
information pertinent to a general determination whether the
application meets the Commission's requirements. One commenter
suggested that such a hearing file should constitute the sole form of
discovery, while another supported the use of the broader disclosure
provisions in Subpart C as an adjunct to the hearing file. Some
commenters supported the adoption of the mandatory disclosure
provisions, but found proposed Sec. Sec. 2.335 (Sec. 2.336 in the
final rule) and 2.704 overly burdensome as drafted. Other commenters
opposed any changes in discovery, preferring that the Commission either
maintain the existing Subpart G discovery provisions, or that discovery
be governed by the Federal Rules of Civil Procedure. In general these
commenters argued that the proposed discovery provisions diminished the
rights of citizens and therefore should be prompted only by the most
compelling reasons which the NRC failed to provide. One commenter
stated that discovery is most successful when controlled by the
opposing party without oversight by a presiding officer, and considered
full discovery of the NRC staff to be essential.
The Commission believes that the tiered approach to discovery set
forth in the proposed rule represents a significant enhancement to the
Commission's existing adjudicatory procedures, and has the potential to
significantly reduce the delays and resources expended by all parties
in discovery. At the foundation of the Commission's approach are the
provisions in Subparts C and G which provide for mandatory disclosure
of a wide range of information, documents, and tangible things relevant
to the contested matter in the proceeding, and the NRC's provisions for
broad public access to documents in Sec. 2.390. The mandatory
disclosure provisions, which were generally modeled on Rule 26 of the
Federal Rules of Civil Procedure, have been tailored to reflect the
nature and requirements of NRC proceedings. Mandatory disclosure of
information relevant to the contested matter (together with the hearing
file and/or electronic docket, discussed later) should reduce or avoid
the need to draft often-complex discovery requests such as
interrogatories, prepare for time-consuming and costly depositions, and
engage in extended litigation over the responsiveness of a party to a
discovery request. Reducing the burden of discovery may enhance the
participation of ordinary citizens in the discovery process, since they
often do not have the resources to engage in protracted litigation over
discovery.
The second tier of discovery is provided by the hearing file in
Subpart G, L and N proceedings, and the electronic docket and LSN in
Subpart J. The hearing file consists of the application, correspondence
between the applicant and NRC relevant to the application, and when
available, any NRC environmental impact statement or assessment, and
any NRC safety report related to the application/proposed action. See
Sec. 2.1203(b). The NRC staff has a continuing duty to keep the
hearing file up to date. See Sec. 2.1203(c). Thus, all parties in a
Subpart G, L, or N proceeding need only periodically check the hearing
file (which is required to be placed on the NRC Web site, and/or at the
NRC's Public Document Room, see Sec. 2.1203(a)(3)) in order to be
informed of the status of the NRC staff's consideration of the
application or proposed action. In a Subpart J proceeding, rather than
using a hearing file, the Secretary of the Commission will maintain an
electronic docket into

[[Page 2195]]

which an application for a construction authorization for a high-level
radioactive waste repository at a geologic repository operations area,
and an application for a license to receive and possess high-level
radioactive waste at a geologic repository operations area will be
placed. In addition, the electronic docket will provide all official
NRC records on the application, and all exhibits tendered during the
hearing. In addition, prior to the filing of any application, potential
parties, including the applicant and the NRC staff, must enter all
pertinent documents into the LSN which will make such documents
available to all potential parties. Thus, the hearing file, the
electronic docket, and the LSN provide ready public access to all
public documents (i.e., those not otherwise required to be protected
from public disclosure, see Sec. 2.390) on the application or
enforcement action which is the subject of the hearing.
A third tier of discovery is provided for proceedings governed by
the hearing procedures in Subpart G, in which ``traditional'' discovery
tools such as interrogatories, depositions, subpoenas and admissions
may be used, as a supplement to the required mandatory disclosures.
These discovery tools may be useful in gaining information necessary to
adequately prepare for hearing, in seeking to gain specific information
from eyewitnesses or persons who have direct knowledge about events or
incidents directly bearing on motive or intent. In addition discovery
against the NRC staff may be pursued in accordance with Sec. 2.709
(formerly Sec. Sec. 2.720 and 2.744).
The Commission believes that public access to NRC documents
afforded by Sec. 2.390, mandatory disclosure for parties other than
the NRC staff, and maintenance of either a hearing file or an
electronic docket, will be sufficient in most proceedings to provide a
party with adequate information to prepare its position and
presentations at hearing (whether in written or oral form), such that
the discovery under Subpart G (e.g., depositions, interrogatories, and
subpoenas) is unnecessary. Subpart G discovery tools are analogues to
discovery tools used for litigation in trial courts of general
jurisdiction. These adjudications generally involve private parties
where information is not publicly disclosed nor ordinarily available to
all parties, and concern disputes over a broad range of subject
matters. By contrast, the vast majority of NRC proceedings concern
licensing applications or enforcement actions. All documentation
between the NRC and the applicant/subject of the enforcement action
with respect to the licensing application or enforcement action is
public (unless protected from public disclosure, see Sec. 2.390), and
will be placed into the hearing file or electronic docket. In addition,
as discussed later, the NRC staff often holds public meetings where an
application is discussed. In these circumstances, there is little or no
need for the broad range of additional discovery permitted under
Subpart G. Accordingly, the Commission concludes that the public access
to documents afforded by Sec. 2.390, the mandatory disclosures
required by Sec. 2.336, and the requirements for the NRC staff to
maintain either a hearing file under Sec. Sec. 2.336(b) and 2.1203 or
an electronic docket under Sec. 2.1011 (and the requirement for all
potential parties to participate in the LSN for any HLW repository
proceeding), are sufficient discovery in most NRC adjudications.
Question 5: Witnesses, Cross-Examination, and Oral Statements by the
Parties
The Commission sought 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
Commission requested public comment on: (1) The relative value and
drawbacks of cross-examination; (2) whether the proposed approach that
would limit cross-examination in favor of questioning by the presiding
officer is appropriate; (3), whether the proposed revisions to Subpart
L should include traditional cross-examination as a fundamental element
of an oral hearing; and (4) assuming that cross-examination is retained
for some subset of oral hearings, the appropriate criteria for
identifying and distinguishing between proceedings or issues where
cross-examination should be used, and those where cross-examination is
not necessary.
Commenters responding to this question ranged from those who
supported traditional cross-examination in all proceedings, to those
who preferred questioning by the presiding officer. Of those commenters
preferring cross-examination by the parties in all proceedings, one
commenter noted that cross-examination has long been a hallmark of NRC
proceedings and that it is crucially important to intervenors who lack
the resources to submit their own expert testimony, but who have valid
concerns about an applicant's case. Another commenter opposed the
change in cross-examination practice without a compelling reason
provided by the NRC to justify such a fundamental change. One commenter
requested that all hearings be formal with the right to call witnesses
for direct and cross-examination. Another commenter regarded cross-
examination as most effective when it is ``exploratory'' or unplanned
and thus, opposed its constraint in any way. Another commenter was
concerned that a presiding officer and members of the Atomic Safety and
Licensing Board Panel are normally not qualified as an expert to ask
the necessary follow-up questions, and noted that any competent trial
judge should be able to limit excessive cross-examination. Other
commenters supported limiting cross-examination to issues and
proceedings where it proves useful. One commenter argued that the
Subpart L approach of questioning conducted by the presiding officer
should be expanded into Subpart G proceedings, where possible. This
commenter continued by arguing that the assertion of a need for cross-
examination to get to the truth has been repudiated by legal scholars,
and that limitations on cross-examination do not deprive any party of
its right to a full or fair hearing. Another commenter asserted that,
with the exception of hearings under Subpart G, the presumption should
be that hearings would be conducted based upon written submittals
unless specific criteria are met. This commenter asserted that in some
circumstances, cross-examination can assist a presiding officer by
requiring witnesses to answer questions which would otherwise not be
asked. The commenter also suggested that cross-examination is
particularly useful in cases where the credibility or motivations of a
witness or his or her recollection of events is at issue, but that it
has several drawbacks. Accordingly, the commenter suggested that cross-
examination be reserved for those matters in which it is likely to add
appreciable value. Another commenter stated that cross-examination
should be reserved for genuine issues of pure fact, and that in other
instances, the proper way to rebut an expert's testimony is by filing
rebuttal expert testimony.
After considering the various arguments of the commenters, the
Commission continues to believe that cross-examination conducted by the
parties often is not the most effective means for ensuring that all
relevant and material information with respect to a contested issue is
efficiently developed for the record of the proceeding. The
Commission's consideration of cross-examination in the hearing process
begins with the observation that parties have no fundamental right to
cross-

[[Page 2196]]

examination, even in the most formal hearing procedures provided in
Subpart G. Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 120
(1995). Under the APA, cross-examination is authorized only if
necessary for a ``full and true disclosure of the facts.'' 5 U.S.C.
556(d). Since neither due process principles nor the APA require cross-
examination, the Commission's determination whether to permit cross-
examination turns on whether cross-examination is necessary to
elucidate relevant and material factual evidence, or whether the
hearing process affords other mechanisms of assuring that the
decisionmaker is privy to such evidence in a manner that conserves the
decisionmaker's and the parties' time and resources. While cross-
examination can be an effective mechanism for ensuring a complete and
accurate hearing record, especially in circumstances involving disputes
over the occurrence of an activity or the credibility of a material
witness, it does not appear to be either necessary or useful in
circumstances where, for example, the dispute falls on the
interpretation of or inferences arising from otherwise undisputed
facts. In such cases, questioning of witnesses by the presiding
officer, after consideration of questions for witnesses propounded by
the parties, has the potential to be the better approach for assuring
the expeditious, controlled and deliberate development of an adequate
record for decision. The presiding officer is ultimately responsible
for the preparation of an initial decision on the contention/contested
matter; it would follow that the presiding officer is best able to
assess the record information as the hearing progresses, and determine
where the record requires further clarification or explanation in order
to provide a basis for the presiding officer's (future) decision. If
there are circumstances in any proceeding where the presiding officer
believes that cross-examination by the parties is needed to develop an
adequate record, the presiding officer may authorize cross-examination
by the parties.
Furthermore, upon further consideration and assessment of the
limited comments on the matter, the Commission believes that the
complexity and number of issues in nuclear power plant licensing
proceedings may not, per se, lead ineluctably to the conclusion that
cross-examination is necessary to ensure a fair and adequate hearing on
the contested matters. Rather, it is the nature of the disputed matters
themselves that most directly and significantly bears on whether the
techniques of formal hearings such as cross-examination are
appropriate. Accordingly, the Commission has decided to modify the
proposed rule by providing for the use of Subpart G procedures
(including formal discovery procedures and cross-examination at
hearing) in nuclear power plant licensing only where the presiding
officer by order finds that the resolution of particular contentions
necessitates resolution of material issues of fact which are best
determined through the use of the procedures in Subpart G. As discussed
earlier, these are issues relating to the occurrence of a past event
material to the issue in controversy, where the credibility of an
eyewitness (not an expert witness without first-hand knowledge) may
reasonably be expected to be at issue, as well as issues of motive or
intent of the party or eyewitness. In these circumstances, formal
trial-like procedures, with formal discovery before the hearing and
cross-examination at the hearing, are useful and should result in
development of an adequate record for decision on these particular
types of issues. The Commission continues to believe that in
proceedings using more informal hearing procedures, the presiding
officer should have sole authority and responsibility to conduct the
examination of witnesses, after considering suggested questions for
witnesses posed by the parties. However, the presiding officer has the
authority to allow cross-examination in informal proceedings upon
request of a party, if the presiding officer determines that cross-
examination is necessary to ensure the development of an adequate
record for decision. See, e.g., Sec. 2.1204(b) (Subpart L); Sec.
2.1322(d) (Subpart M); Sec. 2.1402(c) (Subpart N). While the
Commission acknowledges that this approach places greater emphasis and
responsibility on the presiding officer to oversee the development of a
full and complete record, the Commission concludes this approach will
result in the fair but expeditious development of an adequate record
for a final decision. In sum, the Commission expects that in hearings
under Subpart L, M, and N procedures, the presiding officer will
conduct the examination of witnesses, and that the presiding officer
will permit cross-examination only in the rare circumstance where the
presiding officer finds in the course of the hearing that his or her
questioning of witnesses will not produce an adequate record for
decision, and that cross-examination by the parties is the only
reasonable action to ensure the development of an adequate record.
The Commission requested public comment regarding whether parties
should be permitted to make oral statements of position (possibly under
time limits), if the Commission decided not to afford the right of
cross-examination in certain circumstances (as was proposed for
Subparts L and N). The Commission received no comments specifically
addressing this question, and no change to the proposed rule was made
in this regard.
Question 6: Time Limitations
In the proposed rule, the Commission noted that although the
existing part 2 and the proposals that follow set time limits for
filings, petitions, responses, and the like,\10\ there are no firm time
schedules or limitations established within which major aspects of the
hearing process (e.g., discovery, issuance of an initial decision) must
be completed. The Commission requested comment on whether firm
schedules or milestones should be established in the NRC's Rules of
Practice in part 2.
---------------------------------------------------------------------------

\10\ It should be noted that the proposed revisions to 10 CFR
part 2 generally did 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.
---------------------------------------------------------------------------

Several commenters supported the principle that the Commission set
strong and effective schedule mileposts in the rules to ensure
appropriate case management. One commenter stated that the rules
(including Subparts G, L and N) should specify clear and appropriate
schedules similar to existing Subpart M. The commenter continued by
noting that, although the proposed rule contains some potentially
effective tools to encourage Licensing Boards and presiding officers to
conduct efficient and effective hearings, more is needed, and supported
imposition of specific schedular milestones in all hearing tracks
governing the time limits for each stage of the proceedings, similar to
the milestones in Subpart N, Sec. Sec. 2.1404-2.1407. Another
commenter stated that the schedule should provide sufficient time for
parties to prepare for and participate in the proceeding, but contended
that limits should be set to prevent proceedings from becoming unduly
delayed and unpredictable in duration. Another commenter suggested that
the final rule should include firm hearing schedules and should provide
that the Commission be notified by the presiding officer within five
days if any of the milestones are missed. Another comment argued that
departures from schedules should not be permitted except upon an
affirmative showing that

[[Page 2197]]

specific criteria for departure from the schedule or order have been
met. But at least one commenter expressed firm opposition to milestones
or schedules stating that making schedules mandatory would lead to an
inflexible regime which violates the APA's mandate and would further
delay the time it would take for the Commission to become involved.
The Commission does not believe that a rule of general
applicability such as part 2 should establish mandatory and inflexible
schedules for the conduct of proceedings. The potential wide variation
in the number of parties and participants (interested State, local
government body, and affected, Federally-recognized Indian Tribes),
number of contentions, complexity of contentions, and other case-
specific circumstances and considerations may make it difficult to
establish a generic schedule or set of milestones. Moreover, the
Commission believes that strong case management and control by the
ASLBP and its presiding officers--using the tools and reflecting the
policies in the Commission's Policy Statement on the Conduct of
Adjudicatory Proceedings and in the rules of practice--and the
Commission's ongoing oversight of presiding officers and Licensing
Boards are the key to the efficient and effective conduct of hearings.
Accordingly, the final rule does not contain any generally-applicable
hearing schedule or set of milestones for the conduct of proceedings.
The rule does, however, require the presiding officer to establish a
schedule for the proceeding, to manage the case against that schedule,
and to notify the Commission when it appears that there will be
slippage in the overall schedule of sixty (60) days or more. See
Sec. Sec. 2.332 and 2.334. The Commission will continue to exercise
its oversight of proceedings and may revisit this issue in the future
if circumstances warrant. In particular, the Commission will consider
whether general sets of milestones for the principal adjudicatory
tracks can be developed and added to the rules as an appendix or
provided as guidance by other means.
Question 7: Request for Hearing and Contentions
The Commission requested public comment on the appropriate time
frame for filing petitions/requests for hearing and contentions, i.e.,
the simultaneous filing of requests/petitions, and contentions
(specific comments on the appropriateness of forty-five (45) days,
versus a different time period, are addressed below in II.A.2.(f) under
``Timing of Requests for Hearing/Petitions to Intervene''). Several
commenters supported the consolidation of petitions to intervene/
requests for hearing with proposed contentions. One comment noted that
this change should improve the efficiency of proceedings, and eliminate
ambiguities currently surrounding the timing of submission of
contentions. Most citizen group commenters, however, opposed
consolidated filing, arguing that the time provided for intervenors to
file their request/petition--which must demonstrate standing--and
contentions is unreasonably short and unduly burdens potential
requestors/intervenors. One of these commenters proposed using a
process whereby a request for hearing/petition to intervene is filed,
standing is resolved, and thereafter contentions are due.
The Commission has retained the consolidated filing of requests for
hearing/petitions to intervene and contentions in the final rule. The
Commission's experience in the area of license transfers under Subpart
M shows that simultaneous filing of requests/petitions and contentions
is not unreasonable and generally does not impose an undue burden on
potential requestors/intervenors. Moreover, unlike Subpart M, which
provides for twenty (20) days to submit requests/petitions and
contentions, as discussed below with respect to Section Sec. 2.309 the
Commission has considered concerns over the adequacy of the 45-day
period and has decided to provide sixty (60) days for submission of
requests/petitions and proposed contentions. The Commission also notes
that many significant licensing actions involve pre-application
meetings, which afford the public advance notice of impending
applications and an early opportunity to gain information on the
substance of the planned application. For these reasons, the Commission
concludes that a consolidated period for filing both requests/petitions
to intervene and contentions is a reasonable regulatory approach.
Question 8: Alternative Dispute Resolution
The Commission requested comments on whether the Commission's rules
should require parties to engage in alternative dispute resolution
(ADR). All commenters responding to this question supported the
availability and use of ADR in a wide variety of cases. Another comment
supported the use of ADR if all parties agreed to its use. However, no
commenter supported the mandatory use of ADR.
The Commission agrees with the commenters that in the absence of a
statutory requirement for the use of ADR in NRC adjudications, it is
not appropriate to mandate the use of ADR. The final rule's provisions
addressing ADR provide an opportunity for parties to use ADR, but do
not mandate it. Apart from this rulemaking, the Commission is currently
undertaking an evaluation of the use of ADR in NRC enforcement
proceedings (66 FR 64890; Dec. 14, 2001). This assessment may lead to
further changes in 10 CFR part 2 with respect to ADR in enforcement
proceedings.
(c) Introductory provisions.
The Commission is amending Sec. 2.4 to add a new definition of
``presiding officer,'' to make clear that when a provision in part 2
refers to a presiding officer, it may mean the Commission, a single
administrative law judge, an administrative judge, an Atomic Safety and
Licensing Board, or other designee, who has the authority to preside in
a part 2 proceeding as determined under the provisions of part 2.
(d) Subpart A.
The Commission is amending Sec. 2.100 to correct a typographic
error (``a license, versus ``alicense''). Section 2.101 is amended to
provide correct references to Subpart C and to conform paragraph (g)(2)
to current Federal Register formatting requirements. In response to a
comment, the Commission is modifying Sec. 2.101(a)(3)(ii) and (b) to
require that the applicant's notification of the availability of an
application and/or environmental report should be accompanied by, inter
alia, the email address, if one is available, of the designated
applicant representative. Section 2.102 is also amended to provide
correct references to Subpart C. Section 2.103 is amended to make clear
that these regulatory procedures for granting and denying a license
also apply to facility licenses; currently the rule does not refer to
facility licenses although there is no reason why the regulatory
procedures outlined should not also apply to such licenses. In
addition, Sec. Sec. 2.103, 2.104, 2.105 and 2.106 are amended to add a
reference to part 63 (66 FR 55732; Nov. 2, 2001), and to use consistent
terminology. In response to a comment, Sec. 2.107 is corrected to
provide that if an application is withdrawn before issuance of a notice
of hearing, the Commission (rather than a presiding officer) dismisses
the proceeding. Sections 2.108 and 2.110 are amended to provide correct
references to Subpart C.
(e) Subpart B.

[[Page 2198]]

Section 2.206--Requests for Action Under This Subpart

The Commission is modifying paragraph (c) of Sec. 2.206 to
transfer from former Sec. 2.772(g) (proposed rule Sec. 2.345(g)) the
authority of the Secretary to extend the time for Commission review on
its own motion of a Director's denial. Director's denials under Sec.
2.206 are not governed by the adjudicatory processes in part 2 and
therefore do not belong in Subpart C, which applies only to certain
specified NRC adjudicatory proceedings.
(f) Subpart C.
Section 2.302--Several corrections and clarifying changes were made
to Sec. 2.302 to: Correct the address for personal and expedited
delivery upon the Secretary, and to reorder the listing of addresses so
that this section and Sec. 2.305 are consistent with each other.

Section 2.304--Formal Requirements for Documents; Acceptance for Filing

In response to a comment, Sec. 2.304(f) is revised to correct a
typographic error in the proposed rule whereby the number of paper
copies of an electronically-filed document to be submitted to the NRC
was not specified. Section 2.304(f) now refers to ``2 copies.''

Section 2.305--Service of Papers, Methods, Proof

Section 2.305(e)(3) of the proposed rule provided that service by
electronic mail would be complete upon receipt of electronic
confirmation that one or more of the addressees for a party has
successfully received the transmission. A commenter argued that paper
copies of documents served electronically should be provided, in part
because service of hard copies is necessary to ensure consistency with
pagination for citation purposes. In addition, the commenter suggested
that this section be revised to provide for service by mail or fax
where an electronic transmission is undeliverable.
A change in this provision is warranted since not all e-mail
systems provide confirmation of delivery to the sender. Furthermore,
the Commission is considering a rulemaking addressing electronic
filing, which would be a better forum for the Commission to consider
issues of confirmation of electronic service. Finally, the Commission
agrees that paper copies should be provided to facilitate uniform
citation of documents which are served electronically. Accordingly, the
final rule deletes the provision for completion of service of e-mail
documents through electronic confirmation, and adds a new provision in
paragraph (c) requiring that a document served by e-mail must also be
served by one of the other means of service provided in Sec. 2.305.
Several corrections and clarifying changes were made to Sec. 2.305
to: (1) Add delivery by courier as equivalent to personal delivery, (2)
consistently refer to ``express'' mail, (3) add references to
``expedited delivery services'' (e.g., Federal Express and other
private delivery services) and to make clear that such services are
equivalent to express mail, (4) provide that the presiding officer may
require service of pre-filed testimony and demonstrative evidence to be
made by means other than first-class mail, (5) clarify the address for
delivery of documents by courier and expedited delivery services to the
Secretary of the Commission; and (6) correct the email address for
service of documents by e-mail to be consistent with Sec. 2.302.
In addition, to ensure that NRC staff is kept abreast of
developments in a proceeding, so that it may properly fulfill its
obligations to advise the presiding officer of its decision to act on
an application (see Sec. Sec. 2.1202(a), 2.1316(a) 2.1403(a)), and to
determine whether it should participate as a party in those proceedings
where the NRC staff may decide whether to participate (see Sec. Sec.
2.1202(b), 2.1316(b), 2.1403(b)), the Commission is revising Sec.
2.305 by adding a new paragraph (f). Section 2.305(f) requires: (1) All
parties to serve the NRC staff with copies of all documents required to
be served upon all parties and the Secretary, in instances where the
NRC chooses not to participate as a party, and (2) the NRC staff to
designate the person and address for service of such documents. The NRC
staff's designation must be made when it informs the presiding officer
of its determination not to participate as a party.

Section 2.306--Computation of Time

In response to a comment, the Commission is modifying Sec. 2.306
to provide that when computing time allowed for a response, no time is
added if a notice or paper is served in person or by courier. In
addition, the rule was modified to clarify that the period of time
allowed for response commences upon receipt of the document, and to
refer to ``after 5 PM'' instead of ``not received * * * before 5 PM.''
Other clarifying and conforming changes were made to: (1) Consistently
refer to ``first class mail,'' (2) make clear that expedited delivery
services are equivalent to express mail for purposes of determining the
time for responses, and (3) make clear that delivery in person or by
courier is equivalent to electronic transmission for purposes of
determining the time for responses.

Section 2.309--Hearing Requests/Petitions To Intervene; Standing;
Contentions Timing of Requests for Hearings/Petitions To Intervene

Section 2.309(b) of the proposed rule contained different
requirements for the timely filing of requests for hearings/petitions,
depending on whether notice of the proceedings and opportunity for
hearing are published in the Federal Register. Where Federal Register
notice is required, the proposed rule provided that the period for
filing requests/petitions would be the latest of the time specified in
the notice, the time specified in Sec. 2.102(d)(3), or if the notice
does not specify a time, forty-five (45) days from the date of
publication. Where Federal Register notice is not required by statute
or regulation, the proposed rule provided that a notice of agency
action (for which an opportunity to request a hearing may be required)
published on the NRC Web site would initiate a forty-five (45) day
period in which timely requests for hearing must be filed. The
Commission requested public comment on this proposal, asking commenters
to identify whether there are other notification methods that the NRC
could use to provide timely notice of licensing actions which are not
required to be noticed in the Federal Register.
A commenter supported publication of actions on the NRC Web site
where notice in the Federal Register is not required, noting that the
website is broadly and easily accessible to the public. On the other
hand, another commenter asserted that the NRC should continue and
expand its practice of publishing notices in the Federal Register,
explaining that while it supports publishing notice on the NRC Web
site, it is not as reliable as publication in the Federal Register,
which is legally deemed to be adequate notice.
The Commission believes that it should expand its practice of
noticing on the NRC Web site some of those actions which do not require
publication of notice in the Federal Register. The NRC Web site already
makes available a broad range of information, including notices of
availability of NRC reports, and notices of availability of NRC safety
evaluations. The Commission has recently approved NRC staff proposals
to enhance the NRC's Public Meeting Web site. See SECY-01-0137,
Enhancing Public Participation in NRC Meetings (July 25, 2001) (ADAMS
Accession No.

[[Page 2199]]

ML012070084). Internet access is becoming increasingly available to the
general public. According to the National Telecommunications and
Information Administration, in 2001 over 50 percent of U.S. households
have Internet access, with 43 percent of the households having access
at home. National Telecommunications and Information Administration,
U.S. Department of Commerce, A Nation Online: How Americans are
Expanding Their Use of the Internet (Feb. 2002).\11\ Persons who do not
have Internet access at home can, in many cases, obtain Internet access
through local public libraries (the Federal Communications Commission's
Universal Service Fund System provides funding for public libraries to
provide free Internet access, see 47 CFR 54.503). The Commission
believes that, as a practical matter, publication of notice by means of
the NRC Web site provides at least as much access to the notice for the
public as publication in the Federal Register. However, notice on the
NRC Web site costs substantially less than publication in the Federal
Register and can sometimes be done without the few days delay inherent
in sending notices for publication in the Federal Register. Where
Federal Register notice is not required by statute or regulation, any
notice of agency action (for which an opportunity to request a hearing
may be required) published on the NRC Web site initiates the period in
which timely requests for hearing must be filed.
---------------------------------------------------------------------------

\11\ This report is available for download at the National
Telecommunications and Information Administration Web site, at
http://www.ntia.doc.gov.

---------------------------------------------------------------------------

On the other hand, while the Commission agrees with the comment
that the NRC's Web site is broadly and easily accessible to the public,
the Commission nonetheless acknowledges that publication of notices in
the Federal Register are, by law, deemed to be constructive notice to
the public. Furthermore, the Commission recognizes that under the AEA,
some notices of NRC regulatory actions are required to be published in
the Federal Register, and for such regulatory actions a Web site notice
cannot replace (although they can supplement) a Federal Register
notice. However, in situations where notice is not required by law to
be published in the Federal Register, the cost of Federal Register
publication does not appear to be justified where a more cost-
effective, timely and broadly-accessible alternative, viz., publication
on the NRC Web site, is available. Accordingly, as will be discussed
later, the Commission will direct the NRC staff to enhance and expand
its efforts to provide public notice in some cases through publication
on the NRC Web site where Federal Register notice is not required.
The Commission also requested comments on three alternative
approaches for the timing of filing requests for hearing/petitions to
intervene, and proposed contentions: (1) Proposed contentions to be
filed as part of the initial request for hearing/petition to intervene
forty-five (45) days from the date of publication (either in the
Federal Register or on the NRC Web site) of the notice of opportunity
to request a hearing (embodied in proposed Sec. 2.309); (2) retention
of the current NRC practice, viz., filing of requests for hearing
within thirty (30) days of notice, and filing of contentions sometime
later, or (3) a longer time, e.g., seventy-five (75) days from notice
of opportunity for hearing, to file a request for hearing/petition to
intervene and proposed contentions.
In general, citizen group commenters opposed the proposed rule,
focusing on the limited time available to file requests/petitions that
address standing, while simultaneously developing contentions and their
supporting bases, as required by Sec. 2.309(f) (see comments to
Commission Question 7 above). One citizen group commenter noted that
the Commission previously had considered requiring simultaneous filing
of requests and contentions in Subpart G, and abandoned it as
unworkable. By contrast, nuclear industry commenters supported the
proposed rule requirement that requests/petitions and contentions be
filed no later than forty-five (45) days after NRC notice of the
proposed action, with the Commission having the discretion of extending
the time upon showing of good cause. One commenter stated that an
expansion of time for filing is warranted only in situations where the
times allowed by the rule are unworkable. One nuclear industry
commenter opposed providing seventy-five (75) days for submission of
contentions.
To address the comments that a forty-five (45) day period for
filing requests for hearing/petitions to intervene and contentions is
insufficient, as well as to ensure timely public notification of
impending NRC staff actions, the Commission has decided to provide a
sixty (60) day period for filing requests for hearing/petitions to
intervene and proposed contentions. The limited exceptions involve
facility license transfer proceedings, where the Commission is
retaining the current twenty (20) day period for filing requests for
hearing/petitions to intervene and contentions, and the proceeding on a
HLW geologic repository where the Commission will retain the thirty
(30) day period for filing requests for hearing/petitions to intervene
and contentions (in view of the ample pre-application document
disclosures provided by the LSN).
In addition, the Commission will direct the NRC staff to: (1)
Establish a single area on the NRC Web site for publishing: (a) Notices
of receipt of major applications or pre-application notifications of
intent to file an application; (b) notices of docketing of major
applications; and (c) notices of opportunity to request a hearing/
petition to intervene for major applications and regulatory actions;
and (2) develop guidelines, criteria and procedures for timely
determining the types of major applications, licensing and regulatory
actions for which Web site notice is appropriate. The Commission's
intention is that the most important applications, licensing and
regulatory actions, e.g., initial nuclear power plant and fuel facility
construction permits, facility license renewals, design certifications
under part 52, be noticed on the NRC Web site at http://www.nrc.gov/public-involve/major-actions.html.
This Webpage will include either a

link for download of the document, a link to a webpage with the
document text, or an ADAMS accession number and a link to the NRC's
Public Electronic Reading Room (PERR).
The Commission believes that these notice provisions, in
conjunction with an expanded period of sixty (60) days in which to file
a request for hearing/petition to intervene and contentions, will
provide more than ample time for a potential requestor/intervenor to
review the application, prepare a filing on standing, and develop
proposed contentions and references to materials in support of the
contentions. Most major licensing actions for nuclear facilities (where
the scope of the application is most likely to require significant
review time in order to prepare a request for hearing/petition to
intervene) entail pre-application filings which are docketed and are
available to the public, and pre-application meetings between the
applicant and the NRC staff which are open for observation to the
public. As discussed earlier, the NRC staff, with Commission direction,
is undertaking actions to provide more consistency in the conduct of
public meetings, and the opportunities for the public to ask questions
of the NRC staff at such meetings. For major licensing actions for
nuclear facilities, the Web notice of pre-application meetings which
the public may observe and have

[[Page 2200]]

a limited opportunity to ask questions, the availability of
application-related documents for reading on the NRC Web site and/or
download, and Federal Register and/or Web notice of the filing of an
application and acceptance of the application for docketing,
effectively provides the public with more than sixty (60) days to
become familiar with an application and prepare an adequate request for
hearing/petition for intervention and contentions. License amendments
and similar regulatory approvals for nuclear facilities, by contrast,
are for the most part narrow in scope in terms of regulatory permission
sought, and do not involve extensive amounts of documentary material.
For these actions, a period substantially less than sixty (60) days
should be sufficient to become familiar with an application and prepare
an adequate request for hearing/petition for intervention and
contentions. Nonetheless, the Commission will set the period for filing
requests for hearing/petitions to intervene and contentions at sixty
(60) days for these actions too.
With respect to licensing actions for radioactive materials, most
of these actions do not usually involve extensive amounts of
documentary material to review, and there is no statutory requirement
for publication of notice of materials licensing actions in the Federal
Register. Thus, the sixty (60) day period provided by Sec. 2.309(b)
should be more than ample time to review the application for a
radioactive materials license and prepare a request for hearing/
petition to intervene and proposed contentions. For those radioactive
materials licensing actions that are sufficiently complex or broad in
scope, it is the Commission's intention that NRC Web site notices would
be provided for pre-application meetings and notifications of intent to
file an application, and notice of docketing of the application. These
notices would ordinarily be published only on the NRC Web site inasmuch
as there is no statutory requirement for publication in the Federal
Register, although the Commission could, as a matter of discretion,
decide to publish notices of opportunity for hearing in the Federal
Register in individual cases if circumstances tend to indicate that
such publication is desirable. The Commission believes that sixty (60)
days is more than ample time to review the application for a complex
and/or broad scope radioactive materials license and prepare a request
for hearing/petition to intervene and contentions, in view of Web site
notice of pre-application meetings, availability of application-related
documents for reading on the NRC Web site and/or download, and Web site
notice of the filing of an application and acceptance of the
application for docketing.
If a potential requestor/petitioner believes that the period
provided for filing a request for hearing/petition to intervene is
insufficient, it may file an appropriate motion with the Commission to
extend the deadline for submission of requests/petitions and
contentions. Although the Commission expects to exercise its discretion
to extend such deadlines sparingly, the availability of such relief
provides additional reason to set a sixty (60) day period for filing a
request for hearing/petition to intervene for the usual cases.
Therefore, the final rule provides for a sixty (60) day period from
notice in the Federal Register (if no time is specified in the Federal
Register notice) or on the NRC Web site at http://www.nrc.gov/public-involve/major-actions.html
for filing of requests for hearing/petitions

to intervene, together with proposed contentions.
Section 2.309(b)(1) incorporates the existing twenty (20) day
period for filing a request for hearing/petition to intervene and
contentions on license transfers that was formerly contained in Sec.
2.1306 (which is being removed in the final rule). Although the
proposed rule indicated that Sec. 2.1306 would be removed, a
corresponding requirement for filing within twenty (20) days was not
included in proposed Subpart C. Section 2.309(b)(1) of the final rule
corrects this oversight. Similarly, Section 2.309(b)(2) incorporates
the existing thirty (30) day period for filing a request for hearing/
petition to intervene in connection with the licensing of a HLW
geologic repository. Although the proposed rule indicated that Sec.
2.1014 would be removed, a corresponding requirement for filing within
thirty (30) days was not included in proposed Subpart C. Section
2.309(b)(2) corrects this oversight. To accomplish these changes,
paragraphs (b)(1) and (b)(2) of proposed Sec. 2.309 are renumbered as
(b)(3) and (b)(4), and paragraph (b)(3) is modified to remove the
phrase, ``the latest of.'' Finally, Sec. 2.309(b)(3)(iii) is modified
to make clear that the sixty (60) day filing period applies where the
Federal Register notice does not specify a time for filing requests/
petitions.
Standing
A nuclear industry commenter indicated that Sec. 2.309(d) should
specify that a person must establish standing in order to participate
in Commission proceedings. Two citizen group commenters stated that the
NRC should not rely upon NRC case law for standing requirements, but
should go to the broadest judicial standards.
The Commission does not believe that Sec. 2.309 needs to specify
that a showing of standing is the general rule for participation in NRC
hearings, inasmuch as the basic structure of the rule requires a
demonstration of standing in order to participate as a party (standing
is presumed for a State, local government, and Federally-recognized
Indian Tribe where a facility is located within its political
boundaries). The only exception where intervention may be permitted,
despite a lack of demonstration of standing, is discretionary
intervention under Sec. 2.309(e).
While Article III of the Constitution does not constrain the NRC
hearing process, our hearings therefore, are not governed by
judicially-created standing doctrine, see Envirocare of Utah, Inc. v.
NRC, 194 F.3d 72 (D.C. Cir. 1999), the Commission nonetheless has
generally looked to judicial concepts of standing where appropriate to
determine those interests affected within the meaning of Section 189.a.
of the AEA. Commonwealth Edison Co. (Zion Nuclear Power Station, Units
1 and 2), CLI-99-04, 49 NRC 185, 188 (1999), citing Portland Gen. Elec.
Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC
610, 613-14 (1976). The Commission contemplates no change in this
practice. Accordingly, no change to the rule has been made in this
regard.
A commenter, while supporting the proposed Sec. 2.309(d)
requirement that a single designated representative of an affected
State, local governmental body and affected, Federally-recognized
Indian Tribe (Indian Tribe) be granted party status, suggested that the
designated representative must take a position on any contentions for
which the affected State, local governmental body or Indian Tribe
wishes to participate. The Commission believes that the language of the
proposed Sec. 2.309(d) may have led the commenter incorrectly to
conclude that the Commission would permit an affected State,
governmental body, or affected Indian Tribe admitted as a party under
Sec. 2.309 to ``participate as a party without taking sides.'' On the
contrary, the Commission intended to maintain the distinction between a
State, local governmental body, or Indian Tribe participating as
parties under Sec. 2.309, versus their participation in a hearing as
an ``interested'' State, local governmental body or Indian Tribe under
Sec. 2.315(c) (formerly Sec. 2.715(c)). A

[[Page 2201]]

State, local governmental body or Indian Tribe admitted as a party is
entitled to the rights and bears the responsibilities of a full party,
including the ability to engage in discovery, initiate motions, and
take positions on the merits. By contrast, an ``interested'' State,
local governmental body or Indian Tribe may participate in a hearing by
filing testimony, briefs, and interrogating witnesses if parties are
permitted by the rules to cross-examine witnesses, as provided in Sec.
2.315(c). However, such participation is dependent on the existence of
a hearing independent of the interested State, local governmental body
or Indian Tribe participation, and such participation ends when the
hearing is terminated. The Commission believes that the first sentence
of proposed Sec. 2.309(d)(2)(ii), which was intended to apply only to
participation under Sec. 2.315(c) as an ``interested'' State, local
government body or Indian Tribe, may have led to the confusion with
respect to the participation of a State, local governmental body or
Indian Tribe as a party. Accordingly, this sentence is removed from
Sec. 2.309(d)(ii) and has been incorporated into Sec. 2.315(c). Other
minor conforming changes were made to Sec. Sec. 2.309(d) and 2.315(c),
to uniformly refer to ``local governmental body,'' and ``affected
Federally-recognized Indian Tribe.''
Discretionary Intervention
The Commission requested public comment 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 requested public
comments on whether, as an alternative to codification of the six-part
Pebble Springs standard for discretionary intervention,\12\ the
Commission should adopt a simpler test for permitting discretionary
intervention and the nature of such a standard.
---------------------------------------------------------------------------

\12\ Portland Gen. Elec. Co. (Pebble Springs Nuclear Plant,
Units 1 and 2), CLI-76-27, 4 NRC 610, 616 (1976).
---------------------------------------------------------------------------

Many commenters opposed codification of the discretionary
intervention standard in proposed Sec. 2.309(e), arguing, inter alia
that: (1) The subjectivity of the standards will likely delay presiding
officers in making determinations, (2) meaningful public participation
will not be hampered by continuing to apply the Pebble Springs factors
without codification, and (3) discretionary intervention is not
consistent with the purpose of adjudicatory proceedings and would
permit parties who cannot demonstrate a direct interest in the outcome
of the proceeding to extend and broaden the scope of the proceeding.
Two commenters argued that there should be a presumption against
discretionary intervention such that it should be allowed only in
extraordinary circumstances. On the other hand, a citizen group
commenter indicated that the NRC should adopt a simpler test for
permitting discretionary intervention: one standard should be if a
petitioner lives within a community near a licensed facility or is
affected by a licensed facility; another should be the ability to raise
important health, safety, environmental, and legal issues that have
previously not been considered or adjudicated by the NRC.
The Commission has decided to incorporate the Pebble Springs
standard for discretionary intervention into the final rule to allow
consideration of discretionary intervention when at least one other
requestor/petitioner has established standing and at least one
admissible contention so that a hearing will be held. Those criteria
presume that discretionary intervention is an extraordinary procedure,
and will not be allowed unless there are compelling factors in favor of
such intervention. The Commission disagrees with the claim that the
subjectivity of the standards will result in delays; in the past, the
Pebble Springs standards have been applied by presiding officers and
Licensing Boards without apparent delay. With respect to the claim that
the lack of codification will not prevent meaningful public
participation, the Commission notes that codification directly into the
Commission's procedures for the conduct of adjudicatory proceedings
provides clear notice to the public regarding the criteria that the
Commission or presiding officer will apply in evaluating requests for
discretionary intervention; members of the public who are unaware of
the Pebble Springs decision would not be aware of the criteria that the
Commission would apply in assessing a petition for discretionary
intervention. The Commission disagrees with the assertion that
discretionary intervention is inconsistent with the purposes of
adjudicatory proceedings. The ultimate purpose of an adjudicatory
proceeding is to resolve material issues with respect to an NRC
regulatory action. The discretionary intervention standards, properly
applied, should ensure that only persons and entities who can
meaningfully contribute to the development of a sound record on
contested matters will be admitted as parties. With respect to the
citizen group commenters' suggestion that discretionary intervention
should be permitted for any petitioner living within a community near a
licensed facility, the Commission believes that such a criterion, if
adopted, would most likely be met in every circumstance and would not
account for the consideration of other relevant factors. With respect
to the second criterion, the Commission agrees with the citizen group
commenter that one factor (indeed, the most important factor, see
Pebble Springs, 4 NRC at 617) to be considered in assessing requests/
petitions for discretionary intervention is the capability of the
requestor seeking discretionary intervention to contribute to the
development of a sound record on important health, safety,
environmental or legal issues. However, the Commission must also be
mindful that there are other factors that must be considered, e.g.,
whether other parties already admitted in the hearing possess the same
capability to represent that requestor's interest. In the Commission's
view, the Pebble Springs criteria for assessing petitions for
discretionary intervention provide for an appropriate balancing of the
relevant competing factors. Therefore, the Commission declines to adopt
the suggestion that discretionary intervention be based solely on
consideration of the requestor's capability to contribute to the
hearing.
Nonetheless, the Commission must emphasize that past case law and
Commission policy make it clear that foremost among the factors in
favor of granting discretionary intervention is whether the petitioner
will assist in developing a sound record. See Pebble Springs, 4 NRC at
617 (1976). The most important factor weighing against intervention is
the potential to inappropriately broaden or delay the proceeding. Id.
The Commission fully expects that this case law and Commission policy
will be followed in applying the codified discretionary intervention
criteria.
Contentions
In a significant change from the existing regulations, the
requirement to proffer specific, adequately-supported contentions in
order to be admitted as a party is 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

[[Page 2202]]

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. 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
provides the bases for them in all hearings should focus litigation on
concrete issues and result in a clearer and more focused record for
decision.
Several commenters supported the Commission's proposal to extend to
Subpart L proceedings the requirement to proffer specific, adequately
supported contentions rather than simply state issues. One commenter
argued that the formulation of contentions is necessary to efficiently
develop an accurate record in an informal hearing. The commenter also
suggested that the Commission require that a contention show that the
petitioner is entitled to relief. Other commenters opposed requiring
contentions in informal proceedings, with one commenter asserting that
the Commission could accomplish its goal by clarifying the ``areas of
concern'' procedure, rather than forcing the public to bear the
increased cost of formulating admissible contentions. Citizen group
commenters also urged that the Commission adopt provisions permitting
requestors/petitioners/parties to be able to freely amend or add new
contentions based upon new information and documents such as the filing
of the NRC staff's SER and EIS. Nuclear industry commenters, by
contrast, argued that the Commission should instead take one or more
actions to make clear that SERs and EISs are not necessary to
resolution of contentions, and that the Commission take appropriate
actions to ensure that the NRC staff is able to provide its safety
position on any contention in a timely manner in a proceeding.
The Commission seeks to ensure that the adjudicatory process is
used to address real, concrete, specific issues that are appropriate
for litigation. The Commission continues to believe that a request for
hearing/petition to intervene should include proposed contentions. The
Commission should not have to expend resources to support the hearing
process unless there is an issue that is appropriate for, and
susceptible to, resolution in an NRC hearing. This principle applies
regardless of whether a hearing is to be conducted under informal or
formal procedures. The Sec. 2.309(f) contention requirement is
intended to support an early NRC determination whether there are issues
that are appropriate for and susceptible to NRC resolution with respect
to an NRC regulatory/licensing action. The suggestion for clarifying
the ``areas of concern'' approach would not accomplish that goal,
inasmuch as requestors/petitioners would not have to show at the outset
whether there is a real, cognizable dispute amenable to resolution by
the NRC. Nonetheless, the Commission does not agree with the
commenter's suggestion that still another requirement--that a
contention show that the petitioner is entitled to relief, should be
added to the petitioner's contention pleading burden. Such a criterion
overlaps the requirement in Sec. 2.309(d)(1)(iv) with respect to
standing, requiring the request/petition to address ``the possible
effect of any decision or order that may be issued in the proceedings
on the requestor's/petitioner's interest.'' Because a new criterion in
Sec. 2.309(f) on this matter would place an unneeded additional
requirement on the contention pleading provisions, the Commission
declines to adopt the commenter's suggestion.
The Commission also declines to adopt the thrust of the suggestions
to allow free amendment and addition of contentions based upon new
information such as the SER. The NRC staff has the independent
authority, indeed the responsibility, to review all safety matters.
See, e.g., S. Cal. Edison Co. (San Onofre Nuclear Generating Station,
Units 2 and 3), ALAB-680, 16 NRC 127, 143 (1982); Commonwealth Edison
Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC
1400, 1420, n.36 (1982); Philadelphia Elec. Co. (Limerick Generating
Station, Units 1 and 2), ALAB-778, 20 NRC 42, 48 (1984). The adequacy
of the applicant's license application, not the NRC staff's safety
evaluation, is the safety issue in any licensing proceeding, and under
longstanding decisions of the agency, contentions on the adequacy of
the SER are not cognizable in a proceeding. Curators of the Univ. of
Mo., CLI-95-1, 41 NRC 71, 121-22 (1995), affirmed on motion for
consideration, CLI-95-8, 41 NRC 386, 396 (1995), La. Power & Light Co.
(Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56
(1985); Pac. Gas Electric Co. (Diablo Canyon Nuclear Power Plant, Units
1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32,
18 NRC 1309 (1983). If information in the SER bears upon an existing
contention or suggests a new contention, it is appropriate for the
Commission to evaluate under Sec. 2.309(c) the possible effect that
the admission of amended or new contentions may have on the course of
the proceeding. The commenters' proposal appears to be based upon the
misapprehension that, absent consideration in a hearing, safety
concerns will not be addressed by the NRC. On the contrary, the NRC may
not issue a license until all appropriate safety findings have been
made. See, e.g., Commonwealth Edison Co. (Byron Nuclear Power Station,
Units 1 and 2), ALAB-678, 15 NRC 1400, 1420 n.36 (1982), citing S.C.
Elec. & Gas Co. (Virgil C. Sumner Nuclear Station, Unit 1), ALAB-642,
13 NRC 881, 895-896 (1981). Furthermore, any member of the public who
believes that he or she has significant safety information may, at any
time, submit a request for NRC action under 10 CFR 2.206 to modify,
suspend, or revoke a license, or for any other action (e.g., refuse to
issue a license) that may be appropriate. In sum, the hearing process
is directed at resolving issues identified and conceptualized by an
interested member of the public, not at supervising the NRC staff's
independent safety review.
With respect to the EIS, the current regulations in 10 CFR Part 51
provide for hearing consideration of environmental matters. See 10 CFR
51.94. Accordingly, Sec. 2.309(f)(2) will control the admission of
amended and new contentions based upon issuance of the NRC staff's EIS,
and Sec. 2.337(g) will govern the introduction of the EIS or EA into
evidence in a proceeding.
One commenter suggested that the Commission adopt a new Sec.
2.309(f)(3) to specify, where a petitioner adopts an admitted
contention of another party, that the presiding officer or Licensing
Board must require one of the petitioners to act as lead. The
Commission agrees that a new Sec. 2.309(f)(3) should be adopted to
include such a requirement, and concludes that the paragraph should
also include an analogous requirement for a lead representative where
two or more requestors/petitioners co-sponsor a contention.
Timing of Identification of Appropriate Hearing Procedures
In the proposed rule, Sec. 2.309(g) would require 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, or ``fast track'' informal procedures under
Subpart N) to be used for the proceeding. The Commission

[[Page 2203]]

indicated that this would not be 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
requested public comment on whether, if the Commission adopts the
alternative proposal that requests for hearing be filed within thirty
(30) days of appropriate notice, but that contentions be filed later
(e.g., within seventy-five (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. Commenters did not specifically
address the Commission's question, and no changes were made in the
final rule with respect to this matter.
Answers and Replies
In the proposed rule, Sec. 2.309(h) would allow the applicant or
licensee and the NRC staff twenty-five (25) days to file written
answers to requests for hearing/petitions to intervene, and would
permit the petitioner to file a written reply to the applicant/licensee
and NRC staff answers within 5 days after service of any answer. No
other written answers or replies would be entertained. The Commission
sought public comment on whether the proposed time limits for replies
and answers should be expanded.
A commenter representing a number of organizations indicated that
the five (5) days allotted in Sec. 2.309(h)(2) is too short a time to
respond to NRC, applicant or licensee answers. Instead, the rule should
provide for at least ten (10) days to respond. By contrast, NEI argued
that the periods allowed in the proposed rule for answering requests
for hearing/petitions to intervene and replies should be expanded only
in situations where time limits are ``unworkable.''
The Commission has decided to provide seven (7) days for a
requestor/petitioner to respond to an applicant/licensee and NRC staff
answer on a request for hearing/petition to intervene. Any reply should
be narrowly focused on the legal or logical arguments presented in the
applicant/licensee or NRC staff answer; a seven-day period to prepare
such a focused reply is not unreasonable. If there are special
circumstances, the requestor/petitioner may request a short extension
from the presiding officer.
A commenter suggested that Subpart C should provide that the
presiding officer issue a decision on standing and admissibility of
contentions within 45 days of the completion of the parties' filings on
those issues. The Commission agrees with this suggestion, and a new
paragraph (i) has been added to Sec. 2.309 requiring the presiding
officer to issue a decision on standing and admissibility of
contentions within forty-five (45) days of the completion of the
parties' filings. The Commission believes that this is an appropriate
and reasonable time period for a presiding officer to issue a decision
on standing and admissibility of contentions, considering the
thoroughness of the petitions and responses. Additional time beyond the
45 days may be provided if circumstances warrant.

Section 2.310--Selection of Hearing Procedures

(1) Subpart G Hearing Procedures.
The Commission requested comment on the criteria for identification
of cases where the use of Subpart G hearing procedures would be of
benefit. Comments will be discussed under each criterion in the
proposed rule.
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 AEA requires that hearings on
uranium enrichment facility construction and operation be ``on-the-
record,'' thus requiring formal trial-type hearing procedures to be
used. Section 2.310(b) of the proposed rule reflected this requirement
by specifying that a proceeding on licensing the construction and
operation of a uranium enrichment facility must be conducted using the
hearing procedures of Subpart G. No comments were received on this
criterion and no change to the substance of the proposed rule was made
in this regard. However, the Commission reorganized Sec. 2.310 in the
final rule. Accordingly, Sec. 2.310(c) in the final rule specifies the
use of Subpart G hearing procedures in proceedings on the licensing of
the construction and operation of uranium enrichment facilities.
Enforcement Matters. In its July 22, 1999 Staff Requirements
Memorandum on SECY-99-006, Reexamination of the NRC Hearing Process,
the Commission noted that Subpart G hearing procedures would seem to be
appropriate for hearings on enforcement actions. Several participants
in the October 1999 hearing process workshop agreed, noting that
Subpart G 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 requested
comments on the proposal to require the application of Subpart G
hearing procedures in hearings involving enforcement matters and views
on whether and when to allow the use of less formal hearing procedures
for these matters.
All commenters agreed that Subpart G hearing procedures should be
available in enforcement cases, with one commenter noting that Subpart
G should be available in enforcement actions against both individuals
and licensees. However, one commenter asserted that enforcement matters
should be the only proceedings where Subpart G procedures should be
applied. Two commenters stated that individuals and licensees should be
able to request use of informal procedures in enforcement cases. One of
those commenters indicated that the NRC staff should not have ``veto
power'' over a licensee's choice to use Subpart N in enforcement and
civil penalty cases, while the other implicitly suggested that the NRC
staff should not be able to choose to use more informal procedures.
The Commission continues to believe that Subpart G hearing
procedures should be applied in enforcement actions against both
individuals and licensees. The Commission does not agree with the
suggestion that the subject of an enforcement action alone should be
able to choose informal procedures. As one commenter pointed out,
enforcement actions usually involve making determinations of intent and
credibility, for which the use of Subpart G hearing procedures--in
particular, cross-examination--are especially suited. On the other
hand, if all parties agree to the use of one of the more informal
hearing procedures in an enforcement proceeding (e.g., Subpart L or
Subpart N), there does not appear to be any significant public policy
mitigating against such a choice by all parties. Therefore, the
substance of the final rule remains unchanged from the proposed rule in
providing that all parties must agree and jointly request an
enforcement proceeding to be conducted under the procedures of Subpart
L or Subpart N.
High Level Waste (HLW) Repository Licensing. Until the adoption of
Subpart L in 1989 (54 FR 8276; Feb. 28, 1989), all proceedings
conducted by the AEC and NRC were formal adjudicatory hearings.
Consistent with that established practice, in 1978 the NRC declared
that it would hold Subpart G hearings on an application to construct
and operate a repository for HLW. In

[[Page 2204]]

final rules published in 1981, the Commission provided for a mandatory
Subpart G hearing at the construction authorization stage and for an
opportunity for a Subpart G hearing before issuing a license to receive
and possess HLW at a geologic repository. Subsequently, Congress
enacted the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq.
That law does not include any specific hearing requirements. Instead,
it seems to contemplate, in 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, on-
the-record hearing using Subpart G procedures on a HLW repository, but
without a rule change, the NRC's regulations would require a Subpart G
hearing.
Although the Commission generally seeks to use more informal
procedures for its hearings, the proposed rule reflected the
Commission's tentative conclusion that the hearing procedures of
Subpart G should be used in proceedings for the initial authorization
to construct a HLW repository, and proceedings for issuance of an
initial license to receive and possess HLW at a HLW repository. The
initial authorization of construction of a HLW repository and the
initial issuance of a license to receive and possess HLW are likely to
be highly contested. The President's recommendation to proceed with
repository development at the Yucca Mountain site has been upheld by
Congress. The adjudication is likely to involve multiple parties,
including the State of Nevada, as well as possible participation by
other States, local governmental bodies, and Federally recognized
Indian Tribes. The issues to be adjudicated will undoubtedly involve a
large number of disputes over material facts. Moreover, the Commission
has long taken the position that for this unique, first-of-its-kind
proceeding, it would provide an on-the-record hearing under Subpart G
for repository licensing, thereby creating certain public expectations
on the hearing procedures to be used for this particular proceeding. A
change in Commission position now to permit the use of more informal
procedures for authorizing construction of a HLW geologic repository
and issuance of a license to receive and possess HLW at a geologic
repository operations area would not advance public confidence in the
Commission's repository licensing process. Based on these
considerations, Sec. 2.310(e) of the proposed rule provided that the
initial application for authorization to construct a HLW repository,
and initial issuance of a license to receive and possess HLW at a
geologic repository operations area use the hearing procedures of
Subpart G. Section 2.310(e) of the proposed rule provided that
amendments to the construction authorization for the HLW repository,
and amendments to the application and/or license to receive and possess
HLW at a geologic repository operations area should be subject to the
same criteria as other proceedings in determining what hearing
procedures will be used. The Commission requested public comment on
these proposals.
In general, industry commenters opposed the use of Subpart G
procedures for initial authorization to construct a geologic repository
and issuance of the initial license to receive and possess HLW at a
geologic repository. One industry commenter stated that the nature and
subject matter of the HLW proceedings are similar to those involving
reactor licensees and there is no reason to apply different hearing
procedures; accordingly, the commenter argued that HLW proceedings
should be conducted under proposed Subparts L or N. Another commenter
indicated that the Commission should not prejudge the nature of the
issues that will be raised regarding the HLW repository and instead
should maintain flexibility to decide, based on the nature of
contentions at the time they are raised, what kind of hearing procedure
will best serve the interests of the stakeholders. Two citizen group
commenters, while not directly addressing the type of procedure to be
used in HLW repository authorizations, argued that it is inconsistent
for the Commission to provide formal hearings for HLW authorizations,
while moving to ``deformalize'' nuclear power plant and materials
licensing proceedings.
The Commission continues to believe that, while not required by
statute, any hearings in connection with the initial authorization to
construct a HLW geologic repository, and the initial license to receive
and possess HLW at a geologic repository operations area should be held
using Subpart G hearing procedures. None of the comments received on
this subject raised any new arguments or considerations that were not
already considered by the Commission in making its tentative
determination for the proposed rule. Accordingly, the hearing procedure
selection provision in Sec. 2.310(f) specifies the use of Subparts G
and J hearing procedures for the initial authorization to construct a
high-level radioactive waste geologic repository, and initial issuance
of a license to receive and possess high-level waste at a geologic
repository operations area. In response to a commenter, the Commission
removed a typographic error that resulted in a partial sentence in this
paragraph of the proposed rule. The Commission also modified the
language to clarify that Subpart G proceedings apply only to the
initial authorization to construct and to initial issuance of the
license to receive and possess HLW.
Complex Issues in Reactor Licensing. Section 2.310(c) of the
proposed rule included a criterion that would call for the use of the
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 requested public comments on
the appropriateness of this proposed ``numerous/complex issues''
criterion, and representative examples of the type of ``complex
issues'' that would benefit from the use of Subpart G hearing
procedures. The Commission also requested comment on whether this
criterion should be modified to instead provide for Subpart G hearings
in initial power reactor construction permit proceedings, initial
operating license proceedings, combined license issuance proceedings
under 10 CFR Part 52, Subpart C, and hearings associated with
authorizations to operate under a combined license under 10 CFR 52.103.
The nuclear industry commenters on this matter uniformly opposed
the proposed numerous/complex issues criterion. Several commenters
indicated that the proposed standard is too subjective and would be
difficult to interpret and apply, consequently leading to overuse of
this criterion. Another commenter argued that the criterion undermines
the advantages to be derived from less formal procedures and creates
additional opportunities for argument and litigation over procedural
matters. A third commenter suggested that it is not always true that
``very complex cases'' will benefit from formal hearings, pointing out
that it is the nature of the issues to be decided that determines
whether formal procedures are appropriate. No citizen group
specifically addressed the ``numerous/complex issues'' criterion,
although their general support for Subpart G procedures for all nuclear
power plant licensing proceedings implies their opposition to this
criterion.
Upon reconsideration, the Commission agrees that the proposed

[[Page 2205]]

``numerous/complex issues'' criterion may not be well-suited for
determining whether the procedures of Subpart G should be used in a
given proceeding. Rather, the Commission agrees with the thrust of the
commenters opposing this criterion that, inasmuch as neither the AEA
\13\ nor the APA require the use of the procedures provided in Subpart
G, they should be utilized only where the application of such
procedures are necessary to reach a correct, fair and expeditious
resolution of such matters. In the Commission's view, the central
feature of a Subpart G proceeding is an oral hearing where the
decisionmaker has an opportunity to directly observe the demeanor of
witnesses in response to appropriate cross-examination which challenges
their recollection or perception of factual occurrences. This also
appears to be the position of several citizen group commenters, judging
by the reasons given for their opposition to greater use of Subpart L
procedures. Hence, the Commission focused on criteria to identify those
contested matters for which an oral hearing with right of cross-
examination would appear to be necessary for a fair and expeditious
resolution of the contested matters. Common sense, as well as case law,
lead the Commission to conclude that oral hearings with right of cross-
examination are best used to resolve issues where ``motive, intent, or
credibility are at issue, or if there is a dispute over the occurrence
of a past event.'' See Union Pac. Fuels v. FERC, 129 F.3d 157, 164 (DC
Cir. 1997), citing La. Ass'n of Indep. Producers & Royalty Owners v.
FERC, 958 F.2d 1101, 1113 (DC Cir.1992). In Union Pacific Fuels, the
Court of Appeals for the DC Circuit concluded that a FERC rate
determination based upon a determination of the relative importance of
facilitating wellhead competition and preserving a party's risk
allocation was a policy issue (as opposed to a factual and credibility
issue) whose resolution would not be facilitated by a trial-type
hearing. Id. Courts reached similar conclusions in a number of other
cases. See, e.g., SBC Communications, Inc. v. FCC, 56 F.3d 1484, 1496-
97 (DC Cir. 1995) (disputed issues on legal and economic conclusions
concerning market structure, competitive effect, and the public
interest do not require oral evidentiary hearing), citing United States
v. FCC, 652 F.2d 72, 89-90 (DC Cir. 1980) (en banc); Penobscot Air
Servs., Ltd. v. FAA, 164 F.3d 713, 722-725 (1st Cir. 1999) (due process
does not require formal evidentiary hearing where historical facts are
undisputed, and agency decision involved interpretation and application
of statutes, regulations and policies); Chemical Waste Mgmt., Inc. v.
EPA, 873 F. 2d 1477, 1183-1185 (DC Cir. 1989) (due process does not
require formal evidentiary hearing where issues do not involve
determinations of witness credibility but instead turn on technical
data and policy judgements). In Califano v. Yamasaki, 442 U.S. 682
(1979), the U.S. Supreme Court held that where the relevant statute
requires an agency assessment of ``fault'' and a determination whether
recoupment of erroneous payments from a social security beneficiary
would be ``against equity and good conscience,'' an opportunity for an
oral hearing is required. The Supreme Court stated:
---------------------------------------------------------------------------

\13\ A commenter suggested that Section 181 of the AEA requires
that NRC hearings be ``on-the-record,'' and therefore subject to the
full panoply of procedures required by the APA for ``on-the-record''
adjudications. The Commission regards the commenter's analysis to be
incorrect. By its terms, Section 181 merely states that the APA
applies; nowhere does Section 181 explicitly state that
adjudications required by the AEA are to be considered ``on-the-
record'' adjudications for purposes of applying the APA. The APA
itself does not specify what adjudications must be ``on-the-
record.''

``[F]ault'' depends on an evaluation of ``all pertinent
circumstances'' including the recipient's ``intelligence * * * and
physical and mental condition'' as well as his good faith. 20 CFR
Sec. 404.507 (1978). We do not see how these can be evaluated
absent personal contact between the recipient and the person who
decides his case. Evaluating fault, like detrimental reliance,
usually requires an assessment of the recipient's reliance, usually
an assessment of the recipient's credibility, and written
submissions are a particularly inappropriate way to distinguish a
genuine hard luck story from a fabricated tall tale. See Goldberg v.
---------------------------------------------------------------------------
Kelly, 397 U.S., at 269.

Califano, 442 U.S. at 696-97.\14\
---------------------------------------------------------------------------

\14\ The Supreme Court also held that the 5th Amendment's Due
Process Clause does not require an oral hearing even where
credibility is in dispute. Califano v. Yamasaki, 442 U.S. 682, 696
(1979) (``[W]e do not think that the rare instance in which a
credibility dispute is relevant to a section 204 (a) claim is
sufficient to require the Secretary to * * * grant a hearing to the
few [claims]
that involve credibility.''). The Commission also notes
that, for the most part, constitutional Due Process considerations
are not at issue with respect to an intervenor-party's right to
cross-examination in NRC proceedings, inasmuch as governmental
deprivation of life, liberty or property of the intervenor-party are
not at issue in an NRC proceeding. On the other hand, in enforcement
proceedings where a licensee or individual may be subject of an
enforcement action depriving them of liberty or property, the
Commission believes that it is appropriate to provide the licensee
or individual an opportunity to request a Subpart G adjudicatory
hearing with cross-examination.
---------------------------------------------------------------------------

In sum, the Commission has concluded that the procedures in Subpart
G should be utilized in any nuclear power plant licensing proceeding
for the resolution of a contention involving: (1) Issues of material
fact relating to the occurrence of a past activity, where the
credibility of an eyewitness may reasonably be expected to be at issue,
and/or (2) issues of motive or intent of the party or eyewitness
material to the resolution of the contested matter. Section 2.310(d)
specifies the use of Subpart G hearing procedures in these
circumstances.
(2) Informal Hearing Procedures.
Expansion of Spent Fuel Storage Capacity. Subpart K contains
``hybrid'' hearing procedures for use in proceedings on the expansion
of spent fuel storage capacity at civilian nuclear power reactors.
A commenter suggested that proposed Sec. 2.310(d) should be
amended to specifically state that Subpart L applies to licenses or
amendments to expand spent fuel storage capacity unless a party
requests the use of Subpart K, or if all parties agree to apply Subpart
N. The Commission agrees with the commenter, inasmuch as Sec. 2.1101
specifically states that the procedures of Subpart K are to be used
``upon request of any party[.]'' Accordingly, appropriate changes have
been made to Sec. 2.310(e), which now provides that proceedings for
the expansion of spent fuel storage capacity at civilian nuclear power
reactors will be governed by Subpart L, unless a party requests the use
of Subpart K.
License Transfers. The Commission is retaining existing Subpart M,
which 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 hearing procedure selection provision in Sec.
2.310(g) of the final rule (Sec. 2.310(f) in the proposed rule)
specifies the use of Subpart M hearing procedures in license transfer
proceedings. No significant comments were received on this proposal.
Other Proceedings. Section 2.310(a) (Sec. 2.310(g) of the proposed
rule) applies the hearing procedures of the new Subpart L to all other
proceedings not specifically named, i.e., proceedings involving
hearings on the grant, renewal, licensee-initiated amendment or
termination of licenses and permits subject to 10 CFR parts 30, 32
through 35, 36 (the final rule adds part 36, which was erroneously
omitted in the proposed rule), 39, 40, 50, 52, 54, 55, 61, 70 and 72.
In addition, Subpart L procedures would be used in nuclear power plant
licensing proceedings for the resolution of contentions which do

[[Page 2206]]

not meet the criteria set forth in section 2.310(d) for use of Subpart
G hearing procedures. 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 is a significant change from current hearing practice for
reactor licensing matters. Under existing practice, proceedings on
applications for reactor construction permits, operating licenses and
operating license amendments have used the hearing procedures of
Subpart G. Similarly, in the Statement of 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; Dec. 13, 1991). The
hearing procedures of Subpart L could also be applied in hearings
involving enforcement matters if all parties agree.
As discussed earlier with respect to the Commission's proposed move
away from use of Subpart G trial-type hearing procedures, significant
comments were received that both supported and opposed this direction.
The Commission has decided, also for the reasons discussed earlier,
that greater use of more informal hearing procedures is desirable and
has decided to adopt in large part the proposed rule's provisions
expanding the use of Subpart L hearing procedures.
Subpart N--Fast Track Procedures. Proposed Sec. 2.310(h) would
apply the informal ``fast track'' hearing procedures of new Subpart N
in any proceeding (other than those designated in Sec. 2.310(a)-(g) 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 Commission requested
comments and suggestions on the appropriate criteria for the use of
Subpart N.
A citizen group commenter asserted that the Commission should not
adopt a ``fast track'' hearing procedure, arguing that to presuppose
that safety issues can be handled in a fast track proceeding ``invites
disaster.'' The Commission continues to believe there is a need for an
expedited hearing track to provide 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. The Commission views the
``fast track'' procedures of Subpart N as particularly useful for some
reactor operator licensing cases or for small materials licensees 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 commenter provided no basis for the
assertion that proper application of fast-track procedures would result
in erroneous resolution of public health and safety issues. Therefore,
the Commission declines to adopt the commenter's suggestion. The
hearing procedure selection provision in Sec. 2.310(h) specifies the
circumstances for which Subpart N hearing procedures may be used.

Reorganization of Sec. 2.310

The Commission has reorganized and changed the ordering of
paragraphs within Sec. 2.310 from that in the proposed rule. Paragraph
(a) (paragraph (g) in the proposed rule) states the general rule that,
unless otherwise determined through the application of paragraphs (b)
through (h), the listed proceedings are to be conducted under Subpart
L. Paragraphs (b) through (h) identify the type of proceeding (e.g.,
enforcement proceeding) and the subpart whose procedures are to be
used. Paragraph (i) indicates that in design certification rulemaking
where the Commission in its discretion decides to hold a hearing under
Sec. 52.51, the hearing is to be conducted under Subpart O
(legislative hearing). Paragraph (j) provides that in proceedings where
the Commission grants a petition certified to it under Sec. 2.335(b)
seeking permission to consider Commission rules and regulations in a
hearing, the Commission may, in its discretion, conduct a
``legislative'' hearing under Subpart O.

Section 2.311--Interlocutory Review

A commenter suggested that Sec. 2.311(d) be revised to clarify
that the only permissible grounds for challenging an order selecting a
hearing process is that the selection was ``erroneous,'' and that a 10-
day time limit should be placed on the ability to appeal the order
selecting a hearing procedure. While the Commission agrees that Sec.
2.311(d) should be clarified, the term, ``erroneous,'' does not
accurately describe the basis for an appeal of an order selecting
hearing procedures. Therefore, the Commission has instead decided to
modify Sec. 2.311(d) to refer to hearing procedure selections that
were ``selected in clear contravention of the criteria set forth in
Sec. 2.310.'' The Commission also agrees that a 10-day limit should be
adopted for filing of an appeal of an order selecting a hearing
procedure, and Sec. 2.311(d) has been appropriately modified in the
final rule.

Section 2.313--Designation of Presiding Officer, Disqualification,
Unavailability, and Substitution

As discussed earlier, the Commission decided to provide that
hearings conducted under Subparts G, J, K, L and N should be presided
over by either a single administrative law judge (rather than a single
administrative judge) or an Atomic Safety and Licensing Board, but that
hearings under Subparts M and O may be presided over by the Commission,
a single administrative law judge, a single administrative judge, an
Atomic Safety and Licensing Board, or other designated person. To
accomplish this, paragraph (a) is modified to include appropriate
references to an administrative law judge, and a sentence is added
which states that only the Commission may designate the presiding
officer in Subpart O legislative hearings. A related change to Sec.
2.4 adding a definition of ``presiding officer'' is discussed earlier.
The Commission is also deleting the provision in former Sec. 2.1207(a)
requiring the Chairman of the Atomic Safety and Licensing Board Panel
(Chief Administrative Judge) to appoint a single member of the Atomic
Safety and Licensing Board Panel as a presiding officer. As a result,
the Commission is changing the discretion of the Chief Administrative
Judge, and provides him or her with the discretion to choose either an
Atomic Safety and Licensing Board, or an administrative law judge for a
hearing conducted under Subparts G, J, K, L or N, and either an Atomic
Safety and Licensing Board, an administrative law judge, or
administrative judge for a hearing conducted under Subpart M.
The Commission is making other changes to simplify and clarify the
rule. Paragraphs (b) and (c) of the proposed rule, both of which
address disqualification, are combined into a single paragraph (b), and
redesignated as subparagraphs (b)(1) and (b)(2). In redesignated
paragraph (b), the phrase, ``board member,'' is changed to ``presiding
officer or member of the Licensing Board,'' in order to clarify the
criteria for withdrawal of a single presiding officer who is not a
member of a Licensing Board. Finally, paragraph

[[Page 2207]]

headings are added to each paragraph of Sec. 2.313.

Section 2.314--Appearance and Practice Before the Commission in
Adjudicatory Proceedings

A commenter proposed that Sec. 2.314(b) be amended to also refer
to the ``entity'' on whose behalf a representative appears. The
Commission agrees, and has modified Sec. 2.314(b) accordingly.

Section 2.315--Participation by a Person Not a Party

A commenter proposed that Sec. 2.315(d) be clarified that a person
who is not a party who wishes to file an amicus brief should file the
motion seeking leave to file together with the amicus brief. The
Commission agrees and paragraph (d) has been modified to make that
clear.
The Commission has also modified Section 2.315(a) to make clear
that a person, even if affiliated or represented by a party (e.g., a
member of an organization who is a party in a proceeding), may make a
limited appearance statement.

Section 2.319--Power of Presiding Officer

A commenter proposed that Sec. 2.319(d) provide the presiding
officer with the power to strike written records and oral testimony for
cumulative, irrelevant or unreliable material. The Commission agrees
with the apparently-underlying view of the commenter that the presiding
officer should have authority to limit and/or preclude, as applicable,
testimony or evidence that is cumulative, irrelevant or unreliable.
However, the Commission believes that Sec. 2.319(e), which permits the
presiding officer to ``restrict irrelevant, duplicative, or repetitive
evidence and/or arguments'' largely provides such authority to the
presiding officer. However, the Commission has added the word,
``unreliable'' to Sec. 2.319(e). Furthermore, because the type of
arguments, evidence, and information that may be limited or stricken by
the presiding officer are the same in Sec. 2.319(d) and (e), both
paragraphs have been conformed to use the same terminology, i.e.,
``irrelevant, immaterial, unreliable, duplicative or cumulative.''
The final rule includes two additional provisions in Sec. 2.319
which explicitly provide the presiding officer with authority to rule
on motions (analogous to the provision in former Sec. 2.730(e)), and
authority to issue orders necessary to carry out its responsibilities
and duties under this part.

Section 2.323--Motions

Proposed Sec. 2.323 incorporated the provisions in Sec. 2.730 in
Subpart G on the general form, content, timing, and requirements for
motions and responses to motions. The Commission requested public
comment on whether Sec. 2.323(a) should specify a time limit of ten
(10) days for filing of motions, beginning from the action or
circumstance that engenders the motion. One nuclear industry commenter
indicated that Sec. 2.323 should set time limits on the filing of
motions, preferably requiring them to be filed no later than ten (10)
days after the occurrence or circumstance from which the motion arises.
However, another nuclear industry commenter opposed setting a time
limit because of the ``broad nature'' of motions. The Commission has
decided that expeditious management of a hearing requires that motions
be filed reasonably promptly after the underlying circumstances occur
which engender a motion. Accordingly, a ten (10) day limit for filing
motions is included in the final version of Sec. 2.323(a).
Proposed Sec. 2.323(e) included a standard for evaluating motions
for reconsideration, viz., 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'' (this standard is also reflected in proposed Sec. 2.344(b)).
The Commission requested public comment on whether this ``compelling
circumstances'' standard in the proposed rule should be adopted or
eliminated from the final rule. A commenter supported inclusion of a
``compelling circumstance'' standard for reconsideration embodied in
proposed Sec. 2.323(e). Another commenter instead argued that the
current standard for motions for reconsideration, as defined by NRC
case law, should be retained. The existing standard allows for motions
requesting the presiding officer to reexamine existing evidence that
may have been misunderstood or overlooked, or to clarify a ruling on a
matter. The Commission has decided that the ``compelling
circumstances'' standard should be utilized for motions for
reconsideration. This standard, which is a higher standard than the
existing case law, is intended to permit reconsideration only where
manifest injustice would occur in the absence of reconsideration, and
the claim could not have been raised earlier. In the Commission's view,
reconsideration should be an extraordinary action and should not be
used as an opportunity to reargue facts and rationales which were (or
should have been) discussed earlier.
Finally, the proposed rule addressed the referral of rulings and
certified questions by the presiding officer to the Commission. With
regard to referrals, proposed Sec. 2.323(f) would 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 stating that issues or rulings involving novel
questions which would benefit from early Commission guidance should be
certified to the Commission. No comments were received on this
provision, and the Commission adopts Sec. 2.323(f) without change.

Section 2.327--Official Recording; Transcript

In response to a commenter, in paragraph (c) the word,
``therefore,'' is changed to ``therefor.''

Section 2.332--General Case Scheduling and Management

Section 2.332 of the proposed rule would have required 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 ground rules for the control and management of
the proceeding. The proposed rule also addressed integration of the NRC
staff's preparation of its safety and environmental review documents
into the hearing process schedules. The Commission requested comment on
the case management provisions proposed in this section and welcomed
suggestions for additional case management techniques.
Commenters proposed a variety of requirements: That the presiding
officer provide copies of scheduling orders and modifications to
scheduling orders to the Commission; that the relative resources of the
parties be considered under Sec. 2.332(b); that the presiding officer
hold scheduling hearings within thirty (30) days of the commencement of
every hearing; and a process for appeal directly to the Commission if a
petitioner believes that a presiding officer is grossly mismanaging a
hearing.
In the Commission's view, these suggestions are either unnecessary,
or would have the Commission become too

[[Page 2208]]

closely involved in the detailed management of individual hearings. For
example, the Commission does not believe that it should be monitoring
on a day-by-day basis the scheduling orders of the presiding officer;
the Commission has already provided for time limits and suggested
schedules, as applicable, in Part 2. Any party that is aggrieved by the
scheduling determinations of a presiding officer or by the failure of a
presiding officer to adhere to the general scheduling guidance of the
Commission may always submit an appropriate motion to the Commission.
Accordingly, the Commission declines to adopt these case management
suggestions.
Section 2.332(a)(1) was corrected in the final rule to indicate
that the presiding officer's scheduling order may also modify the times
for disclosure under Sec. 2.336.

Section 2.333--Authority of the Presiding Officer To Regulate Procedure
in a Hearing

In response to a comment that the Commission's Policy Statement on
the conduct of adjudications should be codified, the Commission has
determined that a requirement for filing of cross-examination plans in
conjunction with requests/motions to conduct cross-examination should
be added to the generally-applicable provisions of Subpart C.
Accordingly, Sec. 2.333(c) has been added to the final rule, requiring
the presiding officer to require each party or participant who wishes
to conduct cross-examination to file a cross-examination plan. The
provisions in Sec. 2.333(c) were drawn from Sec. 2.711(c). In
addition, the Commission added paragraph (d) in the final rule
requiring the presiding officer to ensure that each party or
participant who is permitted to conduct cross-examination conducts its
cross-examination in conformance with its cross-examination plan.
Finally, the Commission modified paragraph (a) to authorize the
presiding officer to strike unreliable or immaterial evidence.

Section 2.334--Schedules for Proceedings

In response to a commenter, the word ``residing'' was changed to
``presiding'' officer.

Section 2.336--General Discovery

In response to comments, the Commission modified Sec. 2.336(a)(1)
to make clear that the names of only those experts whom the party may
rely upon as a witness need be disclosed. Paragraph (a)(4) was deleted,
inasmuch as the scope of documents to be provided under the proposed
rule, viz., those that ``provide direct support for, or opposition to,
the application or other proposed action that is the subject of the
proceeding,'' extended beyond the scope of the contested issues in the
proceeding. On the other hand, paragraph (b)(5) was revised to clarify
that the NRC staff must provide a list of ``otherwise-discoverable''
documents for which the NRC staff asserts a claim of privilege or
protected status.
In reviewing Sec. 2.336, the Commission determined that the
requirement in paragraph (a)(2) for disclosures of persons whom a party
believes ``is likely to have discoverable information relevant to the
admitted contentions'' is unnecessary, inasmuch as further discovery
under Subpart C is not available. Accordingly, the final rule does not
include this disclosure provision (however, this disclosure requirement
is retained in Sec. 2.704(a)(1) of Subpart G, inasmuch as Subpart G
provides opportunities for additional discovery).
The Commission modified Sec. 2.336(b) to make clear that the NRC
staff's obligations with respect to a hearing file ordinarily do not
apply to proceedings conducted under Subpart J. In Subpart J, the
hearing file would essentially duplicate the function of the electronic
docket and the LSN; hence there is no reason for the NRC staff to also
maintain a hearing file.

Section 2.337--Evidence at a Hearing

A commenter suggested that the provisions of Sec. 2.711(e), (f),
(g), (h) and (i) of the proposed rule should be relocated to Subpart C,
inasmuch as these are general provisions governing evidence which apply
to all hearing tracks. Proposed Sec. 2.711(e) (f), (g), (h) and (i)
were drawn from former Sec. 2.743(c) through (f), (g) and (i), and
address matters relating to evidence, including admissibility,
objections, and offers of proof. The Commission generally agrees with
the commenter, and has relocated the provisions in proposed Sec. 2.711
from Subpart G to Subpart C in a new Sec. 2.337 (with proposed
Sec. Sec. 2.337 through 2.347 being renumbered in the final rule).
However, in response to comments submitted on both the 1998 Policy
Statement on adjudicatory procedures and the proposed rule expressing
concerns about delays in hearings associated with the submission of
SERs and EISs, the Commission has reconsidered its current regulatory
provisions with respect to NRC staff documents, including the provision
in proposed Sec. 2.711(i). As discussed earlier, commenters on the
1998 Policy Statement were concerned that late completion of the SER
and EIS could result in delays in discovery and the conduct of the
hearing. In addition, a nuclear industry commenter on the proposed rule
suggested that the regulations should specifically direct that final
NRC staff documents not be required before adjudication of safety and
environmental contentions; and that the Commission establish procedures
for scheduling orderly and final resolution of contested health and
safety and environmental issues in adjudicatory proceedings independent
of the NRC staff's scheduled completion of issuance of an SER or EIS.
The commenter argued that, if necessary, the NRC staff could be
directed to prepare statements of position or ``partial'' SERs or EISs
on contested issues.
The Commission recognizes that the language of proposed Sec.
2.711(i) (former Sec. 2.734(g)), may be read to require the submission
of the SER and EIS in a proceeding even if there are no contentions
bearing on one of those documents, or if the NRC staff was prepared to
proceed on a safety matter in advance of completion of a final SER. The
Commission also recognizes that, but for the language of that
paragraph, the staff could prepare testimony and take a final position
on contested safety matters if its safety review has been completed in
areas relevant to those contested matters. In this fashion, contested
safety issues may be resolved without a completed SER. On the other
hand, the NRC staff's practice has been to prepare relatively complete
SERs without preparation of separate documents that specifically
address matters in controversy. Nor should SERs be required to address
matters in controversy as such, inasmuch as such a function is
extraneous to the NRC Staff's primary authority and responsibility,
viz., to review and judge the public health and safety of the
applicant's proposed action.
By contrast, a final EIS is ordinarily necessary before the NRC
staff may take a position on matters in controversy related to the
environment and/or the adequacy of the EIS under the current
regulations in 10 CFR Part 51. Inasmuch as the adequacy of the EIS is a
matter which may be a subject of contention in a licensing proceeding,
the EIS must be a part of the hearing record whenever the adequacy of
the EIS is a matter in controversy in a proceeding.
Nonetheless, the Commission recognizes the potential for hearing
delays while the NRC staff prepares an SER or EIS to support its
position as a party in a proceeding. Therefore, the Commission has
decided to address concerns over potential hearing delays

[[Page 2209]]

due to the need for staff documents as follows.
First, to avoid delays where litigation of a contention is
dependent upon some NRC staff action, the Commission will direct the
NRC staff to develop internal management guidance and procedures to
support timely NRC staff participation in hearings, including early
preparation of testimony and evidence to support the NRC staff's
position on a contention/controverted matter.
Second, the Commission is including in Sec. 2.337(g) new language
which supersedes the language of proposed Sec. 2.711(i) (former
2.743(g)) addressing the admission into evidence of NRC staff
documents. Section 2.337(g)(1) provides that in proceedings involving
an application for a facility construction permit, the NRC staff shall
offer into evidence the ACRS report, the NRC's safety evaluation, and
any environmental impact statement (EIS) prepared under 10 CFR Part 51.
The need for these documents in every production and utilization
facility construction permit proceeding stems from the requirement in
Section 189.a.(1)(A) for a mandatory hearing for construction permits.
In proceedings involving applications for other than a construction
permit for a production or utilization facility, where the NRC staff is
a party, Sec. 2.337(g)(2) requires the NRC staff to offer into
evidence any ACRS report on the application, at the discretion of the
NRC staff either the safety evaluation prepared by the staff and/or the
NRC staff statement of position on the matter in controversy provided
to the presiding officer (see the fourth item below), and the EIS or
environmental assessment (EA) if there are contentions/controverted
matters with respect to the adequacy of the EIS or EA. This requirement
applies to, for example, licensing hearings conducted under Subpart L,
and all hearings conducted under Subpart G. By contrast, if the NRC
staff is not a party in such proceedings, the NRC staff shall offer
into evidence, and provide (with the exception of any ACRS report) one
or more sponsoring witnesses, for any ACRS report on the application,
at the discretion of the NRC staff the safety evaluation prepared by
the NRC staff and/or the NRC staff statement of position on the matter
in controversy provided to the presiding officer, and the EIS or
environmental assessment (EA) if there are contentions/controverted
matters with respect to the adequacy of the EIS or EA.
Third, the Commission has made a number of changes to Sec. Sec.
2.1202 and 2.1210 to clarify the distinction between the presiding
officer's decisionmaking on matters in controversy in Subpart L
proceedings and the NRC staff's separate review of the proposed action,
and to facilitate the presiding officer's timely resolution of
contested matters in those Subpart L proceedings in which the NRC staff
has chosen not to participate as a party. Section 2.1202(a) has been
modified to require the NRC staff to provide a ``statement of
position'' on matters in controversy as part of its notice to the
presiding officer and parties of the NRC staff's action on the
application or the underlying regulatory matter which is the subject of
the hearing. This ensures that where the NRC staff takes an action
before the presiding officer issues its decision (as the NRC Staff is
authorized to do under Sec. 2.1202(a)), the presiding officer and
parties have the benefit of the NRC staff's views and explanation as to
why, notwithstanding the pendency of matters in controversy, the NRC
staff believes it is safe to take the action. It also provides
information that may be useful to the presiding officer for his or her
determination on whether to direct the staff to participate as a party
on one or more contentions. To ensure that the Commission is the final
agency arbiter where a presiding officer's decision is inconsistent
with the NRC staff's notice of position and action under Sec.
2.1202(a) and the NRC has not participated as a party, Section
2.1210(a)(ii) has been added requiring the Commission to review a
presiding officer's initial decision if it is inconsistent with the NRC
staff's action taken under Sec. 2.1202(a). Section 2.1403 was revised,
parallel with Sec. 2.1202, to ensure that the presiding officer is
aware of the NRC staff's action on the application/contested matter.
However, neither Sec. Sec. 2.1406 nor 2.1407 were revised to be
parallel with Sec. 2.1210(a)(ii), inasmuch as under Sec. 2.1406(b),
the presiding officer's decision in a Subpart N proceeding must be
transmitted to the Commission for its sua sponte review. Hence, in
Subpart N the Commission has the opportunity to review any
inconsistency between the NRC staff's action and the presiding
officer's decision, and take any necessary action, without awaiting an
appeal by a party.
Finally, Sec. 2.1210 is modified to add a new paragraph (e), and
Sec. 2.1407 is modified to add a new paragraph (c), in order to
clarify that once an initial decision becomes final, the Secretary
shall transmit the decision to the NRC staff for action in accordance
with the decision.

Section 2.338--Settlement of Issues; Alternative Dispute Resolution
(Sec. 2.337 in Proposed Rule)

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); Policy Statement on Alternative
Means of Dispute Resolution (57 FR 36678; Aug. 14, 1992). In this
rulemaking, the Commission considered expanding the role of alternative
dispute resolution (ADR) in NRC adjudications. ADR can be defined as
any technique that results in the conciliatory resolution of a dispute,
including facilitation, mediation, fact finding, mini-trials, 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 on Alternative
Dispute Resolution chaired by the Attorney General (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,
its view at the proposed rule stage was 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.
In addition to the foregoing, in response to suggestions by several
workshop participants, the Commission indicated that it was considering
providing further guidance on the use of alternative dispute resolution
(ADR) as part of its hearing procedures.
In considering expanding the role of ADR in NRC adjudications, the
Commission's focus is consistent with the NRC's continuing
participation in the activities of the Interagency Working Group, as
well as with the Administrative Dispute Resolution Act

[[Page 2210]]

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. Nonetheless, the Commission recognizes
that because of the Commission's statutory responsibility under the AEA
to make required public health and safety findings, the use of ADR may
not be appropriate in all circumstances.
Section 2.337 of the proposed rule would not only have consolidated
the former provisions in part 2 on settlement (10 CFR 2.203, 2.759,
2.1241), it would also have provided guidance on the use of settlement
judges as mediators in NRC proceedings. The Commission previously
endorsed the appropriate use of settlement judges in Rockwell
International Corp., CLI-90-05, 31 NRC 337 (1990). The proposed rule
was 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 sought public comment on the text of proposed Sec.
2.337 as well as on the following questions:
[sbull]
Should the Commission formally provide for the use of ADR
in its hearing process?
[sbull]
Should the use of ADR be codified in the Commission's
regulations or provided for in some other manner, such as a policy
statement?
[sbull]
At what stage of the hearing process should an opportunity
for ADR be provided?
[sbull]
What types of issues would be amenable to resolution
through ADR? What types of issues should not be considered for
resolution through ADR?
[sbull]
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?
[sbull]
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?
A wide range of comments were received on ADR. Most commenters
supported Commission efforts to encourage the use of ADR, but all
indicated that ADR should not be required. While a commenter indicated
that a proceeding should be suspended during ADR, other commenters
argued that the use of ADR should not upset the hearing schedule. The
Commission continues to believe 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,
the Commission agrees that parties should not be forced to use ADR, and
the final rule continues to make the use of ADR subject to voluntary
agreement of all parties to any given contention. The Commission also
believes that hearings should continue while ADR is ongoing, unless all
parties agree to suspend the hearing and present an appropriate motion
to the presiding officer. Thus, Sec. 2.338 remains largely unchanged
from the text of proposed Sec. 2.337.
Section 2.337(i) of the proposed rule provided that a settlement or
compromise must be embodied in a decision or order ``settling and
terminating the proceeding.'' However, some settlements or compromises
may resolve only some of the contentions/controverted matters, and may
not result in termination of the proceedings. Accordingly, the
Commission removed that phrase in Sec. 2.338(i) of the final rule.

Section 2.340--Initial Decision in Contested Proceeding (Sec. 2.339 in
Proposed Rule)

A commenter proposed that the Commission incorporate into this
section the requirement that a presiding officer refer to the
Commission for its approval the presiding officer's determination under
Sec. 2.340 (formerly Sec. 2.760a) that a matter not placed into
controversy by the parties constitutes a serious safety, environmental,
or common defense and security matter which should be examined and
decided by the presiding officer. The Commission agrees that the
Commission's practice should be codified into part 2, since this is
consistent with the direction of the Commission as announced in the
Policy Statement of Conduct of Adjudicatory Proceedings (63 FR 41872;
August 5, 1998) \15\ which is reflected in Sec. 2.340(a).
---------------------------------------------------------------------------

\15\ As indicated in the Policy Statement, the Commission's
policy directive is based upon the Commission's action in Texas
Utilities Generating Co. (Comanche Peak Steam Electric Station,
Units 1 and 2), CLI-81-24, 14 NRC 614 (1981). 63 FR 41872, 41874
(third column).
---------------------------------------------------------------------------

A public citizen commenter argued that proposed Sec. 2.342 (final
Sec. 2.343), which provides for oral argument on a petition for review
in the Commission's discretion, is redundant to proposed Sec.
2.340(c)(1), and therefore should be deleted. The Commission agrees
that these two provisions are redundant, but has instead decided to
delete Sec. 2.340(c)(1) to maintain consistency with the organization
of Sec. 2.331.

Section 2.341--Review of Decisions and Actions by Presiding Officer
(Sec. 2.340 in Proposed Rule)

A commenter pointed out that proposed Sec. 2.340(b)(1), which
provided that the filing of a petition for review is mandatory before a
party will be deemed to have exhausted its administrative remedies for
purposes of seeking judicial review, is inconsistent with current case
law. The Commission does not agree with the commenter's view of the
current law. However, the complex jurisdictional issues raised need not
be resolved here. The Commission has simply modified Sec. 2.341(b)(1)
to provide that unless otherwise authorized by law, a party must file a
petition for Commission review before seeking review of an agency
action. Analogous changes were also made to Sec. Sec. 2.1212 and
2.1407.
In response to a separate comment that proposed Sec. 2.340(c)(1)
and Sec. 2.342 were redundant with respect to addressing the subject
of oral arguments, the Commission removed the reference to oral
arguments in Sec. 2.341(c)(1) of the final rule. The last sentence in
Sec. 2.341(d) has been corrected to refer to the standard for
reconsideration in Sec. 2.323(e).

Section 2.348--Separation of Functions (Sec. 2.347 in Proposed Rule)

The proposed rule contained a slight modification to paragraph
(b)(3) intended to reflect the use of ``plain English.'' The Commission
has decided that the language in former Sec. 2.781(b)(3), from which
this provision was drawn, is sufficiently clear and has decided to use
that language in the final rule.

Section 2.390--Public Inspections, Exemptions, Requests for Withholding

The Commission corrected Sec. 2.390 (former Sec. 2.790) to
include a footnote in paragraph (a) that was inadvertently

[[Page 2211]]

removed from former Sec. 2.790(a) by the Office of the Federal
Register. The footnote provides that ``final NRC records and
documents'' do not include handwritten notes, or draft records and
documents.
(g) Subpart G.
The Commission proposed revising Subpart G by consolidating the
provisions of general applicability in new Subpart C. As a result,
Subpart G would contain only the provisions for the conduct of formal
adjudications. Former Sec. 2.705, which provides for the filing of an
answer to a notice of hearing, is removed in the final rule; experience
has shown this provision to be largely superfluous. For the same
reason, former Sec. 2.751a, which provides for a special prehearing
conference in connection with construction permit and operating license
proceedings, and former Sec. 2.761a, which provides for separate
hearings and decisions, are removed. The provisions of former Sec.
2.752 are redesignated as Sec. 2.318 in order to provide for the
conduct of a prehearing conference to accomplish the same purposes as
those in former Sec. 2.751a. The provisions of former Sec. 2.765,
immediate effectiveness of an initial decision directing issuance or
amendment of a license under part 61 of this chapter, are relocated to
the revised Subpart L, which sets forth the provisions applicable to
informal proceedings such as those under part 61.
The Commission requested public comment on whether Subpart G should
be used in all initial power reactor construction permit and operating
license proceedings, rather than in such proceedings involving a
``large number'' of ``complex issues.'' The public comments received
and the Commission's resolution of this matter are addressed earlier in
``Complex Issues in Reactor Licensing'' under the discussion of Sec.
2.310.

Section 2.703--Examination by Experts

In response to comments suggesting that cross-examination must be
controlled, the Commission has decided to add an additional requirement
that a party seeking permission to use an expert to conduct cross-
examination should file a proposed cross-examination plan in accordance
with Sec. 2.711(c). Filing of a proposed cross-examination plan would
assist the presiding officer in determining whether the expert proposed
to conduct cross-examination is capable of doing so in a manner that
will facilitate the development of a concise and adequate record on
contested matters.

Section 2.704--Discovery: Required Disclosures

A commenter noted that paragraph (b)(3) failed to include the
words, ``30 days after,'' from Rule 26 of the Federal Rules of Civil
Procedure, and that these words should be added to the final rule. The
Commission agrees that these words should be included, and the phrase,
``the disclosures must be made within thirty (30) days after'' has been
added to the final version of Sec. 2.704.

Section 2.705--Discovery--Additional Methods

A commenter noted that a footnote in proposed Sec. 2.706(b)(1) did
not appear to be relevant to that section. The footnote has been
designated as a footnote to Sec. 2.705(g)(4), and a typographic error
corrected in the footnote.

Section 2.709--Discovery Against NRC Staff

The Commission has clarified Sec. 2.709 to make clear that the
Executive Director for Operations (EDO) may delegate his
responsibilities to respond and object to discovery requests, and to
respond to discovery orders issued under Sec. 2.709(e) and (f) by a
presiding officer, and that a presiding officer's discovery order to
the EDO should reflect the authority and discretion of the EDO to so
delegate his responsibilities. The final rule also corrects a reference
to Sec. 2.704(c) and (e) in the proposed rule; the correct reference
should be to Sec. 2.705(c) and (e), which contains the provisions
requiring protective orders and the duty to update earlier discovery
responses.

Section 2.710--Summary Disposition Motions

Section 2.710 of the proposed rule would have expanded the
presiding officer's discretion not to consider a summary disposition
motion unless he or she determines that resolution of the motion will
serve to expedite the proceeding. The Commission requested comment on
whether the proposed revision, or some other standard, should be
adopted. Two comments were received on proposed Sec. 2.710 in this
regard. One commenter stated that although the presiding officer should
be provided some discretion to rule on motions for summary disposition,
as a general matter the presiding officer should rule on the motion
unless delay would result. Another commenter opposed the proposed rule,
arguing that rather than allowing such discretion the Commission should
expand the use of summary disposition to resolve issues even where
there is a genuine issue of material fact.
The Commission continues to believe that in many instances summary
disposition involves an additional delaying step in a proceeding, and
that a presiding officer's consideration of such motions at a point in
time close to the scheduling of a hearing can divert all parties' and
the presiding officer's attention from a hearing. These considerations
in part underlies the Commission's admonition in its 1998 Policy
Statement on Conduct of Adjudicatory Proceedings that Licensing Boards
should forego the use of motions for summary disposition except upon a
finding that such a motion will likely substantially reduce the number
of issues to be decided, or otherwise expedite the proceeding. While
the final rule remains generally unchanged from the proposed rule in
terms of codifying that admonition (although moved to paragraph (d) of
the final rule), the Commission also believes that if summary
disposition motions are to be used, they must be filed soon after the
end of discovery so that the presiding officer may have an opportunity
to review the motions and advise the parties whether the motions will
be granted in whole or part. Therefore, the Commission is adopting a
number of additional provisions that will govern the filing and
determination of summary disposition motions, in order to ensure that
such motions serve to expedite the proceeding and do not distract the
parties' and the presiding officer's attention from preparation for the
oral hearing.
Section 2.710(a) of the final rule requires that all summary
disposition motions must be filed no later than twenty (20) days after
the close of discovery under Sec. Sec. 2.702 through 2.708. By
requiring a party to file its summary disposition motion soon after
discovery is completed, the presiding officer will be able to determine
whether the hearing may be scheduled in the near future (if no motions
are submitted), or whether allowances must be made for the submission
and resolution of such motions (c.f., Sec. 2.329, with respect to a
prehearing conference, and Sec. 2.332, requiring the presiding officer
to issue a scheduling order). The Commission believes that twenty (20)
days is sufficient time to assess information obtained as the result of
discovery and prepare summary disposition motions.
The Commission is also adopting a provision in Sec. 2.710(e)
requiring the presiding officer to issue an order no later than forty
(40) days after any responses to the summary disposition motion are
filed, indicating whether the motion is granted or denied, together
with the bases for the presiding officer's

[[Page 2212]]

determination. The Commission is retaining the provisions set forth in
the final two sentences of proposed Sec. 2.710(a) allowing the
presiding officer not to consider a summary disposition motion which
the presiding officer believes would not expedite the proceeding if the
motion were granted, and to either summarily dismiss or hold in
abeyance a summary disposition motion filed shortly before or during
the oral hearing, if the presiding officer believes that substantial
resources must be diverted to adequately respond to the motion. The
provisions, however, have been moved into new paragraph (d)(1) of Sec.
2.710.
(h) Subpart I.
The Commission is adopting a conforming change to Sec. 2.901to
specify that the procedures for handling Restricted Data and National
Security Information in Subpart I apply to proceedings under subparts
G, J, K, L, M, and N. Section 2.901, which specified that Subpart I
procedures apply only to proceedings conducted under subpart G, was
adopted in 1962, and underwent minor changes in 1976 but was not
modified to reflect the Commission's adoption of subparts J, K, L, and
M. The procedures in Subpart I for handling Restricted Data and
National Security Information are generic and appropriate for use in
NRC adjudicatory proceedings. However, it is highly unlikely that the
Commission will choose to hold Subpart O legislative-style hearings
requiring the handling and consideration of Restricted Data and
National Security Information. Accordingly, the final rule specifies
that Subpart I procedures will apply to proceedings under subparts G,
J, K, L, M, and N. However, should the Commission determine that access
to Restricted Data and National Security Information should be provided
in Subpart O legislative-style hearings, the Commission may specify the
use of Subpart I procedures under Sec. 2.1502(c)(6).
In a conforming change, the definition of a ``party'' in Sec.
2.902(e) is amended to refer to Sec. Sec. 2.309 (former Sec. 2.714)
and 2.315 (former Sec. 2.715).
(i) Subpart J.
The Commission proposed a number of changes to Sec. Sec. 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 to: (1) Correct references
to rules of general applicability in existing Subpart G that are being
transferred to Subpart C, and (2) eliminate redundant or duplicate
provisions in Subpart J that would be covered by the generally
applicable provisions in Subpart C.
One commenter suggested that Sec. 2.1013(b) be clarified to
provide that exhibits used in connection with cross-examination need
not be tendered in advance to opposing parties. The Commission declines
to adopt the commenter's suggestion. The Commission has adopted in Part
2 the principle of broad disclosure of relevant documents and
information to all parties. That principle is manifested in Subpart J
by the requirement for the Licensing Support Network (LSN), in which
the parties are to file certain documents as described in Subpart J,
including Sec. Sec. 2.1003 and 2.1004. Thus, all documents that may be
used in cross-examination must be disclosed to other parties. However,
nothing in Subpart J requires that such documents must be identified as
to their intended use by a party in the proceeding. Therefore, an
exhibit to be used in cross-examination need not be identified as such,
nor must that exhibit be marked to show the portions of the exhibit to
be used in cross-examination. Accordingly, all parties will have access
to all relevant documents, including those to be used in cross-
examination, without knowing which document (if any), or portion
thereof, may be used in cross-examination.
The Commission has adopted the proposed revision to Subpart J with
some additional conforming and correcting changes. Section 2.1000 is
revised to provide for consistent organization and terminology among
all scope statements in part 2. In addition, Sec. 2.1000 is revised to
add references to provisions of Subparts C and G, where existing Sec.
2.1000 erroneously omitted reference to the parallel provisions in
former Subpart G. Section 2.1000 now references Sec. Sec. 2.301 and
2.701, which authorize the Commission to use alternative procedures to
the extent that the conduct of military or foreign affairs functions
are involved; Sec. 2.317(a), which permits separate hearings in a
proceeding; Sec. 2.324, which authorizes the presiding officer to
determine the order of procedure; and Sec. 2.710, which addresses the
use of summary disposition motions.
Conforming changes are made in Sec. 2.1001 to provide correct
references to Sec. Sec. 2.309, 2.315, and 2.1021, and to use
consistent terminology. Section 2.1006 is conformed to refer to Sec.
2.390. Section 2.1018 is conformed to refer to Sec. 2.708. A
conforming change is made to Sec. 2.1022 to correct a reference to the
general provisions governing late-filed contentions in Sec. 2.309(c).
Finally, the newly-adopted provisions in Subpart J are changed to be
consistent with Subpart C of this final rule and newly-adopted 10 CFR
Part 63 (66 FR 55732; Nov. 2, 2001), by referring to a ``construction
authorization'' for a HLW geologic repository, and a ``license to
receive and possess'' HLW at a HLW geologic repository.
(j) Subpart K.
The Commission proposed several simple changes to Sec. Sec. 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. The proposed changes
were 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.
A commenter argued that, because the first spent fuel pool capacity
expansion license amendment case to use Subpart K, Carolina Power &
Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-12, 51 NRC 247
(2000) (Shearon Harris), took over two (2) years to reach resolution,
many changes should be made to Subpart K which are not being made at
this time. Specifically, the commenter suggested that Sec. 2.1113(a)
should allow issues of whatever nature that are identified for oral
argument to be heard together; Sec. 2.1113(b) should allow experts who
prepare affidavits in support of written submissions to respond
directly to questions posed by the hearing examiner at the oral
argument; Sec. 2.1115(a) should establish firm deadlines after oral
argument for the presiding officer to rule on whether any issues remain
to be heard in an adjudicatory hearing, and all issues admitted should
be heard together; and Sec. 2.1115(b) should specify that the party
raising an issue of fact or law for consideration has the burden of
proof as to whether the issue meets the standards for holding such a
hearing.
The Commission does not agree with the commenter's suggestion that
all issues be heard together at oral argument, and resolved in an
adjudicatory hearing if one is held. The commenter did not explain how
the lack of provisions in Subpart K addressing these matters resulted
in unnecessarily prolonging the time needed for resolution in Shearon
Harris.
On the other hand, the Commission agrees with the commenter's
observation that ``restrictions on oral argument''--presumably the fact
that it is inappropriate for attorneys

[[Page 2213]]

representing their clients to make technical presentations--can make it
difficult for parties to respond to interrelated technical issues.
However, the Commission disagrees with the commenter's apparent
proposed solution, viz., allowing experts to respond directly to
questions posed by the presiding officer at the oral hearing. Rather
than adapting a process to allow oral testimony by experts which would
substantially depart from the statutory mandate behind Subpart K, the
Commission has adopted an approach which provides an opportunity for
each party to provide written responses to the written summaries and
supporting facts and data submitted by the other parties. Accordingly,
Sec. 2.1113 has been modified in the final rule to provide that each
party must submit its summary of all facts, data and arguments,
together with the underlying facts and data, twenty-five (25) days
before the oral hearing, rather than fifteen (15) days as provided in
the proposed rule. Ten (10) days before the oral argument, each party
may, but is not required to, submit a reply limited to addressing the
written summaries, facts, data and arguments submitted by any of the
other parties.
The Commission also agrees with the commenter that Subpart K should
be clarified to state that while the applicant for the spent fuel pool
capacity expansion license amendment bears the ultimate burden of proof
(risk of non-persuasion) on admitted contentions, the proponent of an
adjudicatory hearing bears the burden of demonstrating that the
criteria in Sec. 2.1115(b) have been met, and, accordingly, that an
adjudicatory hearing should be held. This clarification, which is
consistent with the Licensing Board's decision in Shearon Harris, 51
NRC at 254-55, is reflected in new Sec. 2.1117. The text of proposed
Sec. 2.1117, ``Applicability of other sections,'' is now included in
new Sec. 2.1119.
The Commission made conforming and correcting changes in Sec.
2.1103 to provide for consistent organization and terminology among all
scope statements in Part 2.
(k) Subpart L.
The NRC's experience with the informal hearing procedures of the
existing Subpart L has shown that some aspects are cumbersome and
inefficient in the development of a record. To address these problems,
the Commission proposed replacing the existing Subpart L in its
entirety with new provisions that would: (1) Shift the focus of Subpart
L to informal oral hearings, (2) require submission of contentions, and
(3) provide the opportunity to pose questions indirectly to witnesses
by proffering proposed questions to the presiding officer. The
Commission requested comment on this shift in emphasis to more informal
hearings conducted under the proposed revised procedures of Subpart L.
A large number of comments were received on Subpart L. Nearly all
the comments expressed displeasure with Subpart L, either in its
current form or as proposed to be reconstructed. However, the reasons
for the discontent fell into two general categories. Citizen groups and
private individuals argued that Subpart L, by moving further away from
the procedures embodied in Subpart G, will effectively eliminate public
participation by substituting a more burdensome and expensive
procedure. The proposed elimination of cross-examination was also
identified as objectionable by this group of commenters. By contrast,
industry commenters generally not only supported the elimination of
cross-examination, but two commenters argued that the Commission should
go further by eliminating the requirement for an oral hearing. Under
their proposal, an oral hearing would be held only if the presiding
officer determined, after reviewing the written presentations, that an
oral hearing is necessary.
The Commission believes that its Subpart L strikes the appropriate
balance between public confidence in the Commission's hearing process,
and the need to expeditiously resolve contested matters. As discussed
earlier with respect to the use of informal procedures, the Commission
does not believe that a large number of NRC hearings involve factual
disputes for which the expanded panoply of discovery procedures in
Subpart G are necessary. Nor does the Commission believe that there are
a large number of hearings where the credibility of eyewitnesses is an
issue with respect to either the occurrence of a material past event,
or the motive or intent of a party, such that cross-examination is an
appropriate tool for issue resolution. On the other hand, the
Commission believes that if the presiding officer has the opportunity
to examine the witnesses, the presiding officer will be able to gain a
better understanding of the testimony, and efficiently oversee the
development of evidence relevant to the resolution of the contested
matter in the hearing. Written follow-up questions propounded by a
presiding officer are, at best, an inefficient substitute for the
``back-and-forth'' ability of a presiding officer to question witnesses
orally, and experience indicates consumes more time and resources of
the presiding officer and parties. For these reasons, the Commission
concludes that an oral hearing should be provided for in a Subpart L
proceeding, but that cross-examination should ordinarily not be
permitted.
Although cross-examination by the parties generally will not be
permitted in Subpart L proceedings and all of the more informal hearing
tracks, the Commission emphasizes that the ultimate burden of proof
(risk of non-persuasion) remains with the applicant and/or the
proponents of particular actions in these proceedings. Moreover, a
party sponsoring a contention bears the burden of going forward with
evidence sufficient to show that there is a material issue of fact or
law, such that the applicant/proponent must meet its burden of proof.
Where cross-examination is not permitted, each party must bear its
burden by going forward with affirmative evidentiary presentations and
testimony, its rebuttal evidence and rebuttal testimony, and well-
developed questions that the party suggests the presiding officer pose
to the witnesses. Thus, the responsibility for developing an adequate
record for decision is on the parties, not the presiding officer. The
presiding officer is responsible for overseeing the compilation of the
record and for ensuring that the record is sufficiently clear and
understandable to the presiding officer such that he or she can reach
an initial decision. However, the parties are responsible for ensuring
that there is sufficient evidence on-the-record to meet their
respective burdens. The presiding officer will take the compiled
record, clarified by action of the presiding officer as necessary so
that it is understandable for the presiding officer's deliberations,
and based upon that record determine whether the parties have met their
respective burdens.
Nonetheless, to provide for the possibility in a Subpart L
proceeding that, in some instances in a particular proceeding, cross-
examination by parties may prove to be the best way of creating an
adequate record for decision in certain situations, Sec. 2.1204(b)
allows the presiding officer to permit cross-examination upon motion of
a party if the presiding officer finds that cross-examination is
necessary for development of an adequate record. To ensure that cross-
examination will be focused on disputed material issues of fact, Sec.
2.1204(b) has been modified from the proposed rule to add a requirement
that a motion/request for cross-examination must include a proposed
cross-examination plan. The cross-

[[Page 2214]]

examination plan provisions in Sec. 2.1204(b) were derived from the
requirements in Sec. 2.711(c). Furthermore, under the generally-
applicable requirement in Sec. 2.333, parties granted permission to
conduct cross-examination must conduct their cross-examination in
conformance with the cross-examination plan filed with the presiding
officer.
The Commission also requested public comment on whether the final
rule should provide explicitly for the option of the Commission or the
Chief Administrative Judge to establish three-judge panels on a case-
by-case basis, e.g., in cases where there are likely to be both
significant technical and legal issues to be resolved in the hearing.
Two comments were received on this matter. One commenter indicated
that there was no need to expressly provide for appointment of a three-
judge panel, since Sec. Sec. 2.313 and 2.321 would already allow the
Commission or Chief Administrative Judge to appoint a three-judge
panel. Another commenter stated that it may be appropriate to appoint
three-judge panels for initial reactor construction permit and
operating license cases, as well as cases in which there is likely to
be a large number of complex issues.
After reviewing the language of proposed Sec. Sec. 2.313 and
2.321, the Commission agrees with the commenter that these sections
provide sufficient flexibility for the Commission and Chief
Administrative Judge to appoint three-judge panels in appropriate
circumstances. The Commission also does not wish to limit in advance
the circumstances for which the Commission or Chief Administrative
Judge could appoint a single presiding officer. For these reasons, the
Commission declines to adopt a further change to Part 2 addressing this
subject, but notes that under revised Sec. 2.313 the Commission and
the Chief Administrative Judge are free to appoint a single presiding
officer or a three-judge Atomic Safety and Licensing Board.
Several commenters asserted that Sec. 2.1207 should be amended to
address whether parties must submit in advance the questions they wish
the presiding officer to pose to the witnesses, whether the questions
must be exchanged with other parties, and whether parties may submit
questions to the presiding officer at the oral hearing as the result of
witnesses' testimony. The Commission has revised Sec. 2.1207 to make
clear that: (1) Questions must be submitted so that they are received
by the presiding officer no later than five (5) days before the
commencement of the hearing; (2) questions need not be exchanged with
other parties; and (3) a party may not submit proposed questions to the
presiding officer at the hearing, unless the presiding officer requests
a party to submit such questions to assist the presiding officer in the
parties' development of a sufficient record to permit a decision on the
matters in controversy.
The Commission made conforming and correcting changes in Sec.
2.1200 to provide for consistent organization and terminology among all
scope statements in Part 2. In addition, the Commission revised Sec.
2.1207 to ensure that a presiding officer treats proposed questions to
be propounded to witnesses as confidential information until either the
question is asked of the witness, or the presiding officer's initial
decision is issued. Upon issuance of the decision, the presiding
officer must transmit the questions to the Secretary so that they may
be entered into the official record for the proceeding.
(l) Subpart M.
Sections 2.1306, 2.1307, 2.1308 (with the exception of paragraph
(d)(2)), 2.1312, 2.1313, 2.1314, 2.1317, 2.1318, 2.1326, 2.1328,
2.1329, and 2.1330 are deleted because the substance of these sections
is covered by rules of general applicability in new Subpart C. The
final rule reinstates the language formerly contained in Sec.
2.1308(d)(2), stating that Subpart M hearings are oral hearings, unless
all the parties agree and file a motion that the hearing consist of
written filings. The motion must be filed within fifteen (15) days of
the service of the notice or order granting the hearing. This language
was inadvertently designated as ``removed'' in the proposed rule, and
the final rule correctly retains this language in Sec. 2.1308.
No significant comments were received on the proposed changes, and
the Commission has adopted proposed Subpart M without substantive
changes. However, the Commission made conforming and correcting changes
in Sec. 2.1300 to provide for consistent organization and terminology
among all scope statements in Part 2.
The Commission has corrected Sec. 2.1315(a), so that the phrase,
``no generic issue,'' is revised to correctly read, ``no genuine
issue.'' The Commission has also revised Sec. 2.1323(d) in a manner
similar to Sec. 2.709, to clarify that a delegee of the Executive
Director for Operations may designate the NRC personnel who will
provide testimony in a Subpart M hearing.
(m) Subpart N.
New Subpart N is a ``fast track'' process for the expeditious
resolution of issues in cases where the contentions are few and not
particularly complex, and therefore may 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.
Subpart N may be applied to all NRC adjudications except proceedings on
uranium enrichment facility licensing, proceedings on the initial
authorization to construct a high-level radioactive waste geologic
repository, and proceedings for the initial issuance of a license to
possess and receive HLW at a geologic repository operations area. In
view of the simplified procedures and the expedited nature of the
litigation involved, Subpart N allows 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 cases involving small materials licensees,
where the parties want to be heard on the issues in a simple,
inexpensive, and informal proceeding that can be conducted quickly
before an independent decisionmaker. The Commission requested comments
on the appropriate criteria for the use of Subpart N.
Several commenters stated that proposed Sec. 2.310(h) would result
in Subpart N being used too infrequently, because in a contested case
the parties will probably not agree and it will be argued that the 2
day criterion will not be met. One commenter argued that the Commission
should have only one informal track (other than Subparts K & M) and
should simply state that the hearing should not take more than a
specified number of days. Another commenter indicated that no specific
set of criteria need to be defined in the rule for establishing whether
a proceeding should be conducted under Subpart N other than a
determination by the Commission, the Licensing Board or the presiding
officer. The commenter instead proposed that Sec. 2.310(h) be changed
to allow the use of Subpart N if: (1) All parties agree to Subpart N;
or (2) the Commission, the presiding officer, or the Licensing Board
determines that the proceeding would demonstrably benefit from
application of Subpart N. Another commenter indicated that a new Sec.
2.310(i) should be added, specifying that Subpart N can be used for a
portion of a hearing held under a different subpart if the Commission,
the presiding officer or the Licensing Board determines that portion
suitable for application of Subpart N.
The Commission believes that the procedures of Subpart N should be

[[Page 2215]]

limited to a relatively narrow set of proceedings where all parties
agree, or where the hearing is expected to be concluded in two (2) days
or less. The procedures were developed to permit a quick, relatively
informal proceeding where the presiding officer could easily make an
oral decision from the bench, or in a short time after conclusion of
the oral phase of the hearing. The Commission is reluctant--absent all
parties agreeing--to allow use in other circumstances where the issues
are more complex or the hearing is drawn out over months. If experience
shows that Subpart N is being underutilized, or that hearings are being
conducted under other provisions such as Subpart L which, but for the
2-day limitation, would have been better conducted under Subpart N, the
Commission will reconsider modifying or eliminating the 2-day
limitation.
The Commission made conforming and correcting changes in Sec.
2.1400 to provide for consistent organization and terminology among all
scope statements in Part 2. The Commission also revised Sec.
2.1407(a)(1) with respect to the need for filing an appeal with the
Commission before seeking judicial review, consistent with the change
to Sec. 2.341(b)(1) discussed earlier.
(n) Subpart O.
As discussed earlier under II.A.2.(b), Commission Question 1, the
Commission has decided to add a new Subpart O that will govern non-
adversarial ``legislative hearings.'' The procedures in Subpart O are
intended to provide a hearing forum where the Commission (or a
designated presiding officer) may obtain information and differing
stakeholders' perspectives on a policy issue.
The Commission could hold legislative hearings in its sole
discretion in two situations delineated in Subpart O. First, the
Commission may hold a legislative hearing in connection with a design
certification rulemaking, either indicating as part of the notice of
proposed rulemaking that it intends to hold a legislative hearing, or
issuing a notice of its intent to hold a legislative hearing after
reviewing the comments received on the proposed design certification
rule.
Although this represents a change from former 10 CFR 52.51(b),
which provided an opportunity for an informal hearing in connection
with a Federal Register notice of proposed rulemaking for a design
certification, the Commission expects that there will be little impact
on the public with this change. No hearing request was submitted in any
of the three design certification rulemakings to date. In addition,
many of the significant generic issues associated with the first three
design certification rulemakings were the subject of discussion in
workshops and open meetings, so that public stakeholders could observe
and provide comments on the issues before the proposed rule was
published. This may have diminished the need for informal hearings as
part of the design certification rulemaking. The Commission believes
that providing for a discretionary ``legislative hearing'' using the
procedures in Subpart O is consistent with the requirements of the AEA,
inasmuch as the ``hearing'' contemplated by Section 189 for rulemakings
is satisfied by opportunity for comment on the proposed design
certification rule. Hence, any additional hearing, such as a
legislative-style hearing under Subpart O, is an enhancement over what
is legally required for rulemaking under either the AEA or the APA.\16\
---------------------------------------------------------------------------

\16\ The Commission believes that the specific requirement for
``notice and opportunity for comment'' in the APA, 5 U.S.C. 553, is
co-extensive with the AEA Sec. 189a(1)(A) requirement for a
``hearing'' in connection with a rulemaking. Therefore, satisfying
the Sec. 189.a(1)(A) hearing requirement per se satisfies the APA
notice and comment requirement. Siegel v. AEC, 400 F.2d 778, 785-86
(DC Cir. 1968).
---------------------------------------------------------------------------

The other circumstance where the Commission could decide to use a
legislative hearing is where the presiding officer under Sec. 2.335(d)
has certified to the Commission a question regarding a waiver of the
prohibition on consideration of a Commission rule or regulation in an
agency hearing. Under the last sentence of Sec. 2.335(d) (formerly
Sec. 2.758(d)), the Commission may ``direct further proceedings as it
considers appropriate to aid its determination.'' The Commission
believes that matters addressing the appropriateness of challenging or
waiving existing Commission rules and regulations in a particular
adjudicatory proceeding may raise the kinds of policy and regulatory
issues which are suited for ``legislative hearings'' under Subpart O.
The procedures developed for this hearing are modeled to some
extent upon the hearings held by Congress and other legislative bodies.
Thus, under Subpart O, the Commission would determine the matters to be
addressed in the legislative hearing; there would be no ``parties''--
the Commission would normally determine the witnesses at the hearing
(in a legislative hearing considering a petition under Sec. 2.335, all
parties to the proceeding will be invited to participate, as will
interested States, governmental bodies, and affected Federally-
recognized Indian Tribes participating under Sec. 2.315(c)); the NRC
staff need not participate; written testimony and exhibits would be
filed; the Commission could have witnesses testify as a panel; and
there would be no ``decision'' other than the Commission's final design
certification rulemaking or the Commission's determination under Sec.
2.335(d). The Commission's determination in these legislative hearings
need not be based upon information developed solely in the Subpart O
proceeding (inasmuch as AEA does not require NRC rulemakings to be
``on-the-record.'' Thus, only the most general procedures of Subpart C
apply in the context of a Subpart O hearing.
(o) 10 CFR part 60.
In a conforming change, Sec. 60.63(a) was revised to refer to
Subpart J of part 2 instead of Subpart G, consistent with Sec.
63.63(a) of the recently-adopted part 63 (66 FR 55732; Nov. 2, 2001).
When Sec. 60.63 was adopted in 1981 (46 FR 13971; Feb. 25, 1981), it
referred to Subpart G inasmuch as Subpart J of Part 2 had yet to be
adopted (54 FR 14925; May 14, 1989). The reference to Subpart G in
Sec. 60.63(a) should have been corrected to refer to Subpart J when
Subpart J was adopted; thus, this final rule makes the necessary
conforming change.

B. Section-by-Section Analysis

1. Implementation of Rule
The final rule will apply only to proceedings which are noticed on
or after the effective date of the final rule. Current proceedings
noticed before the effective date of the final rule will be governed by
the former provisions of Part 2. If a decision is currently on appeal
within the Commission, or to a Court of Appeals, and the decision is
remanded to the NRC for further action, the remanded proceeding will
continue to be governed by the former provisions of Part 2.
2. Introductory Provisions--Sections 2.1-2.8.
Conforming changes are made to Sec. Sec. 2.2, 2.3, and 2.4 to
reference the new section numbers in Part 2.
A new definition of ``presiding officer'' is added to Sec. 2.4.
Under this definition, a presiding officer may be the Commission, an
administrative law judge, an administrative judge, an Atomic Safety and
Licensing Board, or other person designated in accordance with the
provisions of this part, presiding over the conduct of a hearing
conducted under the provisions of this part. Section 2.313 sets forth
the provisions governing which of these

[[Page 2216]]

entities may act as a presiding officer in any particular hearing.
3. Subpart A--Sections 2.100-2.111

Section 2.100--Scope of Subpart

Section 2.100 is corrected to remove the typographic error,
``alicense.''

Section 2.101--Filing of Application

Conforming changes are made to this section to reflect the new
section numbers in Part 2, and paragraphs (a)(3)(ii) and (b) were
modified to require that the applicant's notification of the
availability of an application and/or environmental report should be
accompanied by, inter alia, the email address, if one is available, of
the designated applicant representative.

Section 2.102--Administrative Review of Application

Conforming changes are made to this section to reflect the new
section numbers in Part 2.

Section 2.103--Action on Applications for Byproduct, Source, Special
Nuclear Material, Facility and Operator Licenses

Section 2.103 is amended to include a reference to ``facility''
licenses in the title and the text.

Section 2.104--Notice of Hearing

Section 2.104 addresses how the Commission will provide notice to
parties, the public and State, local governmental, and federally-
recognized Tribal officials. Paragraph (e) is corrected to make clear
that the NRC will provide notice to all parties and all other persons
entitled to notice of hearing with respect to applications for
construction authorization for a HLW repository under 10 CFR parts 60
and 63, and applications to receive and possess high-level waste at a
HLW repository.

Section 2.105--Notice of Proposed Action

Section 2.105 addresses how the Commission will provide notices of
proposed action if a hearing is not required. Paragraph (a)(5) is
revised to clarify that the Commission will publish notice of proposed
issuance of licenses and license amendments to receive and possess
high-level waste at a geologic repository operations area under 10 CFR
parts 60 and 63 if the license or amendment would authorize actions
which may significantly affect the health and safety of the public,
where a hearing is not otherwise required by law. Paragraph (a)(6) is
revised to clarify that the Commission will publish notice of proposed
issuance of an amendment to a construction authorization for a high-
level radioactive waste repository under 10 CFR parts 60 and 63 if the
amendment would authorize actions which may significantly affect the
health and safety of the public, where a hearing is not otherwise
required by law.

Section 2.106--Notice of Issuance

Section 2.106 addresses how the Commission will provide notice to
the parties, the public, and State, local governmental, and federally-
recognized Tribal officials of issuance of a license or amendment.
Paragraph (d) was corrected to make clear that the NRC will provide
notice with respect to any action on an application for construction
authorization for a high level waste repository under 10 CFR parts 60
and 63, issuance of a license to receive and possess high-level waste
at a HLW repository, or issuance of an amendment to such a license.

Section 2.107--Withdrawal of Application

This section describes how the Commission will process a withdrawal
of an application by an applicant. The second sentence was changed to
correctly state that if an application is withdrawn before the NRC
issues a notice of hearing, the Commission dismisses the proceeding.
The last sentence of this section was rewritten to make clear that the
presiding officer determines the terms and conditions for withdrawal of
an application after the NRC issues a notice of hearing.

Section 2.108--Denial of Application for Failure To Supply Information

Conforming changes were made to this section to reflect the new
section numbers in part 2.

Section 2.110--Filing and Administrative Action on Submittals for
Design Review or Early Review of Site Suitability Issues

Conforming changes were made to this section to reflect the new
section numbers in part 2.
4. Subpart B--Sections 2.200--2.206
Section 2.206 is amended to provide the Secretary with the
authority (formerly set forth in Sec. 2.772(g)) to extend upon the
Commission's motion the time for Commission review under Sec.
2.206(c)(1) of a Director's denial of a petition submitted under Sec.
2.206.
5. Subpart C--Sections 2.300-2.348, 2.390
Subpart C contains the rules of general applicability for
considering hearing requests, petitions to intervene and proffered
contentions, for determining the appropriate hearing 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 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 large part of Subpart C essentially restates and updates the
substance of many of the rules of general applicability that were
formerly contained in Subpart G. The Commission has prepared Table 1,
which cross-references the new provisions in Subpart C and the
renumbered Subpart G to the superseded provisions of Subpart G, and
Table 2 which cross-references the superseded provisions of Subpart G
to new Subparts C and G.

Table 1.--Cross-References Between New Subparts C and G and Old
Provisions of Subpart G
[NA = no comparable provision in former Subpart G. None = no substantive
or editorial change; references to Part 2 sections are corrected]
------------------------------------------------------------------------
Description/
New section Old section modification
------------------------------------------------------------------------
Cross-References to New Subpart C
------------------------------------------------------------------------
2.301......................... 2.700a........... Paragraph (b) on
applicability is
removed.
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.

[[Page 2217]]

2.305......................... 2.712............ Addresses facsimile
and electronic mail.
Adds provision
requiring service by
most expeditious
means, and provision
on service on NRC
staff when not a
party. Deletes
provisions on proof
of service and free
copying.
2.306......................... 2.710............ Addresses computation
of time for
electronic mail and
facsimile
transmissions.
2.307......................... 2.711............ Clarified.
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. Adds
provision with
standards for
discretionary
intervention, and
adds provision on
time limit for
issuance of
presiding officer's
decision on
petitions/requests
for hearing.
2.310......................... NA............... New section setting
forth criteria for
different hearing
tracks.
2.311......................... 2.714a........... Clarified; adds
provision on appeals
with respect to
selection of hearing
procedure.
2.312......................... 2.703............ Clarified; adds
provision on
statement of hearing
procedures or
subpart for order or
notice of hearing.
2.313......................... 2.704............ Clarified and
reorganized.
2.314......................... 2.713............ Simplified and
expanded.
2.315......................... 2.715............ Clarified; adds
requirement for
designation of
single
representative for
interested States,
local governmental
bodies, and affected
Federally-recognized
Indian Tribes not
admitted as parties.
2.316......................... 2.715a........... Clarified and
simplified; expanded
to cover all
proceedings.
2.317......................... 2.716, 2.761a.... Simplifies provision
for establishment of
separate hearings;
no change to
provision on
consolidation of
proceedings.
2.318......................... 2.717............ Conforming changes
made to refer to
administrative law
judge.
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............ Conforming changes
made to refer to
Chief Administrative
Judge.
2.322......................... 2.722............ None.
2.323......................... 2.730............ Clarified and
expanded to address
motions for
referral,
reconsideration and
certification, and
accuracy in filing.
2.324......................... 2.731............ None.
2.325......................... 2.732............ None.
2.326......................... 2.734............ None.
2.327......................... 2.750............ Replaces subsection
on provision of free
transcripts, and
adds new provisions
on video recordings.
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............ Clarifies authority
of presiding
officer, and adds
provisions on cross-
examination plans as
conforming changes.
2.334......................... NA............... New section setting
forth schedules for
proceedings.
2.335......................... 2.758............ Clarifies that
paragraph (a)
applies to all
adjudicatory
proceedings.
2.336......................... NA............... New requirement for
disclosure of
materials.
2.337......................... 2.743(c)-(f), Consolidates
(h), (i). provisions on
evidence at hearing;
no substantive
changes.
2.338......................... NA............... New section on
Alternative Dispute
Resolution (ADR).
2.339......................... 2.761............ None.
2.340......................... 2.760a, 2.764.... Consolidates
provisions on
effectiveness of
initial decisions.
2.341......................... 2.786............ Clarified; codifies
Commission practice
of discretionary
review of requests
for interlocutory
appeals; modifies
provision on
exhaustion of
administrative
remedies.
2.342......................... 2.788............ Modified to include
service affected by
electronic means.
2.343......................... 2.763............ None.
2.344......................... 2.770............ None.
2.345......................... 2.771............ NRC staff not
provided additional
time to respond to
petitions for
reconsideration.
2.346......................... 2.772............ Clarified; removes
provision on
Secretary's
authority to extend
time for Commission
review of a
Director's denial
under 10 CFR
2.206(c) (now
addressed in
2.206(c)).
2.347......................... 2.780............ None.
2.348......................... 2.781............ Clarified; no
substantive change.
2.390......................... 2.790............ None.
------------------------------------------------------------------------

[[Page 2218]]

Cross-References to New Subpart G
------------------------------------------------------------------------
2.700......................... 2.700............ Updated to reflect
new scope of Subpart
G.
2.701......................... 2.700a........... Applicability
provision in former
2.700a(b) is
removed.
2.702......................... 2.720(a)-(h)(1).. Provisions in former
2.720(h)(2)
addressing subpoenas
of NRC staff
transferred to
2.709.
2.703......................... 2.733............ No substantive
change; new
subdividing
paragraphs added.
2.704......................... NA............... New mandatory
discovery provision
analogous to 2.336.
2.705......................... NA............... New mandatory
discovery provision
analogous to 2.336.
2.706......................... 2.740a, 2.740b... Consolidates without
substantive change
provisions formerly
contained in Sec.
Sec. 2.740a and
2.740b.
2.707......................... 2.741............ None.
2.708......................... 2.742............ None.
2.709......................... 2.720(h)(2), Consolidates
2.744. provisions formerly
contained in Sec.
Sec. 2.720(h)(2)
and 2.744.
2.710......................... 2.749............ New requirements on
timing of summary
disposition motions,
responses, and
presiding officer
consideration of the
motions.
2.711......................... 2.743............ None.
2.712......................... 2.754............ None.
2.713......................... 2.760............ None.
------------------------------------------------------------------------

Table 2.--Cross-References Between Old Provisions of Subpart G and New
Subpart C
[NA = no comparable provision in former Subpart G. None = no substantive
or editorial change; references to Part 2 sections are corrected]
------------------------------------------------------------------------
Description/
Old section New section modification
------------------------------------------------------------------------
Cross-References to New Subpart C
------------------------------------------------------------------------
2.700a........................ 2.301............ Paragraph (b) on
applicability is
removed.
2.701......................... 2.302............ Addresses facsimile
transmissions and
electronic mail.
2.702......................... 2.303............ Clarified; no
substantive change.
2.703......................... 2.312............ Clarified; adds
provision on
statement of hearing
procedures or
subpart for order or
notice of hearing.
2.704......................... 2.313............ Clarified and
reorganized.
2.707......................... 2.320............ None.
2.708, 2.709.................. 2.304............ Addresses electronic
mail; modifies
format requirements
of documents.
2.710......................... 2.306............ Addresses computation
of time for
electronic mail and
facsimile
transmissions.
2.711......................... 2.307............ Clarified.
2.712......................... 2.305............ Addresses facsimile
and electronic mail.
Adds provision
requiring service by
most expeditious
means, and provision
on service on NRC
staff when not a
party. Deletes
provisions on proof
of service and free
copying.
NA............................ 2.308............ New section on
Secretary's duty to
forward petitions/
requests for hearing
to Commission or
Chief Judge.
2.713......................... 2.314............ Simplified and
expanded.
2.714......................... 2.309............ Changes requirement
for standing;
requires filing of
contentions with
petition/request for
hearing. Adds
provision with
standards for
discretionary
intervention, and
adds provision on
time limit for
issuance of
presiding officer's
decision on
petitions/requests
for hearing.
NA............................ 2.310............ New section setting
forth criteria for
different hearing
tracks.
2.714a........................ 2.311............ Clarified; added
provision on appeals
with respect to
selection of hearing
procedure.
2.715......................... 2.315............ Clarified; adds
requirement for
designation of
single
representative for
interested States,
local governmental
bodies, and affected
Federally-recognized
Indian Tribes not
admitted as parties.
2.715a........................ 2.316............ Clarified and
simplified; expanded
to cover all
proceedings.
2.716, 2.761a................. 2.317............ Simplifies provision
for establishment of
separate hearings;
no change to
provision on
consolidation of
proceedings.
2.717......................... 2.318............ Conforming changes
made to refer to
administrative law
judge.
2.718, 2.1233(e).............. 2.319............ Clarified;
consolidates several
provisions relating
to authority of
presiding officer.
2.721......................... 2.321............ Conforming changes
made to refer to
Chief Administrative
Judge.
2.722......................... 2.322............ None.
2.730......................... 2.323............ Clarified and
expanded to address
motions for
referral,
reconsideration and
certification, and
accuracy in filing.
2.731......................... 2.324............ None.

[[Page 2219]]

2.732......................... 2.325............ None.
2.734......................... 2.326............ None.
2.743(c)-(f), (h), (i)........ 2.337............ Consolidates
provisions on
evidence at hearing;
no substantive
changes.
2.750......................... 2.327............ Replaces subsection
on provision of free
transcripts, and
adds new provisions
on video recordings.
2.751......................... 2.328............ None.
2.752, 2.751a................. 2.329............ Consolidates and adds
provisions on
purpose and
objectives of
prehearing
conferences.
2.753......................... 2.330............ None.
2.755......................... 2.331............ None.
NA............................ 2.332............ New section on case
scheduling and
management.
2.757......................... 2.333............ Clarifies authority
of presiding
officer, and adds
provisions on cross-
examination plans as
conforming changes.
NA............................ 2.334............ New section setting
forth schedules for
proceedings.
2.758......................... 2.335............ Clarifies that
paragraph (a)
applies to all
adjudicatory
proceedings.
NA............................ 2.336............ New requirement for
disclosure of
materials.
NA............................ 2.338............ New section on
Alternative Dispute
Resolution (ADR).
2.761......................... 2.339............ None.
2.760a, 2.764................. 2.340............ Consolidates
provisions on
effectiveness of
initial decisions.
2.763......................... 2.343............ None.
2.770......................... 2.344............ None.
2.771......................... 2.345............ NRC staff not
provided additional
time to respond to
petitions for
reconsideration.
2.772......................... 2.346............ Clarified; removes
provision on
Secretary's
authority to extend
time for Commission
review of a
Director's denial
under 10 CFR
2.206(c) (now
addressed in
2.206(c)).
2.780......................... 2.347............ None.
2.781......................... 2.348............ Clarified; no
substantive change.
2.786......................... 2.341............ Clarified; codifies
Commission practice
of discretionary
review of requests
for interlocutory
appeals; modifies
provision on
exhaustion of
administrative
remedies.
2.788......................... 2.342............ Modified to include
service affected by
electronic means.
2.790......................... 2.390............ None.
------------------------------------------------------------------------
Cross-References to New Subpart G
------------------------------------------------------------------------
2.700......................... 2.700............ Updated to reflect
new scope of Subpart
G.
2.700a........................ 2.701............ Applicability
provision in former
2.700a(b) is
removed.
2.720(a)-(h)(1)............... 2.702............ Provisions in former
2.720(h)(2)
addressing subpoenas
of NRC staff
transferred to
2.709.
2.733......................... 2.703............ No substantive
change; new
subdividing
paragraphs added.
NA............................ 2.704............ New mandatory
discovery provision
analogous to 2.336.
NA............................ 2.705............ New mandatory
discovery provision
analogous to 2.336.
2.740a, 2.740b................ 2.706............ Consolidates without
substantive change
provisions formerly
contained in Sec.
Sec. 2.740a and
2.740b.
2.741......................... 2.707............ None.
2.742......................... 2.708............ None.
2.720(h)(2), 2.744............ 2.709............ Consolidates
provisions formerly
contained in Sec.
Sec. 2.720(h)(2)
and 2.744.
2.749......................... 2.710............ New requirements on
timing of summary
disposition motions,
responses, and
presiding officer
consideration of the
motions.
2.743......................... 2.711............ None.
2.754......................... 2.712............ None.
2.760......................... 2.713............ None.
------------------------------------------------------------------------

Section 2.300--Scope

This section indicates that 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 otherwise specified. Subpart C by its terms does not
apply to adjudications conducted under the authority of other statutes
or to adjudications provided by the NRC under other parts of title 10
of the Code of Federal Regulations, e.g., procedures governing access
to restricted data or national security information or employment
clearance under 10 CFR part 10.

Section 2.301--Exceptions

This section indicates that the Commission may use alternative
adjudicative procedures where the conduct of military or foreign
affairs functions is involved.

Section 2.302--Filing of Documents

This section establishes the alternatives for filing documents with
the Commission in Part 2 adjudications, and provides that filing by
mail, electronic mail or facsimile is considered complete as of time of

[[Page 2220]]

deposit in the mail, or upon electronic mail or facsimile transmission.

Section 2.303--Docket

This section requires the Secretary of the Commission to maintain
docket files for each proceeding conducted under Part 2.

Section 2.304--Formal Requirements for Documents; Acceptance for Filing

This section establishes the requirements governing the formatting
of documents to be filed in Part 2 adjudications, personal signature of
filed documents, the number of copies to be filed with the original,
and provides that the NRC may refuse to accept any documents not
meeting these requirements.

Section 2.305--Service of Papers, Methods, Proof

This section describes the manner in which documents must be served
on the Commission and all parties, and delineates the circumstances
under which the Commission will consider service to be complete.
Documents which are electronically served by e-mail or facsimile must
also be simultaneously served on the Secretary by one of the other
methods of service permitted by Sec. 2.305(c). However, such
electronic service will be deemed to be by e-mail for purposes of
computation of time under Sec. 2.306, unless a party claims that it
did not receive the e-mail.
Section 2.305 also states that except for subpoenas, all
Commission-issued orders, decisions, notices and other papers will be
served upon all parties in a proceeding. Paragraph (f) requires all
parties to file all documents that are required to be filed with other
parties and the presiding officer, to also be filed upon the NRC staff
in proceedings where the NRC staff decides not to participate as a
party (as it is permitted to do in certain circumstances under Subparts
L, M and N). When the NRC staff informs the presiding officer and
parties of its determination not to participate, the NRC staff must
designate a person and address for such fillings to be served upon the
NRC staff.

Section 2.306--Computation of Time

This section describes how time periods under Part 2 must be
computed.

Section 2.307--Extension and Reduction of Time Limits

This section addresses the authority of the Commission and
presiding officer to both extend and reduce time limits.

Section 2.308--Treatment of Requests for Hearing/Petitions To Intervene
by the Secretary

Section 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 by the Secretary. 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 Administrative
Judge of the Atomic Safety and Licensing Board Panel, as appropriate,
for further action.

Section 2.309--Hearing Requests, Petitions To Intervene, Requirements
for Standing and Contentions

Section 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 Sec. 2.714 and applies those
requirements to all NRC adjudicatory proceedings, whether formal
(Subpart G and J), informal (Subparts L and M), hybrid (Subpart K) or
``fast track'' (Subpart N).\17\
---------------------------------------------------------------------------

\17\ Legislative hearings under Subpart O may not be requested
by any party, and are held only in the discretion of the Commission.
Therefore, Subpart O legislative hearings are not addressed in Sec.
2.309.
---------------------------------------------------------------------------

Standing. The requirements to establish standing for intervention,
as set forth in existing Sec. 2.714, continues under Sec. 2.309. For
intervention in the proceeding on the licensing of the HLW geologic
repository, Sec. 2.309 continues the existing Subpart J requirement
that 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. The Commission intends
the term, ``among other things,'' in paragraph (d)(3) to mean that it
will consider the totality of information made known to it--not just
information submitted in the request for hearing/petition to
intervene--in determining whether standing exists.
Discretionary Intervention. Under this section, the presiding
officer would consider admitting the petitioner as a matter of
discretion where the petitioner has failed to establish his or her
standing to intervene as-of-right, if the petitioner requests such
consideration. In Sec. 2.309(e), the Commission codifies 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 requires a
presiding officer or Licensing Board to apply those factors in all
cases where a petitioner is found to lack standing to intervene under
Sec. 2.309(d) 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.'' See N.
States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and
2), CLI-75-1, 1 NRC 1, 2 (1975). Of these criteria, the most important
weighing in favor of discretionary intervention is whether the person
seeking discretionary intervention has demonstrated the capability and
willingness to contribute to the development of the evidentiary record,
even though they cannot show the traditional interest in the
proceeding. The most important factor weighing against discretionary
intervention is the potential to appropriately broaden or delay the
proceeding.
Timing of Requests for Hearing/Petitions to Intervene and
Contentions. Section 2.309 establishes the requirements for the filing
of a petition/hearing request, the content of the request, and the
standards that must be met for a late-filed request. For those
proceedings for which a Federal Register notice has been published, the
requirements are much the same as those in former Sec. 2.714(a)(1),
except that Sec. 2.309(b)(1) incorporates the twenty (20) day period
for filing of a request for hearing/petition to intervene in license
transfer cases governed under Subpart M (the twenty (20) day
requirement in former Sec. 2.1306 is deleted by the final rule), Sec.
2.309(b)(2) incorporates the thirty (30) day period for filing of a
request for hearing/petition to intervene in proceedings for the
licensing of a HLW geologic repository (the thirty (30) day requirement
in former Sec. 2.1014 is deleted in the final rule), and section Sec.
(b)(3) generally establishes a sixty (60) day period for submission of
most requests for hearing/petitions to intervene.
Section 2.309(b)(3)(iii) provides that where a time for submission
is not specified in the Federal Register notice, the time period is
sixty (60) days from the date of publication in the Federal Register.
For proceedings in which a Federal Register notice is not
published, the requirements in Sec. 2.309(b)(4) are derived

[[Page 2221]]

from former Sec. 2.1205 but have been supplemented to allow for
publication of notice on the NRC Web site at http://www.nrc.gov/public-involve/major-actions.html
, as providing official notice for purposes

of Sec. 2.309(b)(4). Where Federal Register notice is not required by
statute or regulation, any notice of agency action (for which an
opportunity to request a hearing may be required) published on the
portion of the NRC Web site designated as providing official notice for
purposes of Sec. 2.309(b)(4) initiates the sixty (60) day period in
which timely requests for hearing must be filed.
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. The final rule provides a minimum of
sixty (60) days from the date of publication (either in the Federal
Register or on the NRC Web site) of the notice of opportunity to
request a hearing for the filing of requests/petitions to intervene and
contentions, except for license transfer cases, for which a period of
twenty (20) days is provided, initial authorization to construct a HLW
geologic repository and the initial license to receive and posses HLW
at a geological repository operations area, for which a period of
thirty (30) days is provided. Late-filed requests for hearing/petitions
are governed by the criteria set forth in Sec. 2.309(c) (formerly
Sec. 2.714(a)(1)(i) through (v)).
Contentions. Section 2.309(f) 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 (f)(1) and (2) of
Sec. 2.309 incorporate the longstanding contention support
requirements of former Sec. 2.714--no contention will be admitted for
litigation in any NRC adjudicatory proceeding unless these requirements
are met. Paragraph (f)(2) addresses the standards for amending existing
contentions, or submitting new contentions based upon documents or
other information not available at the time that the original request
for hearing/petition to intervene was required to be filed. Paragraph
(f)(2) incorporates the substance of existing Sec. 2.714 (b)(2)(iii)
with regard to new or amended environmental contentions--new or amended
environmental contentions may be admitted if the petitioner shows that
the new or amended contention is based on data or conclusions in the
NRC's environmental documents that differ significantly from the data
or conclusions in the applicant's documents. Of course, new or amended
environmental documents must be submitted promptly after the NRC's
environmental documents are issued. For all other new or amended
contentions the rule makes clear that the criteria in Sec.
2.309(f)(2)(i) through (iii) must be satisfied for admission. Include
in these standards is the requirement that it be shown that the new or
amended contention has been submitted in a timely fashion based on the
timing of availability of the subsequent information. See Sec.
2.309(f)(2)(iii). This requires that the new or amended contention be
filed promptly after the new information purportedly forming the basis
for the new or amended contention become available. Included in these
standards is the requirement that it be shown that the new or amended
contention has been submitted in a timely fashion based on the
availability of the subsequent information. See Sec. 2.302(f)(iii).
This requires that the new or amended contention be filed promptly
after the new information purportedly forming the basis for the new or
amended contention becomes available. 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 is extended to informal proceedings under Subpart L, as
well as Subparts K, M, and N.
Another significant area of change is where two or more requestors/
petitioners seek to co-sponsor a contention, and where a requestor/
petitioner seeks to adopt the contention of another sponsoring
requestor/intervenor. Under Sec. 2.309(f)(3), requestors/petitioners
cosponsoring a contention must jointly designate a representative who
shall have the authority to act for all requestors/petitioners.
Similarly, if a requestor/petitioner seeks to adopt the contention of
another sponsoring requestor/intervenor, the requestor/petitioner must
agree that the sponsoring requestor/petitioner shall act as the
representative with respect to that contention. If the sponsoring party
is subsequently dismissed from the proceeding for reasons other than
resolution of its contentions, the party who adopted the contention may
continue to pursue the contention, or seek dismissal.
Appropriate Hearing Procedures. Section 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. In addition, the final rule requires that
if the requestor/petitioner asks for a formal hearing on the basis of
Sec. 2.310(d), the request for hearing/petition to intervene must
demonstrate, by reference to the contention and the bases provided and
the specific procedures in Subpart G, that resolution of the contention
necessitates resolution of material issues of fact which may be best
determined through the use of the identified procedures.
State and Local Governments and Affected Indian Tribes. Section
2.309(d)(2) addresses the participation of States, local governmental
bodies, and affected, Federally-recognized Indian Tribes as parties in
NRC adjudicatory proceedings. The final rule continues the existing
requirement in Sec. 2.1014(c) that a State, local governmental body,
or affected Federally-recognized Indian Tribe who wishes to be a party
in a HLW geologic repository proceeding must file at least one good
contention. A significant change, relative to the former requirement in
Sec. 2.714, is that a State, local governmental body, or affected
Federally-recognized Indian Tribe who wishes to be a party in a
proceeding for a facility which is located within its boundary are
explicitly relieved of the obligation to demonstrate standing in order
to be admitted as a party. A State, local governmental body, or
Federally-recognized Indian Tribes who wishes to be a party in a
proceeding for a facility which is not located within its boundary must
address standing. However, a State, local governmental body, or
Federally-recognized Indian Tribe which is adjacent to a facility or,
for example, has responsibilities as an offsite government for purposes
of emergency preparedness, and presents such information in its
request/petition, would ordinarily be accorded standing.
Another significant change from the requirements of former Sec.
2.714 is that under Sec. 2.309(d)(2) each State, local governmental
body, and Federally-recognized Indian Tribe who wishes to be a party in
a proceeding must each designate a single representative in the
proceeding (an analogous requirement requiring ``interested'' States,
local governmental bodies, and Federally-recognized Indian Tribes to
each

[[Page 2222]]

designate a representative is included in Sec. 2.315(c) of the final
rule). Where a State's constitution provides that both the Governor and
another State official or State governmental body may represent the
interests of the State in a proceeding, the Governor and the other
State official/government body will be considered separate potential
parties. Each must separately satisfy the relevant contention
requirement, and each must designate its own representative (that is,
the Governor must designate a single representative, and the State
official must separately designate a representative).
The Commission has deleted the language in the second sentence of
the proposed Sec. 2.309(d)(ii) regarding identifying contentions on
which a State, local governmental body or Federally-recognized Indian
Tribe ``wishes to participate,'' inasmuch as that provision applies
only to ``interested'' States, local governmental bodies, and
Federally-recognized Indian Tribes under Sec. 2.315(c).
Answers and Replies. Section 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 allows the petitioner to file a written reply to the applicant/
licensee and staff answers within seven (7) days after service of any
answer. No other written answers or replies will be entertained.
Decision on Request/Petition. Section 2.309(i) is a new provision
that requires the presiding officer to render a decision on each
request for hearing/petition to intervene within forty-five (45) days
after the filing of all answers and replies under paragraph (h) of this
section. If additional time is needed, Sec. 2.309(i) permits the
presiding officer to seek an extension from the Commission.

Section 2.310--Selection of Hearing Procedures

Section 2.310 of the final rule sets forth the criteria to be
applied by the Commission, a presiding officer, or an Atomic Safety and
Licensing Board in determining the hearing procedures to be utilized in
the proceeding. Unless otherwise provided in Sec. 2.310, proceedings
involving hearings on the grant, renewal, licensee-initiated amendment
or termination of licenses and permits subject to 10 CFR Parts 30, 32
through 35, 36, 39, 40, 50, 52, 54, 55, 61, 70 and 72 must ordinarily
use Subpart L procedures. Thus, Subpart L procedures will be used, as a
general matter, for hearings on nuclear power reactor construction
permit and operating license applications under Parts 50 and 52,
nuclear power reactor license renewal applications under Part 54,
nuclear power reactor license amendments under Part 50, reactor
operator licensing under Part 55, and nearly all materials and spent
fuel storage licensing matters.
Subpart G procedures will ordinarily be used in four types of
proceedings: Proceedings on the construction and operation of uranium
enrichment facilities (required by Section 193 of the AEA to be a
formal, ``on-the-record'' adjudication), proceedings on enforcement
matters (unless all parties agree to use other procedures such as
Subpart L), proceedings for the initial authorization to construct a
HLW geologic repository, and proceedings for the initial issuance of a
license to receive and possess HLW at a HLW geologic repository.
In addition, the final rule provides that Subpart G procedures will
be used in licensing proceedings for nuclear power reactors if the
Commission or presiding officer finds, based upon the materials
submitted in the request for hearing/petition to intervene under Sec.
2.309, that resolution of a proposed contention requires resolution of:
(1) Issues of material fact relating to the occurrence of a past
activity, where the credibility of an eyewitness may reasonably be
expected to be at issue, and/or (2) issues of motive or intent of a
party or eyewitness material to the resolution of the contested matter.
The first criterion contains two elements: The first is that there is a
dispute of material fact concerning the occurrence of (including the
nature or details of) a past activity. This includes situations where
all parties agree that an activity occurred (e.g., a conversation
between a worker and a supervisor), but there is disagreement over the
details of the activity (e.g., the worker alleges that the supervisor
directed him/her to do an illegal act and the supervisor denies the
allegation). However, this element does not include the testimony of
any expert witness who has no first hand knowledge of the activity,
inasmuch as the expert is simply providing an opinion based upon the
testimony of others, and cross-examination in particular of the expert
witness is not necessary to evaluate the weight to be given to his or
her opinion. The second element is that the credibility of the
eyewitness may reasonably be expected to be at issue. Examples of such
credibility disputes include whether the eyewitness possessed the
physical capability to experience the activity, or whether the
eyewitness accurately describes the activity. This does not include
disputes between parties over the qualifications and professional
``credibility'' of expert witnesses who have no first-hand knowledge of
the disputed event/facts. Subpart G procedures such as cross-
examination are not necessary for parties to effectively challenge the
qualifications and professional ``credibility'' of an expert.
The second alternative criterion for determining whether Subpart G
procedures should be used in a proceeding is whether the contention/
contested matter necessarily requires a consideration and resolution of
the motive or intent of a party or eyewitness. For example, a
contention alleging deliberate and knowing actions to violate NRC
requirements by an applicant's representative necessarily requires
resolution of the motive or intent of the applicant and its
representative. Application of Subpart G procedures should be
considered in such circumstances. By contrast, disputes over the motive
or intent of an expert witness who was not an eyewitness are not
relevant in determining whether to apply Subpart G procedures, inasmuch
as such issues are not relevant to the decision criteria of the
presiding officer (e.g., whether the contested application meets NRC
requirements), and may easily be addressed in written filings and oral
argument.
If a presiding officer determines that a contention meets the
criteria in Sec. 2.310(d), resolution of that contention will proceed
using Subpart G procedures. To facilitate orderly conduct of the
Subpart G hearing where there are several contentions meeting Sec.
2.310(d), the presiding officer should schedule the resolution of the
contentions in parallel. If the presiding officer has determined that
one or more admitted contentions do not meet the criteria in Sec.
2.310(d), those contentions will be resolved by the presiding officer
in a separate Subpart L hearing. Parties admitted only with respect to
contentions to be resolved under Subpart L hearing procedures do not
have any right to participate in the Subpart G hearing, and parties
admitted only with respect to contentions to be resolved using Subpart
G hearing procedures do not have any right to participate in the
Subpart L hearing.
The special hybrid hearing procedures in Subpart K continue to
apply to hearings in proceedings on the expansion of spent fuel storage
capacity at civilian nuclear power reactors. Similarly, the special
informal hearing procedures in Subpart M continue to apply to hearings
in proceedings on reactor or material license transfers.

[[Page 2223]]

New, informal ``fast-track'' procedures in Subpart N may be used by
direction of the Commission if the proceeding is expected to take no
more than two (2) days to complete, or if all parties agree to the use
of the ``fast-track'' procedures.
The Commission has added a new Subpart O that provides for
procedures to be used if the Commission decides to hold ``legislative
hearings.'' The legislative hearing procedures would be used in any
design certification rulemaking hearings which the Commission in its
discretion determined to hold under Sec. 52.51(b). Conforming changes
to Sec. 52.51(b) are made to remove the hearing procedures currently
contained in paragraph (b) of Sec. 52.51. The legislative hearing
procedures in Subpart O could be used at the Commission's discretion in
developing a record to assist the Commission in resolving, under Sec.
2.335(d), a petition filed under Sec. 2.335(b).

Section 2.311--Interlocutory Review of Rulings on Requests for Hearing/
Petitions To Intervene and Selection of Hearing Procedures

Section 2.311 continues unchanged the provision in former Sec.
2.714a that limits interlocutory appeal of rulings on requests for
hearing and petitions to intervene to those that grant or deny a
petition to intervene. However, paragraph (d) represents a new
provision dealing with appeals of orders selecting hearing procedures.
Appeals must be filed within ten (10) days of the order selecting
hearing procedures, and the sole grounds for appeal is that the
selection of hearing procedure was in contravention of the applicable
criteria in Sec. 2.310.

Section 2.313--Designation of Presiding Officer, Disqualification,
Unavailability, and Substitution

Section 2.313 addresses who may be designated as a presiding
officer in hearing tracks. In general, unless the Commission designates
otherwise, the Chief Administrative Judge may designate either an
Atomic Safety and Licensing Board or an administrative law judge as the
presiding officer for a hearing conducted under Subparts G, J, K, L, or
N, and may designate either an Atomic Safety and Licensing Board, an
administrative law judge, or an administrative judge as the presiding
officer for a hearing conducted under Subpart M. The Commission alone
has authority to decide who shall be a presiding officer in a Subpart O
hearing.
Section 2.313 also addresses the disqualification, unavailability
and substitution of a presiding officer, and continues without
substantive change the comparable provisions on disqualification,
unavailability, and substitution of a presiding officer (including a
member of a Licensing Board) in former Sec. 2.704.

Section 2.314--Appearance and Practice Before the Commission in
Adjudicatory Proceedings

Section 2.314 simplifies and expands the existing provisions in
Sec. Sec. 2.713 and 2.1215 on appearance and representation in NRC
adjudications. For example, the new rule requires all persons appearing
in a representative capacity to file a notice of appearance providing a
facsimile number, and an e-mail address, if the person possesses either
or both.

Section 2.315--Participation by a Person Not a Party

This section continues largely unchanged the provisions in former
Sec. 2.715(a) and (b). However, several clarifying changes have been
made in the language of this section. For example, in paragraph (a), a
sentence has been added to clarify that statements of position
submitted by a person who is not a party shall not be considered
evidence in the proceeding. In paragraph (d), the language has been
clarified to make clear that the motion for leave to file an amicus
brief may be submitted with the amicus brief itself. Regardless of the
nature of participation by a person who is a non-party, that person
does not possess any of the rights and privileges of a person who has
attained the status of a party, including taking an appeal to the
Commission, or to judicial review of an agency final decision.
Substantial changes have been made to Sec. 2.315(c), in part to
use language which is consistent with the final version of Sec.
2.309(d), and to reflect the Commission's determination that interested
States, governmental bodies (counties, municipalities or other
subdivisions) and affected Federally-recognized Indian Tribes must
identify prior to the commencement of the hearing the contentions on
which they wish to participate. Also, the final rule, unlike existing
Sec. 2.715(c), requires each interested State, governmental body and
Indian Tribe to designate a single representative for the proceeding;
the Commission will no longer permit multiple agencies or offices
within a political entity to separately participate under Sec.
2.315(c).

Section 2.316--Consolidation of Parties

This section clarifies the language in former Sec. 2.715a
regarding consolidation of parties, and expands the applicability of
the section from construction permit and operating license proceedings
for production and utilization facilities under the former rule, to all
proceedings.

Section 2.317--Separate Hearings; Consolidation of Proceedings

This section 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.

Section 2.318--Commencement and Termination of Jurisdiction of
Presiding Officer

This section 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
Commission shall dismiss a proceeding when an application has been
withdrawn before a notice of hearing has been issued.

Section 2.319--Power of the Presiding Officer

This section consolidates provisions in former Sec. 2.718 and
Sec. 2.1233(e), and identifies the authority and powers of the
presiding officer. Although the substance of the regulation remains
unchanged, in some cases the regulation was clarified. For example, the
language in Sec. 2.319(d) derived from former Sec. 2.718(c) was
expanded to make clear the presiding officer's power to strike any
portion of a written presentation that is cumulative, irrelevant,
immaterial or unreliable. In other instances, the regulation includes a
provision that identifies a power that presiding officers have always
possessed, but was not specifically identified in the former
regulation. For example, Sec. 2.319(c) was added to make clear the
presiding officer's power to consolidate parties and proceedings, which
were formerly addressed in Sec. Sec. 2.715a and 2.716.

Section 2.320--Default

Section 2.320 establishes the circumstances under which a presiding
officer may declare a default, and describes the actions that may be
taken upon a default. This section continues without change the
provisions that were formerly in Sec. 2.707.

[[Page 2224]]

Section 2.321--Atomic Safety and Licensing Boards

This section addresses the Commission's establishment of Atomic
Safety and Licensing Boards, and states the general authority of these
boards to exercise the powers granted to presiding officers under Sec.
2.319, as well as any other powers as enumerated in Part 2. The quorum
requirements of a Licensing Board, as well as the authority of the
Chief Administrative Judge to exercise powers with respect to a
proceeding when a board is not in session are also set forth. This
section continues without change the provisions that were formerly in
Sec. 2.721.

Section 2.322--Special Assistants to the Presiding Officer

Section 2.322 authorizes a presiding officer (including an Atomic
Safety and Licensing Board), after consultation with the Chief
Administrative Judge, to appoint special assistants to assist the
presiding officer in taking evidence and preparing a suitable record
for review. This section restates the provisions of former Sec. 2.722
without change.

Section 2.323--Motions

This section 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 final rule departs from former
Sec. 2.730 by establishing a ``compelling circumstances'' standard for
evaluating motions for reconsideration. Such circumstances include the
``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 Sec. 2.345(b)). Section
2.323 also addresses referral of rulings and certified questions by the
presiding officer to the Commission. With regard to referrals, Sec.
2.323(f) provides 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.
Section 2.323 also differs from the existing requirements by including
a specific provision in paragraph (f)(2) which allows any party to file
with the presiding officer a petition for certification of issues for
early Commission review and guidance.

Section 2.324--Order of Procedure

This section addresses the authority of the presiding officer and
Commission to designate the order of procedures in a hearing, and
provides that the proponent of an order will ordinarily open and close.
This section restates the provisions of Sec. 2.731 without change.

Section 2.325--Burden of Proof

This section provides that unless the presiding officer orders
otherwise, the applicant or the proponent of an order bears the burden
of proof (risk of non-persuasion). This section restates the provisions
of Sec. 2.732 without change.

Section 2.326--Motions To Reopen

This section governs the procedure, timing and criteria governing
motions to reopen a closed record. This section restates the provisions
of Sec. 2.734 without change.

Section 2.327--Official Reporter; Transcript

This section governs the creation, correction and availability of
official transcripts of NRC hearings. This section restates the
provisions of Sec. 2.750, but removes the provision on free
transcripts.

Section 2.328--Hearings To Be Public

This section requires that all hearings be public, unless otherwise
requested under Section 181 of the AEA. This section restates the
provisions of Sec. 2.751 without change.

Section 2.329--Prehearing Conference

This section addresses the scheduling and matters to be addressed
in a prehearing conference. The prehearing conference is the primary
tool by which the Commission or presiding officer, as applicable, will
provide effective management of the proceeding. This section
incorporates provisions in Sec. 2.752 and Sec. 2.751a, and eliminates
reference to a ``special prehearing conference'' in production and
utilization facility construction permit and operating license
proceedings. Some of the provisions in those sections have been
combined and clarified.

Section 2.330--Stipulations

This section addresses the use of stipulations, which the
Commission encourages to focus the hearing on the contested matters
between the parties. This section restates the provisions in Sec.
2.753 without change.

Section 2.331--Oral Argument Before the Presiding Officer

This section addresses the authority of the presiding officer to
determine whether oral argument will be held on any matter, and to set
time limits on the oral argument. This section restates the provisions
in Sec. 2.755 without change.

Section 2.332--General Case Scheduling and Management

This section addresses general case scheduling and management. It
requires 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 ground rules 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.

Section 2.333--Authority of the Presiding Officer To Regulate Procedure
in a Hearing

This section sets forth the general authority of the presiding
officer to regulate the procedure in a hearing, to ensure that
argumentative, repetitious, cumulative, irrelevant, unreliable, and
immaterial evidence is not introduced into the record, and to provide
for an orderly and expeditious conduct of the hearing.

Section 2.334--Schedules for Proceedings

Section 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 sixty (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.

Section 2.335--Consideration of Commission Rules and Regulations in
Adjudicatory Proceedings

This section, which was formerly designated Sec. 2.758, governs
situations where a party contends that an NRC rule or regulation should
not be applied, or otherwise attempts to challenge the validity of the
rule or regulation. No changes have been made to the regulatory
language. However, the Commission notes that it has adopted a new
Subpart O, ``Legislative Hearings,'' which provides the Commission with
the option to conduct a ``legislative hearing'' to, inter alia, assist
it in resolving a question certified to it by the presiding officer
under Sec. 2.335(d).

[[Page 2225]]

Section 2.336--General Discovery

Section 2.336 generally imposes a disclosure requirement on all
parties except the NRC staff, whose disclosure obligations are
addressed in 2.336(b)) in all proceedings under Part 2, except for
proceedings using the procedures of Subparts G and J. This generally
applicable discovery provision requires each party to disclose and/or
provide the identity of witnesses and copies of the analysis or other
authority upon which that person bases his or her opinion. The duty of
disclosure continues during the pendency of the proceeding. If a
document, data compilation, or tangible thing required to be disclosed
is publicly available from another source such as at the NRC Web site,
http://www@nrc.gov">http://www@nrc.gov, and/or the NRC Public Document Room, a sufficient
disclosure would be the location, the title and a page reference to the
relevant document, data compilation, or tangible thing. Section
2.336(b) sets forth the disclosure obligations of the NRC staff,
regardless of whether it is a party. The discovery required by Sec.
2.336 constitutes the totality of the discovery that may be obtained in
informal proceedings. The final rule makes clear that the mandatory
disclosure obligations of the NRC staff in Sec. 2.336 do not apply in
Subpart J proceeding, unless the Commission, presiding officer, or
Atomic Safety and Licensing Board specifically orders. Section 2.336
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)).

Section 2.337--Evidence at a Hearing

This section contains the provisions relating to evidence that were
formerly in Sec. 2.743(c)-(f), (h)-(i), relating to admissibility of
evidence, offering of objections, offers of proof, receipt of exhibits
into evidence, keeping of the official record, and criteria for
obtaining official notice.
Section 2.377(g) governs the need for admission of NRC staff
documents into the hearing record, and replaces the provisions in
former Sec. 2.743(g). Section 2.337(g)(1) provides that in proceedings
involving an application for a facility construction permit, the NRC
staff shall offer into evidence the ACRS report,\18\ the NRC's safety
evaluation, and the environmental impact statement (EIS) prepared under
10 CFR Part 51. In proceedings involving applications other than a
construction permit for a production or utilization facility where the
NRC staff is a party, Sec. 2.337(g)(2) requires the NRC staff to offer
into evidence any ACRS report on the application, at the discretion of
the NRC staff the safety evaluation prepared by the staff and/or
testimony and evidence on the contention/controverted matter, any NRC
staff position on the contention/controverted matter provided to the
presiding officer under Sec. 2.1202(a)(see the fourth item below), and
the EIS or environmental assessment (EA) if there are matters in
controversy with respect to the adequacy of the EIS or EA. If the NRC
staff is not a party in such proceedings (as it may choose under, e.g.,
Subpart L), the NRC staff shall offer into evidence, together with a
sponsoring witness (except in the case of the ACRS report \19\), any
ACRS report on the application, at the discretion of the NRC staff the
NRC staff's safety evaluation and/or testimony and evidence on the
contention/controverted matter, any statement of position on the
contention/controverted matter in controversy provided to the presiding
officer (see the fourth item below), and the EIS or environmental
assessment (EA) if there are matters in controversy with respect to the
adequacy of the EIS or EA. However, the NRC staff is not to be treated
as a party solely due to its sponsoring these documents for admission
into the record of the proceeding, analogous to its role in a Subpart M
proceeding where the NRC staff is not required to be a party but must
nonetheless offer into evidence with a sponsoring witness the SER
associated with the proposed license transfer.
---------------------------------------------------------------------------

\18\Although the NRC staff must offer the ACRS report into
evidence, the NRC staff neigher sponsors the report nor is
repsonsible for defending the content of the report, inasmuch as the
ACRS is an independent advisory committee to the Commission.
\19\See prior footnote.
---------------------------------------------------------------------------

Section 2.338--Settlement of Issues; Alternate Dispute Resolution

Section 2.338 is a new provision that consolidates and amplifies
the previous rules pertaining to settlement (10 CFR 2.203, 2.759,
2.1241). Section 2.338 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 intends no
change in the bases for accepting a settlement under the new rule.

Section 2.339--Expedited Decisionmaking Procedure

This section, formerly designated Sec. 2.763, has not been
substantively changed.

Section 2.340--Initial Decision in Contested Proceedings on
Applications for Facility Operating Licenses

This section consolidates provisions on the effectiveness of
initial decisions which were formerly in Sec. Sec. 2.760a and 2.764.
No substantive changes were made to the provisions, but conforming
changes were made to reference the applicable provisions of new Subpart
C that were formerly in Subpart G.

Section 2.341--Review of Decisions and Actions of a Presiding Officer

This section essentially restates former Sec. 2.786. However,
paragraph (f) clarifies that the Commission will entertain in its
discretion petitions by a party for review of an interlocutory matter
in the circumstances described in paragraph (f). This is consistent
with the current Commission practice under former Sec. 2.786. Minor
changes are also being made to give guidance on the form and content of
briefs. For example, the final rule increases 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.

Section 2.342--Stays of Decisions

This section describes the procedures and the standards for
granting stays of decisions by a presiding officer (including decisions
where the Commission is acting as the presiding officer). No
substantive changes have been made to this provision, which was
formerly designated Sec. 2.788.

Section 2.343--Oral Argument

No substantive changes have been made to this provision, which was
formerly designated Sec. 2.763.

Section 2.344--Final Decision

No substantive changes have been made to this provision, which was
formerly designated Sec. 2.770.

Section 2.345--Petition for Reconsideration

This section continues largely unchanged the provisions in former
Sec. 2.771, but no longer provides 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

[[Page 2226]]

(10) days to file a reply brief to a petition for reconsideration.

Section 2.346--Authority of the Secretary

This section sets forth the authority of the Secretary to act for
the Commission on matters designated in this section. It differs from
its predecessor (Sec. 2.772) by clarifying some of the matters on
which the Secretary may act, and no longer addresses the Secretary's
authority to extend the time for Commission review of Director's
Decisions under Sec. 2.206 (this is now addressed in revised Sec.
2.206(c)).

Section 2.347--Ex Parte Communications

This section sets forth the limitations on ex parte communications
between interested persons and NRC adjudicatory employees. No
substantive changes have been made to this provision, which was
formerly designated Sec. 2.780.

Section 2.348--Separation of Functions

This section sets forth the requirements applicable to the NRC in
order to maintain separation of functions within the NRC. No change has
been made to this provision, which was formerly designated Sec. 2.781.

Section 2.390--Public Inspections, Exemptions, Requests for Withholding

This section, which was formerly designated Sec. 2.790, sets forth
provisions of generic applicability concerning the public's access to
information which apply irrespectively of whether there is an NRC
proceeding. Following the publication of the proposed amendments to
Part 2, the Commission adopted a final rule amending Sec. 2.790 to
revise the procedures regarding the submission and agency handling and
disclosure of proprietary, confidential, and copyrighted information
(68 FR 18836; Apr. 17, 2003). Section 2.390 now incorporates these
amendments. The final rule also reflects the addition of a footnote to
paragraph (a), which provides that ``final NRC records and documents''
do not include handwritten notes, nor do they include any drafts.
Drafts which are protected from disclosure include documents prepared
by NRC personnel, as well as documents prepared by contractors retained
by the NRC.
6. Subpart G--Sections 2.700-2.713
Subpart G is a specialized hearing track containing the
Commission's procedures for the conduct of on-the-record adjudicatory
proceedings. Provisions of general applicability have been removed from
Subpart G and transferred to new Subpart C. Most of the remaining
provisions have been restated without change except for renumbering and
internal cross-reference changes. 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. Subpart G (as with all other specialized
hearing tracks) is to be used in conjunction with the rules of general
applicability contained in Subpart C. Following is a section-by-section
analysis of Subpart G.

Section 2.700--Scope of Subpart G

This section reflects the revised applicability of this Subpart to
a limited set of proceedings for which formal adjudicatory procedures
may be used.

Section 2.701--Exceptions

This section indicates that the Commission may use alternative
adjudicative procedures where the conduct of military or foreign
affairs functions is involved.

Section 2.702--Subpoenas

Section 2.702 is fundamentally a restatement of former Sec.
2.720(a)-(h)(1).

Section 2.703--Examination by Experts

This section restates, with one exception, the requirements in
former Sec. 2.733 regarding the use of experts to examine and cross-
examine witnesses of other parties. However, consistent with Sec.
2.711(c), which authorizes the presiding officer to require filing of
cross-examination plans, the Commission believes that a party seeking
permission to use an expert to conduct cross-examination should file a
proposed cross-examination plan in accordance with Sec. 2.711(c).

Section 2.704--Discovery--Required Disclosures

New Sec. Sec. 2.704 and 2.705 revise the general provisions for
discovery in Subpart G proceedings, except for discovery against the
NRC staff. These new discovery provisions, which are analogous to the
disclosure provisions in Sec. 2.336, provide for the prompt and open
disclosure of relevant information by the parties, without resort to
formal processes, unless 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--Discovery--Additional Methods

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.

Sections 2.706--Depositions Upon Oral Examination and Upon Written
Interrogatories; Interrogatories to Parties

This section consolidates, without substantive change, the
provisions regarding depositions and interrogatories that were formerly
addressed in Sec. 2.740a and Sec. 2.740b.

Section 2.707--Production of Documents and Things; Entry Upon Land for
Inspections and Other Purposes

This section restates the provisions in former Sec. 2.741 with
minor clarifying and grammatical corrections, and revised references to
sections in Subparts C and G.

Section 2.708--Admissions

This section restates the provisions in former Sec. 2.742 without
substantive change.

Section 2.709--Discovery Against the NRC Staff

This section consolidates former Sec. Sec. 2.720(h)(2) and 2.744,
both of which addressed discovery against the NRC. 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, under 10
CFR 9.17). Except for the foregoing, the substantive aspects of the
former regulations are unchanged.
Section 2.709 provides that when the NRC is a party, the Executive
Director for Operations (EDO) will designate the NRC staff personnel to
perform a number of functions relevant to the conduct of the
proceeding, including answering written interrogatories and being
witnesses for oral hearing or deposition (as applicable). As is the
current practice, the EDO may delegate this function to a person or
persons designated by the EDO.

[[Page 2227]]

Section 2.710--Motions for Summary Disposition

Section 2.710 generally retains the former provisions of Sec.
2.749 regarding summary disposition. However, Sec. 2.710 requires that
summary disposition motions be filed within twenty (20) days of the
close of discovery; responses to motions must be filed twenty (20) days
thereafter. The final rule requires the presiding officer to address
the summary disposition motion within 40 days after the last response
to the motion is filed, and delineates the presiding officer's options
for addressing the motion. Apart from deciding the motion, the
presiding officer is given discretion not to consider a motion for
summary disposition unless he or she determines that resolution of the
motion will serve to expedite the proceeding. The presiding officer may
also summarily dismiss or hold in abeyance any untimely summary
disposition motions filed shortly before or during the oral hearing, if
the presiding officer determines that substantial resources must be
diverted from the hearing to adequately address the motion.

Section 2.711--Evidence

This section restates the requirements in former Sec. 2.743
without change.

Section 2.712--Proposed Findings and Conclusions

This section continues, without change, the provisions of former
Sec. 2.754 regarding the requirement for the submission of proposed
findings of fact and conclusions of law following completion of a
formal hearing.

Section 2.713--Initial Decision and Its Effect

This section restates the requirements in former Sec. 2.760
without change.
7. Subpart I--Sections 2.900-2.913
Section 2.901 has been revised to specify that the procedures for
handling Restricted Data and National Security Information in Subpart I
apply to proceedings under subparts G, J, K, L, M, and N.
The definition of ``party'' for this subpart has been amended to
refer to Sec. Sec. 2.309 and 2.315. No substantive change is intended
by the corrected references.
8. Subpart J--Sections 2.1000-2.1027
The Commission is making a number of changes to Sec. Sec. 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 to: (1) Correct references
to rules of general applicability in former provisions of Subpart G
that are being transferred to Subpart C, and (2) eliminate redundant or
duplicate provisions in Subpart J that would be covered by the
generally applicable provisions in Subpart C. Because these are
conforming changes, a section-by-section analysis of the revisions to
Subpart J is not provided.
9. Subpart K--Sections 2.1101-2.1119
Subpart K continues to be the Commission's specialized hearing
track for contested proceedings on licenses or license amendments to
expand spent fuel storage capacity at a civilian nuclear power plant
site. Subpart K is to be used in conjunction with the rules of general
applicability in Subpart C. Following is a section-by-section analysis
of the revisions to Subpart K.

Section 2.1109--Requests for Oral Argument

This section is modified to clarify that a hearing on any
contentions that remain after the oral argument under Subpart K will be
conducted using the hearing procedures of Subpart L.

Section 2.1111

This section is removed and reserved for future use.

Section 2.1113--Oral Argument

Paragraph (a) of this section requires each party to submit a
summary of the facts, data, and arguments which the party proposes to
rely upon in the oral argument addressing whether the criteria in Sec.
2.1115(b) have been met for holding an adjudicatory hearing, as well as
all supporting facts and data in the form of sworn written testimony or
written statements. These submissions must be made to the presiding
officer and simultaneously on all other parties no later than twenty-
five (25) days before the oral argument is scheduled. Paragraph (b)
permits, but does not require, a party to submit a reply to the written
summaries, facts, data and arguments; this reply must be filed on the
presiding officer and simultaneously on all other parties no later than
ten (10) days before the oral argument is scheduled. Paragraph (c)
retains the requirements in former Sec. 2.1113(b) without change.

Section 2.1117--Burden of Proof

This section states that while the applicant for the spent fuel
pool expansion license amendment bears the ultimate burden of proof
(risk of non-persuasion) on admitted contentions, the proponent of an
adjudicatory hearing bears the burden of demonstrating that the
criteria in Sec. 2.1115(b) have been met and thus, an adjudicatory
hearing should be held.

Section 2.1119--Applicability of Other Sections (Sec. 2.1117 in
Proposed Rule)

This section is modified to add a reference to new Subpart C. By
cross-referencing Subpart C, the Commission intends to make clear that
the generally-applicable provisions of that Subpart, which are not
addressed by more specific provisions in Subpart K, apply throughout a
Subpart K proceeding. For example, the provisions in Sec. 2.335 for
directed certification of a Licensing Board determination of a petition
on application of a Commission rule or regulation applies throughout
the Subpart K proceeding, including the oral hearing and the presiding
officer's determination under Sec. 2.1115.
10. Subpart L--Sections 2.1200-2.1213
Subpart L constitutes the Commission's generally-applicable hearing
procedure to be used in most proceedings unless one of the more
specialized hearing tracks, e.g., Subparts G, J, K, M, or N, applies.
Subpart L is to be used in conjunction with the rules of general
applicability contained in Subpart C.
The hearing procedures in this subpart are patterned after the
Subpart M provisions on license transfers, but have been modified and
supplemented to provide for a more generic hearing procedure as
compared to Subpart M. The Subpart L procedures shift the focus to more
informal oral hearings (e.g., record developed through oral
presentation of witnesses who are subject to questioning by the
presiding officer), although all parties could agree to conduct the
hearing based solely upon written submissions. Following is a section-
by-section analysis of the revisions to Subpart L.

Section 2.1200--Scope of Subpart

Section 2.1200 indicates that Subpart L may be applied to all NRC
adjudicatory proceedings except proceedings on the licensing of the
construction and operation of a uranium enrichment facility,
proceedings on an initial application for construction authorization
for a high-level radioactive waste repository at a geologic repository
operations area noticed under Sec. Sec. 2.101(f)(8) or 2.105(a)(5),
proceedings on an initial application for a license to receive and
possess high-level radioactive waste at a geologic repository
operations area, proceedings on enforcement matters unless all parties
otherwise agree and request the application of Subpart L procedures,
and proceedings for the

[[Page 2228]]

direct or indirect transfer of control of an NRC license when the
transfer requires prior approval of the NRC under the Commission's
regulations, governing statutes, or pursuant to a license condition.

Section 2.1201--Definitions

Section 2.1201 provides that Subpart L has no unique definitions
but relies on the definitions in existing Sec. 2.4.

Section 2.1202--Authority and Role of NRC Staff

Section 2.1202 describes the authority and role of the NRC staff in
the informal hearings under Subpart L. Similar to the situation in
license transfer cases under 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. Section 2.1202(a) requires the NRC staff to provide notice to
the presiding officer of the NRC staff's action on the application or
the underlying regulatory matter for which a hearing was provided, as
applicable. The notice must include the staff's explanation why it may
take action on the application or the underlying regulatory matter
despite the pendency of the contested matter before the presiding
officer. In licensing proceedings, that explanation should ordinarily
address why the public health and safety is protected and common
defense and security is promoted despite the pendency of the contested
matter. In no event, however, should the staff's explanation set forth
a position on, or otherwise assume an advocacy position with respect to
the contested matter in the adjudication before the presiding officer.
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
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 Sec. 2.1213, the NRC staff's action would be
subject to motions for stay.
Section 2.1202(b) also provides, consistent with Sec. 2.310, that
the NRC staff may decide whether to participate as a party to most
proceedings conducted under Subpart L but would be required to be a
party in enforcement proceedings, in a proceeding where the NRC staff
has denied (or proposes to deny) an application, and in a proceeding
where the presiding officer determines that the resolution of any issue
would be aided materially by the NRC staff's participation as a party.
At the commencement of a proceeding, if the NRC staff decides to
participate as a party, Sec. 2.1202(b)(2) requires the NRC staff to
notify the presiding officer and parties of its intent to participate
as a party and the contentions on which it wishes to participate as a
party within 15 days of the order granting requests for hearing/
petitions to intervene and admitting contentions. If the NRC staff
desires to be a party thereafter, the NRC staff shall notify the
presiding officer and the parties, identify the contentions on which it
wishes to participate as a party, and make the disclosures required by
Sec. 2.336(b)(3) through (5) unless accompanied by an affidavit
explaining why the disclosures cannot be provided to the parties with
the notice. Although the NRC staff should have continuing flexibility
to enter a hearing as a party, it should not be permitted to make a
delayed decision in order to avoid its disclosure obligations under
Sec. 2.336(b). In addition, the NRC staff must take the proceeding in
whatever posture the hearing may be at the time that it chooses to
participate as a party.

Section 2.1203--Hearing File and Prohibition on Other Discovery

Section 2.1203 requires the NRC staff to prepare and provide a
hearing file and to keep the hearing file up-to-date by placing
relevant documents such as the SER into the file as they become
available. However, the Staff's obligation to place documents into the
hearing file, by itself, has no significance with respect to the
hearing schedule, and the unavailability of a staff-prepared document
which is unnecessary for resolution of a contested matter must not
affect the schedule for resolution.
Although the NRC has the capability to receive electronic files and
make them available at the NRC's Web site, there is currently no
requirement to submit documents in electronic form. Furthermore, the
bulk of some electronic files, e.g., files of nuclear power plant
license applications, may be impractical to be available for electronic
access and download, given current technologies, and may be distributed
using media such as CD-ROM and DVD. Hence, the Commission expects that
hearing files in the foreseeable future will consist of paper copies,
electronic files, or a combination of both.
Discovery against the NRC staff is prohibited in Subpart L
proceedings by Sec. 2.1203(d), except as permitted by Subpart C.

Section 2.1204--Motions and Requests

Section 2.1204(a) makes clear that the provisions in Subpart C on
motions, requests, and responses are to be applied in informal
proceedings under Subpart L. Section 2.1204(b) allows 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 cross-
examination is necessary for the development of an adequate record for
decision. However, the Commission expects that the use of cross-
examination will be rare.

Section 2.1205--Summary Disposition

Section 2.1205 provides 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.

Section 2.1206--Informal Hearings

Section 2.1206 specifies 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 is 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 may be entertained absent unanimous
consent of the parties.

Section 2.1207--Process and Schedule for Submissions and Presentations
in an Oral Hearing

Section 2.1207 specifies the process and schedule for submissions
and presentations in oral hearings under the revised 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.

Section 2.1208--Process and Schedule for a Hearing Consisting of
Written Presentations

Section 2.1208 specifies the process for submissions in hearings
consisting of written presentations. This section

[[Page 2229]]

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. Paragraph (a)(3)
was revised to clarify that proposed questions may be submitted on
written responses and rebuttal testimony filed under paragraph (a)(2),
and that the presiding officer has the discretion whether these
questions are to be posed to the sponsors of the responses and rebuttal
testimony.

Section 2.1209--Findings of Fact and Conclusions of Law

Section 2.1209 requires parties to file proposed findings of fact
and conclusions of law within thirty (30) days of the close of the
hearing, unless the presiding officer specifies a different time.

Section 2.1210, 2.1211--Initial Decision and Its Effect, Immediate
Effectiveness of Initial Decision Directing Issuance or Amendment of
Licenses Under Part 61 of This Chapter

Under new Sec. 2.1210, an initial decision resolving all issues
before the presiding officer is effective upon issuance unless stayed
or otherwise provided by the regulations in part 2. Under Sec.
2.1210(a), the Commission, at its discretion, will determine whether
initial decisions which are inconsistent with any staff action taken
under Sec. 2.1202(a) warrant Commission review. Once an initial
decision becomes final, Sec. 2.1210(e) provides that the Secretary
transmits the decision to the NRC staff for action in accordance with
the decision. Section 2.1211 restates former 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.

Section 2.1212--Petitions for Commission Review of Initial Decision

Section 2.1212 requires that petitions for review of an initial
decision must be filed in accordance with the generally applicable
review provisions of Sec. 2.341. The second sentence of this section,
which requires a party to file a petition for Commission review before
seeking judicial review of an agency action, was modified to conform
with the parallel provision in the second sentence of Sec. 2.341(b).

Section 2.1213--Applications for a Stay

Section 2.1213 specifies 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. Applications for a stay of an
initial decision issued under Subpart L must be filed under the stay
provisions of Sec. 2.342 in Subpart C.
11. Subpart M--Sections 2.1300-2.1331
Subpart M continues to be the Commission's specialized hearing
track applicable to proceedings for the direct or indirect transfer of
licenses for which prior NRC approval is required under governing
statutes, the Commission's regulations, or an existing license
condition. Subpart M is to be used in conjunction with the provisions
of Subpart C listed in Sec. 2.1304.
Section 2.1308 has been amended to remove provisions which are now
covered under the generally-applicable provisions in Subpart C, but
retains the language indicating that Subpart M hearings will ordinally
be oral hearings unless the parties unanimously agree to a hearing
consisting of written submissions and file a joint motion requesting a
written hearing within 15 days of the notice or order granting a
hearing.
Section 2.1315 states that a license amendment for an ISFSI that is
intended to conform the license to reflect a license transfer, involves
``no genuine issue as to whether the health and safety of the public
will be significantly affected.''
Sections 2.1321, 2.1322 and 2.1331 have been amended to remove
references to deleted sections and to reflect the fact that requests
for hearing/petitions to intervene for proceedings under Subpart M will
be considered under the generally applicable requirements of Sec.
2.309 in Subpart C.
Section 2.1323(d) provides that either the EDO or the EDO's delegee
shall designate the NRC staff witnesses who will testify in a Subpart M
hearing.
12. Subpart N--Sections 2.1400-2.1407
Subpart N is a new, specialized hearing track that contains the
Commission's ``fast track'' hearing procedures. This subpart provides
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.
However, this subpart may be used for more complex issues if all
parties agree. The Commission expects that the rendering of an initial
decision should be accomplished within about two to three months of the
issuance of the order granting a hearing if the issues are
straightforward and deadlines are met. Subpart N is to be used in
conjunction with the rules of general applicability contained in
Subpart C. The following is a section-by-section analysis of Subpart N.

Section 2.1400--Purpose and Scope

This section indicates that the purpose of Subpart N is to provide
for simplified procedures for conducting hearings, and identifies the
proceedings where Subpart N procedures may be used.

Section 2.1401--Definitions

This section indicates that Subpart N has no unique definitions,
and relies on the definitions in existing Sec. 2.4.

Section 2.1402--General Procedures and Limitations; Requests for Other
Procedures

Section 2.1402 specifies the general procedures and procedural
limitations for the ``fast track'' hearing process of Subpart N. It
limits the use of written motions and pleadings, prohibits discovery
beyond that provided by the general disclosure provisions of Subpart C,
and prohibits summary disposition. Section 2.1402 allows 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 are
not appropriate in the particular case. It also permits any party to
orally request that the presiding officer allow parties to cross-
examine on particular contentions or issues. The presiding officer may
grant the oral motion only if the presiding officer finds that cross-
examination is necessary for the development of an adequate record for
decision. The Commission expects, however, that cross-examination will
rarely be used in Subpart N proceedings.

Section 2.1403--Authority and Role of the NRC Staff

Section 2.1403 describes the authority and role of the NRC staff in
the ``fast track'' hearings under Subpart N. Regardless of its status
as a party and similar to the situation under Subparts L and 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. Section 2.1403(a) requires the NRC staff to
provide notice to the presiding officer of the NRC's action on the
application or the underlying regulatory matter for which a hearing was
provided, as applicable. The notice must include the staff's
explanation why it may take action on the application or the

[[Page 2230]]

underlying regulatory matter despite the pendency of the contested
matter before the presiding officer. In licensing proceedings, that
explanation should ordinarily address why the public health and safety
is protected and common defense and security is promoted despite the
pendency of the contested matter. In no event, however, should the
staff's explanation set forth a position on, or otherwise assume an
advocacy position with respect to the contested matter in the
adjudication before the presiding officer. 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.
Similar to the situation in informal hearings under Subpart L, the
NRC staff is not required to be a party in most ``fast track''
proceedings, but would be required to be a party in any Subpart N
proceeding involving an application denied by the staff, an enforcement
action proposed by the staff, or a proceeding 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 may choose to be a party, in which case it
must notify the presiding officer and the parties that it desires party
status.

Section 2.1404--Prehearing Conference

Section 2.1404 requires the presiding officer to conduct a
prehearing conference within forty (40) days of the issuance of the
order granting requests for hearing/petitions to intervene. At the
prehearing conference, each party identifies its witnesses, provides a
summary of the proposed testimony of each witness, reports on its
efforts at settlement, and provides questions that the party wishes the
presiding officer to ask at the hearing. The presiding officer
memorializes the rulings and results of the prehearing conference in a
written order.

Section 2.1405--Hearing

Section 2.1405 sets forth the requirements applicable to ``fast
track'' hearings. The hearing commences no later than twenty (20) days
after the prehearing conference required by Sec. 2.1404. The hearing
is open to the public and transcribed. At the hearing, the presiding
officer receives oral testimony and questions the witnesses. The
parties may not cross-examine the witnesses, but they have had the
opportunity at the prehearing conference to provide questions for the
presiding officer to use at hearing. However, as mentioned above a
presiding officer may permit cross-examination under Sec. 2.1402(b) if
the presiding officer finds that cross-examination by the parties is
necessary for the development of an adequate record for decision.
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 prohibited unless requested by the presiding
officer.

Section 2.1406--Initial Decision--Issuance and Effectiveness

Section 2.1406 encourages the presiding officer to render a
decision from the bench, to be reduced to writing within twenty (20)
days of the close of the hearing. Where a decision is not rendered from
the bench, it must be issued in writing within thirty (30) days of the
close of the hearing. These periods may be extended only with the
approval of the Chief Administrative Judge or the Commission. The
initial decision is effective twenty (20) days after issuance of the
written decision unless a party appeals or the Commission takes review
on its own motion. The initial decision is stayed if a party appeals or
the Commission reviews the initial decision on its own.

Section 2.1407--Appeal and Commission Review of Initial Decision

Under Sec. 2.1407, a party may appeal as-of-right by filing a
written appeal with the Commission within fifteen (15) days after the
service of the initial decision. The written appeal is limited to
twenty (20) pages and must address the matters and standards for review
listed in Sec. 2.1407. Other parties may file written answers within
fifteen (15) days after service of the appeal, and are limited to
twenty (20) pages. If there is no appeal, or after the Commission has
acted upon the appeal and the decision becomes final agency action, the
Secretary shall transmit the decision to the NRC staff for action in
accordance with the decision.
13. Subpart O--Sections 2.1500--2.1509
Subpart O is a specialized hearing track that contains the
Commission's procedures for conducting ``legislative-style'' hearings.
The purpose of this new subpart is to provide for simplified, non-
adversarial hearing procedures to assist the Commission in obtaining
information and varying policy perspectives on specific subjects
identified by the Commission. Subpart O may be used, in the
Commission's sole discretion, in design certification rulemakings under
Part 52 of this chapter, and in situations where the Commission has
determined, under Sec. 2.335(d), that a legislative hearing would
assist it in resolving a petition filed under Sec. 2.335(b).

Section 2.1500--Purpose and Scope

This section specifies the matters for which the Commission may
decide, as a matter of discretion, to hold a legislative hearing under
this subpart.

Section 2.1501--Definitions

This section sets forth two definitions, demonstrative information,
and documentary information. These definitions are used in Sec. 2.1506
to identify the information that must be submitted in written
statements to be filed before the oral hearing phase of the legislative
hearing.

Section 2.1502--Commission Decision To Hold Legislative Hearing

This section addresses the procedure and timing of a Commission
decision to conduct a legislative hearing and the noticing
requirements. In a design certification rulemaking, the Commission
could determine to hold a legislative hearing either prior to issuing
the notice of proposed rulemaking or as the result of comments received
on the proposed rule. If the Commission decides, before publishing a
notice of proposed rulemaking in the Federal Register, that it wishes
to conduct a legislative hearing, the notice of proposed rulemaking
must identify the issues to be addressed in the legislative hearing,
the parties that will be invited to participate in the legislative
hearing, whether any other parties may request to participate and the
criteria for granting of such requests, and any special procedures to
be used. In a proceeding where a party submits a petition under Sec.
2.335, all parties to the proceeding will be invited to participate, as
will interested States, governmental bodies, and affected Federally-
recognized Indian Tribes who are participating in the underlying
proceeding under Sec. 2.315(c).

Section 2.1503--Authority of Presiding Officer

This section essentially provides the presiding officer with the
authority to control the conduct of the legislative hearing to ensure
that the hearing is conducted in a timely and fair manner.

[[Continued on page 2231]]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]

[[pp. 2231-2280]]
Changes to Adjudicatory Process

[[Continued from page 2230]]

[[Page 2231]]

Section 2.1504--Participation in Legislative Hearing

This section addresses the content and timing of requests to
participate in the legislative hearing.

Section 2.1505--Role of the NRC Staff

Because of the nature of the legislative hearing, the NRC staff is
not required to participate in the legislative hearing, but may be
requested to answer presiding officer questions or provide other
assistance as the presiding officer may request. The separation of
functions limitations in Sec. 2.348 do not apply to communications
between the Commission or presiding officer and the NRC staff on the
matters identified under Sec. 2.1502(c)(1) as the subject of the
legislative hearing (see discussion on Sec. 2.1509).

Section 2.1506--Written Statements and Submission of Information

Ordinarily, all participants in a legislative hearing must submit
written statements and materials they wish to be considered in a
legislative hearing. These written materials must be filed no later
than ten (10) days prior to the oral hearing.

Section 2.1507--Oral Hearing

This section addresses the conduct of the oral phase of the
legislative hearing. The purpose of the hearing is to allow various
stakeholders to express their opinions, analyses, and supporting facts,
with the object of informing the Commission with respect to the policy
questions relevant to the subject matter of the legislative hearing.
Accordingly, the procedures for the legislative hearing are intended to
provide for expeditious presentation of such information to the
Commission in a format that minimizes formalism. For example, there is
no cross-examination; instead the presiding officer is free to ask each
witness those questions the presiding officer believes are warranted,
based upon the written submissions and information submitted under
Sec. 2.1506 as supplemented by any oral presentations in the oral
phase of the hearing.

Section 2.1508--Recommendation of Presiding Officer

This section sets forth the responsibilities of the presiding
officer following the conclusion of the oral phase of the legislative
hearing to certify a recommendation to the Commission. The information
that is to be included in the certification is intended to assist the
Commission in resolving the subject matter of the legislative hearing.

Section 2.1509--Ex Parte Communications and Separation of Functions

This section provides that the ex parte limitations on
communications between the Commission or presiding officer and parties
in Sec. 2.347 also applies in a legislative hearing. The separation of
functions limitations in Sec. 2.348 applies only where the legislative
hearing is held on a matter certified to the Commission under Sec.
2.335, and then only with respect to the underlying contested matter,
and not the issue identified under Sec. 2.1502(c)(1).

III. Availability of Documents

The NRC is making the documents identified below available to
interested persons through one or more of the following methods as
indicated.
Public Document Room (PDR). The NRC Public Document Room is located
at 11555 Rockville Pike, Rockville, Maryland.
Rulemaking Web site (Web). The NRC's interactive rulemaking Web
site is located at http://ruleforum.llnl.gov. These documents may be

viewed and downloaded electronically via this Web site.
NRC's Public Electronic Reading Room (PERR). The NRC's public
electronic reading room is located at http://www.nrc.gov/NRC/ADAMS/index.html
.

The NRC staff contact (NRC Staff). None.

----------------------------------------------------------------------------------------------------------------
Document PDR Web PERR NRC staff
----------------------------------------------------------------------------------------------------------------
Comments received................... X X X
Responses to Comments not Addressed X ....... ML033510327
in Statement of Considerations for
Changes to the Adjudicatory
Process: Final Rule.
SECY-01-0137........................ X ....... ML012070084
SRM (1-8-2002) on SECY-01-0137...... X ....... ML020080358
SECY-02-0072........................ ....... ....... ML021150595
SECY-02-0072A....................... ....... ....... ML022600516
SRM (11-13-2003).................... ....... ....... ML033180077
----------------------------------------------------------------------------------------------------------------

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. This final rule changes the
NRC's procedures for the conduct of hearings in 10 CFR part 2. This
final 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 final rule amends the adjudicatory procedures in 10 CFR part 2
and makes conforming changes to other parts of title 10, and, therefore
qualifies as an action eligible for the categorical exclusion from
environmental review under 10 CFR 51.22(c)(1). Therefore, neither an
environmental impact statement or environmental assessment has been
prepared for this final rulemaking.

VI. Paperwork Reduction Act Statement

This final 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 final rule emanates from a longstanding concern that the
Commission's hearing process, using the full panoply of formal
adjudicatory procedures under former Subpart G, is not as efficient or
effective as it could be, thereby resulting in protracted, costly
proceedings. To avoid such protracted proceedings in the future, the
Commission has developed revised rules of procedure in 10 CFR part 2
that provide for a range of hearing procedures tailored to the type of
proceeding and the nature of issues to be resolved in the proceeding.
The

[[Page 2232]]

revised procedures enhance public participation by reducing unnecessary
procedural burdens, produce more timely decisions, and reduce the
resources that participants expend.
The final rule requires most NRC proceedings to be conducted using
more 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 better, quicker, and less-
costly means to resolve disputes.
The Commission will continue to use Subpart G procedures in
enforcement proceedings (unless all parties agree to use Subpart L or N
procedures), in proceedings on the initial application for construction
authorization for a high-level radioactive waste repository and initial
application for a license to receive and possess high-level radioactive
waste at a geologic repository operations area, as well as any
proceeding to construct and operate a uranium enrichment facility under
Section 193 of the Atomic Energy Act of 1954, as amended, (AEA). The
Commission also will use Subpart G procedures in nuclear power reactor
licensing proceedings where resolution of a contention or contested
matter involves resolution of: (1) Issues of material fact relating to
the occurrence of a past event, where the credibility of an eyewitness
may reasonably be expected to be at issue, and/or (2) issues of motive
or intent of the party or eyewitness material to the resolution of the
contested matter.
The final rule 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
will have information that should 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 should 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 choose to pose to witnesses,
a more focused and complete record can be developed.
For less-complex disputes, a fast track option (Subpart N) is
adopted. Under this option, cases can be resolved far more quickly with
substantially reduced burdens to the participants as compared with the
Subpart L hearing process.
Finally, the Commission is adopting ``legislative-style'' hearing
procedures that may be used in the Commission's discretion in two
relatively narrow situations to help develop a record on ``legislative
facts'' that would assist the Commission decide questions of policy and
discretion. The two situations are design certification rulemakings,
and determination of a petition certified to the Commission under Sec.
2.335 seeking consideration of a Commission rule or regulation.
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 final rule
will improve the effectiveness of NRC hearings and at the same time
reduce the overall burdens for all participants in NRC hearings:
Members of the public, interested State and local governmental bodies,
affected, Federally-recognized Indian Tribes, NRC staff, applicants and
licensees.
This constitutes the regulatory analysis for the final rule.

VIII. Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule applies in the context of Commission adjudicatory proceedings
concerning nuclear reactors or nuclear materials. Reactor licensees are
large organizations that do not fall within the definition of a small
business found in Section 3 of the Small Business Regulatory
Enforcement Fairness Act of 1996, 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
final rule because these amendments modify the procedures to be used in
NRC adjudicatory proceedings, and do not involve any provisions that
would impose backfits as defined in 10 CFR Chapter I. Therefore, a
backfit analysis has not been prepared for this final rule.

List 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

[[Page 2233]]

recordkeeping requirements, Waste treatment and disposal.

10 CFR Part 63

Criminal penalties, High-level waste, 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 72

Administrative practice and procedure, Criminal penalties, Manpower
training programs, Nuclear materials, Occupational safety and health,
Radiation protection, Reporting and recordkeeping requirements,
Security measures, Spent fuel, Whistleblowing.

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.

0
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. 552 and 553; the NRC is adopting the
following amendments to 10 CFR Parts 1, 2, 50, 51, 52, 54, 60, 63, 70,
72, 73, 75, 76 and 110.

PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION

0
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; sec. 1704, 112 Stat. 2750 (44
U.S.C. 3504 note).

0
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 to the
Secretary in 10 CFR 2.303 and 2.346;
* * * * *

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

0
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; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504
note).

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). Section 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).

0
4. Section 2.2 is revised to read as follows:

Sec. 2.2 Subparts.

Each subpart other than subpart C of this part 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 rulemaking, and should be read in
conjunction with the subpart governing a particular proceeding. Subpart
I of this part sets forth special procedures to be followed in
proceedings in order to safeguard and prevent disclosure of Restricted
Data.

0
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.

0
6. In Sec. 2.4, a new definition of presiding officer is added, and
the definitions of Commission adjudicatory employee, and NRC personnel
are revised to read as follows:

Sec. 2.4 Definitions.

* * * * *
Commission adjudicatory employee means--
(1) The Commissioners and members of their personal staffs;

[[Page 2234]]

(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, 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. 2.348, 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 Sec. Sec. 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.
* * * * *
Presiding officer means the Commission, an administrative law
judge, an administrative judge, an Atomic Safety and Licensing Board,
or other person designated in accordance with the provisions of this
part, presiding over the conduct of a hearing conducted under the
provisions of this part.
* * * * *

0
7. Section 2.100 is revised to read as follows:

Sec. 2.100 Scope of subpart.

This subpart prescribes the procedures for issuance of a license,
amendment of a license at the request of the licensee, and transfer and
renewal of a license.

0
8. In Sec. 2.101, paragraphs (a)(3)(ii), (b), (f)(1)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, telephone number, and email address (if available) 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, 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 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, telephone number, and
email address (if available) 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 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.
* * * * *
(f)(1) Each application for construction authorization for a HLW
repository at a geologic repository operations area pursuant to parts
60 or 63 of this chapter, and each application for a license to receive
and possess high-level radioactive waste at a geologic repository
operations area pursuant to parts 60 or 63 of this chapter, and any
environmental impact statement required in connection therewith
pursuant to subpart A of part 51 of this chapter shall be processed in
accordance with the provisions of this paragraph.
* * * * *
(g) * * *
(2)(i) With respect to any tendered document that is acceptable for
docketing, the applicant will be requested to:

[[Page 2235]]

(A) Submit to the Director of Nuclear Material Safety and
Safeguards such additional copies as required by the regulations in
part 61 and subpart A of part 51 of this chapter;
(B) 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;
(C) 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
(D) 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)(i)(C) of this section to the executives or bodies.
(ii) All distributed copies shall be completely assembled documents
identified by docket number. However, subsequently distributed
amendments 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 may not make public distribution of those
parts of the application subject to Sec. 2.390(d).
* * * * *

0
9. 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 under this paragraph will also
include a notice of hearing, if appropriate, or will state that any
person whose interest may be affected by the proceeding may, under
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.

0
10. In Sec. 2.103, the section heading and paragraph (a) are revised
to read as follows:

Sec. 2.103 Action on applications for byproduct, source, special
nuclear material, facility and operator licenses.

(a) If the Director of Nuclear Reactor Regulation or the Director
of Nuclear Material Safety and Safeguards, as appropriate, finds that
an application for a byproduct, source, special nuclear material,
facility, or operator license complies with the requirements of the
Act, the Energy Reorganization Act, and this chapter, he will issue a
license. If the license is for a facility, or for receipt of waste
radioactive material from other persons for the purpose of commercial
disposal by the waste disposal licensee, or for a construction
authorization for a HLW repository at a geologic repository operations
area under to parts 60 or 63 of this chapter, or if it is to receive
and possess high-level radioactive waste at a geologic repository
operations area under parts 60 or 63 of this chapter, the Director of
Nuclear Reactor Regulation or the Director of Nuclear Material Safety
and Safeguards, as appropriate, will inform the State, Tribal and local
officials specified in Sec. 2.104(e) of the issuance of the license.
For notice of issuance requirements for licenses issued under part 61
of this chapter, see Sec. 2.106(d).
* * * * *

0
11. In Sec. 2.104, paragraph (e) is revised to read as follows:

Sec. 2.104 Notice of hearing.

* * * * *
(e) The Secretary will give timely notice of the hearing to all
parties and to other persons, if any, entitled by law to notice. The
Secretary will transmit a notice of hearing on an application for a
license for a production or utilization facility, for a license for
receipt of waste radioactive material from other persons for the
purpose of commercial disposal by the waste disposal licensee, for a
license under part 61 of this chapter, for a construction authorization
for a HLW repository at a geologic repository operations area pursuant
to parts 60 or 63 of this chapter, for a license to receive and possess
high-level radioactive waste at a geologic repository operations area
pursuant to parts 60 or 63 of this chapter, and for a license under
part 72 of this chapter to acquire, receive or possess spent fuel for
the purpose of storage in an independent spent fuel storage
installation (ISFSI) to the governor or other appropriate official of
the State and to the chief executive of the municipality in which the
facility is to be located or the activity is to be conducted or, if the
facility is not to be located or the activity conducted within a
municipality, to the chief executive of the county (or to the Tribal
organization, if it is to be so located or conducted within an Indian
reservation). The Secretary will transmit a notice of hearing on an
application for a license under part 72 of this chapter to acquire,
receive or possess spent fuel, high-level radioactive waste or
radioactive material associated with high-level radioactive waste for
the purpose of storage in a monitored retrievable storage installation
(MRS) to the same persons who received the notice of docketing under
Sec. 72.16(e) of this chapter.

0
12. In Sec. 2.105, paragraphs (a)(5) and (a)(6) are revised to read as
follows:

Sec. 2.105 Notice of proposed action.

(a) * * *
(5) A license to receive and possess high-level radioactive waste
at a geologic repository operations area pursuant to parts 60 or 63 of
this chapter, or an amendment thereto, when the license or amendment
would authorize actions which may significantly affect the health and
safety of the public;
(6) An amendment to a construction authorization for a high-level
radioactive waste at a geologic repository operations area pursuant to
parts 60 or 63 of this chapter, when such an amendment would authorize
actions which may significantly affect the health and safety of the
public;
* * * * *

0
13. In Sec. 2.106, paragraph (c) is revised to read as follows:

Sec. 2.106 Notice of issuance.

* * * * *
(c) The Director of Nuclear Material Safety and Safeguards will
also cause to be published in the Federal Register notice of, and will
inform the State, local, and Tribal officials specified in Sec.
2.104(e) of any action with respect to an application for construction
authorization for a high-level radioactive waste repository at a

[[Page 2236]]

geologic repository operations area, a license to receive and possess
high-level radioactive waste at a geologic repository operations area
pursuant to parts 60 or 63 of this chapter, or an amendment to such
license for which a notice of proposed action has been previously
published.
* * * * *

0
14. 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 Commission 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.
* * * * *

0
15. 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 under 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,
under paragraph (a) of this section.

0
16. 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 Sec. Sec. 2.101(a) and 2.390 to the same
extent as if it were an application for a permit or license.
* * * * *

0
17. In Sec. 2.206, a new paragraph (c)(3) is added to read as follows:

Sec. 2.206 Requests for action under this subpart.

* * * * *
(c) * * *
(3) The Secretary is authorized to extend the time for Commission
review on its own motion of a Director's denial under paragraph (c) of
this section.

0
18. 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.
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, and substitution.
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 Evidence at a hearing.
2.338 Settlement of issues; alternative dispute resolution.
2.339 Expedited decisionmaking procedure.
2.340 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.
2.341 Review of decisions and actions of a presiding officer.
2.342 Stays of decisions.
2.343 Oral argument.
2.344 Final decision.
2.345 Petition for reconsideration.
2.346 Authority of the Secretary.
2.347 Ex parte communications.
2.348 Separation of functions.
2.390 Public inspections, exemptions, requests for withholding.

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 by:
(1) First class mail addressed to: Office of the Secretary, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:
Rulemakings and Adjudications Staff;
(2) Courier, express mail, and expedited delivery services: Office
of the Secretary, Sixteenth Floor, One White Flint North, 11555
Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and
Adjudications Staff;
(3) E-mail addressed to the Office of the Secretary, U.S. Nuclear
Regulatory Commission, HEARINGDOCKET@NRC.GOV;
(4) By facsimile transmission addressed to the Office of the
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC,
Attention: Rulemakings and Adjudications Staff, at (301) 415-1101;
verification number is (301) 415-1966.
(b) All documents offered for filing must be accompanied by proof
of

[[Page 2237]]

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 Sec. Sec. 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 section if an original and two (2) 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 or courier, by express mail or expedited delivery service, by
first class, certified or registered mail, by e-mail or facsimile
transmission, or as otherwise authorized by law. If service is made by
e-mail or facsimile transmission, the original signed copy must be
transmitted to the Secretary by personal delivery, courier, express
mail or expedited delivery service, or first class, certified, or
registered mail. In addition, if service is by e-mail, a paper copy
must also be served by any other service method permitted under this
paragraph. 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 or expedited delivery service, 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.,
personal delivery or courier, express mail or expedited delivery
service, facsimile or electronic transmission, 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 courier, express mail or expedited
delivery service, 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, unless the presiding officer directs
otherwise.
(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) Courier, express mail, and expedited delivery services: Office
of the Secretary, Sixteenth Floor, One White Flint North, 11555
Rockville Pike, Rockville, MD 20852, Attention: Rulemakings and
Adjudications Staff.
(iii) E-mail addressed to the Secretary, U.S. Nuclear Regulatory
Commission, HEARINGDOCKET@NRC.GOV; and
(iv) Facsimile transmission addressed to the Office of the
Secretary, U.S. Nuclear Regulatory Commission, Washington, DC,
Attention: Rulemakings and Adjudications Staff, at (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 office with that person's clerk or other person in
charge or, if there is no one in charge, leaving it in a

[[Page 2238]]

conspicuous place in the office, or if the office is closed or the
person to be served has no office, leaving it at his 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 thereof, and service of a
copy by another method of service permitted in paragraph (c) of this
section;
(4) By facsimile transmission, on transmission thereof 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 the facsimile transmission to an
addressee was not deliverable or is otherwise informed that a
transmission was unreadable, transmission to that person is not
considered complete. In such an event, the sender shall reserve the
document in accordance with paragraph (e)(1) through (e)(4) of this
section; 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.
(f) Service on the NRC staff. (1) Service shall be made upon the
NRC staff of all papers and documents required to be filed with parties
and the presiding officer in all proceedings, including those
proceedings where the NRC staff informs the presiding officer of its
determination not to participate as a party.
(2) If the NRC staff decides not to participate as a party in a
proceeding, it shall, in its notification to the presiding officer and
parties of its determination not to participate, designate a person and
address for service of papers and documents.

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 first class mail, five (5) days
are added to the prescribed period. Two (2) days are added to the
prescribed period when a document is served by express mail or
expedited delivery service. No time is added when the notice or paper
is served in person, by courier, electronic mail or facsimile
transmission. The period allotted for the recipient's response
commences upon confirmation of receipt under Sec. 2.305(e)(3) or (4),
except that if a document is served in person, by courier, electronic
transmission, or facsimile, and is received by a party after 5 p.m., in
the recipient's time zone on the date of transmission, the recipient's
response date is extended by one (1) 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 under Sec. 2.313(a)
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 paragraph (e) of this
section, the Commission, presiding officer or the Atomic Safety and
Licensing Board designated to rule on the request for hearing and/or
petition for leave to intervene will grant the request/petition if it
determines that the requestor/petitioner has standing under the
provisions of paragraph (d) of this section and has proposed at least
one admissible contention that meets the requirements of paragraph (f)
of this section. In ruling on the request for hearing/petition to
intervene submitted by petitioners seeking to intervene in the
proceeding on the HLW 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 the direct or indirect transfer of control
of an NRC license when the transfer requires prior approval of the NRC
under the Commission's regulations, governing statute, or pursuant to a
license condition, twenty (20) days from the date of publication of the
notice in the Federal Register.
(2) In proceedings for the initial authorization to construct a
high-level radioactive waste geologic repository, and the initial
licensee to receive and process high level radioactive waste at a
geological repository operations area, thirty (30) days from the date
of publication of the notice in the Federal Register.
(3) In proceedings for which a Federal Register notice of agency
action is published (other than a proceeding covered by paragraphs
(b)(1) or (b)(2) of this section), not later than:
(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, which may not, with the exception of a notice provided under
Sec. 2.102(d)(3), be less than 60 days from the date of publication of
the notice in the Federal Register;
(ii) The time provided in Sec. 2.102(d)(3); or
(iii) If no period is specified, sixty (60) days from the date of
publication of the notice.
(4) In proceedings for which a Federal Register notice of agency
action is not published, not later than the latest of:
(i) Sixty (60) days after publication of notice on the NRC Web site
at http://www.nrc.gov/public-involve/major-actions.html, or

[[Page 2239]]

(ii) Sixty (60) days after the requestor receives actual notice of
a pending application, but not more than sixty (60) days after agency
action on the application.
(5) For orders issued under Sec. 2.202 the time period provided
therein.
(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 the factors in
paragraphs (c)(1)(i) through (c)(1)(viii) of this section 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, local governmental body, and affected, Federally-
recognized Indian Tribe. (i) A State, local governmental body (county,
municipality or other subdivision), and any affected Federally-
recognized Indian Tribe that desires to participate as a party in the
proceeding shall submit a request for hearing/petition to intervene.
The request/petition must meet the requirements of this section
(including the contention requirements in paragraph (f) of this
section), except that a State, local governmental body or affected
Federally-recognized Indian Tribe that wishes to be a party in a
proceeding for a facility located within its boundaries need not
address the standing requirements under this paragraph. The State,
local governmental body, and affected Federally-recognized Indian Tribe
shall, in its request/petition, each designate a single representative
for the hearing.
(ii) 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 designated representative of the State, a single designated
representative for each local governmental body (county, municipality
or other subdivision), and a single designated representative for each
affected Federally-recognized Indian Tribe. In determining the request/
petition of a State, local governmental body, and any affected
Federally-recognized Indian Tribe that wishes to be a party in a
proceeding for a facility located within its boundaries, 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 shall not require a further demonstration of
standing.
(iii) In any proceeding on an application for a construction
authorization for a high-level radioactive waste repository at a
geologic repository operations area under parts 60 or 63 of this
chapter, or an application for a license to receive and possess high-
level radioactive waste at a geologic repository operations area under
parts 60 or 63 of this chapter, the Commission shall permit
intervention by the State and local governmental body (county,
municipality or other subdivision) in which such an area is located and
by any affected Federally-recognized Indian Tribe as defined in parts
60 or 63 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 in Sec. 2.309(d)(1)-(2), among other things. In enforcement
proceedings, the licensee or other person against whom the action is
taken shall have standing.
(e) Discretionary Intervention. The presiding officer may consider
a request for discretionary intervention when at least one requestor/
petitioner has established standing and at least one admissible
contention has been admitted so that a hearing will be held. 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 paragraph
(d)(1) of this section. Accordingly, in addition to addressing the
factors in paragraph (d)(1) of this section, 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--
(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. For

[[Page 2240]]

each contention, the request or petition must:
(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 or new
contentions filed after the initial filing only with leave of the
presiding officer upon a showing that--
(i) The information upon which the amended or new contention is
based was not previously available;
(ii) The information upon which the amended or new contention is
based is materially different than information previously available;
and
(iii) The amended or new contention has been submitted in a timely
fashion based on the availability of the subsequent information.
(3) If two or more requestors/petitioners seek to co-sponsor a
contention, the requestors/petitioners shall jointly designate a
representative who shall have the authority to act for the requestors/
petitioners with respect to that contention. If a requestor/petitioner
seeks to adopt the contention of another sponsoring requestor/
petitioner, the requestor/petitioner who seeks to adopt the contention
must either agree that the sponsoring requestor/petitioner shall act as
the representative with respect to that contention, or jointly
designate with the sponsoring requestor/petitioner a representative who
shall have the authority to act for the requestors/petitioners with
respect to that contention.
(g) Selection of hearing procedures. A request for hearing and/or
petition for leave to intervene may also address the selection of
hearing procedures, taking into account the provisions of Sec. 2.310.
If a request/petition relies upon Sec. 2.310(d), the request/petition
must demonstrate, by reference to the contention and the bases provided
and the specific procedures in subpart G of this part, that resolution
of the contention necessitates resolution of material issues of fact
which may be best determined through the use of the identified
procedures.
(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
seven (7) days after service of that answer.
(3) No other written answers or replies will be entertained.
(i) Decision on request/petition. The presiding officer shall,
within forty-five (45) days after the filing of answers and replies
under paragraph (h) of this section, issue a decision on each request
for hearing/petition to intervene, absent an extension from the
Commission.

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) Except as determined through the application of paragraphs (b)
through (h) of this section, proceedings for the grant, renewal,
licensee-initiated amendment, or termination of licenses or permits
subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and
72 of this chapter may be conducted under the procedures of subpart L
of this part.
(b) 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.
(c) 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.
(d) In proceedings for the grant, renewal, licensee-initiated
amendment, or termination of licenses or permits for nuclear power
reactors, where the presiding officer by order finds that resolution of
the contention or contested matter necessitates resolution of issues of
material fact relating to the occurrence of a past activity, where the
credibility of an eyewitness may reasonably be expected to be at issue,
and/or issues of motive or intent of the party or eyewitness material
to the resolution of the contested matter, the hearing for resolution
of that contention or contested matter will be conducted under subpart
G of this part.
(e) 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 must be conducted under the procedures of
subpart L of this part, unless a party requests that the proceeding be
conducted under the procedures of subpart K of this part, or if all
parties agree and jointly request that the proceeding be conducted
under the procedures of subpart N of this part.

[[Page 2241]]

(f) Proceedings on an application for initial construction
authorization for a high-level radioactive waste repository at a
geologic repository operations area noticed pursuant to Sec. Sec.
2.101(f)(8) or 2.105(a)(5), and proceedings on an initial application
for a license 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 a
construction authorization for a high-level radioactive geologic
repository, and amendments to a license to receive and possess high
level radioactive waste at a high level waste geologic repository may
be conducted under the procedures of subpart L of this part, unless all
parties agree and jointly request that the proceeding be conducted
under the procedures of subpart N of this part.
(g) 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 shall be conducted under
the procedures of subpart M of this part, unless the Commission
determines otherwise in a case-specific order.
(h) Except as determined through the application of paragraphs (b)
through (g) of this section, proceedings for the grant, renewal,
licensee-initiated amendment, or termination of licenses or permits
subject to parts 30, 32 through 36, 39, 40, 50, 52, 54, 55, 61, 70 and
72 of this chapter, and proceedings on an application for the direct or
indirect transfer of control of an NRC license 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.
(i) In design certification rulemaking proceedings under part 52 of
this chapter, any informal hearing held under Sec. 52.51 of this
chapter must be conducted under the procedures of subpart O of this
part.
(j) In proceedings where the Commission grants a petition filed
under Sec. 2.335(b), the Commission may, in its discretion, conduct a
hearing under the procedures of subpart O of this part to assist the
Commission in developing a record on the matters raised in the
petition.

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 ten (10) days after the service of the order.
The appeal must be initiated by the filing of a notice of appeal and
accompanying supporting brief. Any party who opposes the appeal may
file a brief in opposition to the appeal within ten (10) days after
service of the appeal. The supporting brief and any answer must conform
to the requirements of Sec. 2.341(c)(2). No other appeals from rulings
on requests for hearings are allowed.
(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 a hearing procedure may be appealed by any
party on the question as to whether the selection of the particular
hearing procedures was in clear contravention of the criteria set forth
in Sec. 2.310. The appeal must be filed with the Commission no later
than ten (10) days after issuance of the order selecting a hearing
procedure.

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, and substitution.

(a) Designation of presiding officer. The Commission may provide in
the notice of hearing that one or more members of the Commission, an
administrative law judge, an administrative judge, an Atomic Safety and
Licensing Board, or a named officer who has been delegated final
authority in the matter, shall be the presiding officer. The Commission
alone shall designate the presiding officer in a hearing conducted
under subpart O. If the Commission does not designate the presiding
officer for a hearing under subparts G, J, K, L, M, or N of this part,
then the Chief Administrative Judge shall issue an order designating:
(1) An Atomic Safety and Licensing Board appointed under Section
191 of the Atomic Energy Act of 1954, as amended, or an administrative
law judge appointed pursuant to 5 U.S.C. 3105, for a hearing conducted
under subparts G, J, K, L, or N of this part; or
(2) An Atomic Safety and Licensing Board, an administrative law
judge, or an administrative judge for a hearing conducted under subpart
M of this part.
(b) Disqualification. (1) 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.
(2) If a party believes that a 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 Licensing 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 Licensing Board
member does not disqualify himself, the motion must be referred to the
Commission. The Commission will determine the sufficiency of the
grounds alleged.
(c) Unavailability. 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;

[[Page 2242]]

(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.
(d) Substitution. 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 or entity 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 advise the person suspended of the right 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. 2.342(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. 2.342(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 (including persons who are
affiliated with or represented by 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 an interested State, local
governmental body (county, municipality or other subdivision), and
affected, Federally-recognized Indian Tribe, which has not been
admitted as a party under Sec. 2.309, a reasonable opportunity to
participate in a hearing. Each State, local governmental body, and
affected Federally-recognized Indian Tribe shall, in its request to
participate in a hearing, each designate a single representative for
the hearing. The representative shall be permitted to introduce
evidence, interrogate witnesses where cross-examination by the parties
is permitted, advise the Commission without requiring the
representative to take a position with respect to the issue, file
proposed findings in those proceedings where findings are permitted,
and petition for review by the Commission under Sec. 2.341 with
respect to the admitted contentions. The representative shall identify
those contentions on which it will participate in advance of any
hearing held.
(d) If a matter is taken up by the Commission under Sec. 2.341 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.'' Such a
person shall submit the

[[Page 2243]]

amicus brief together with 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 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 or administrative law 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 or an administrative law judge, the Chief Administrative Judge
will designate by order the administrative judge or administrative law
judge, as appropriate, 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 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 a 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
Sec. Sec. 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 irrelevant,
immaterial, unreliable, duplicative or cumulative.
(e) Restrict irrelevant, immaterial, unreliable, duplicative or
cumulative 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 the presiding officer's 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;
(p) Dispose of motions by written order or by oral ruling during
the course of a hearing or prehearing conference. The presiding officer
should ensure that parties not present for the oral ruling are notified
promptly of the ruling;
(q) Issue orders necessary to carry out the presiding officer's
duties and responsibilities under this part; and
(r) 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.

[[Page 2244]]

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 shall study the written testimony and sit
with the presiding officer to hear the presentation and, where
permitted in the proceeding, the cross-examination by the parties of
all witnesses on the issues of the interrogators' expertise. The
interrogators shall take a leading role in examining the witnesses 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;
(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; or
(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. A motion must be
made no later than ten (10) days after the occurrence or circumstance
from which the motion arises. 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

[[Page 2245]]

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. 2.341(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; and
(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) 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 this subpart. 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 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 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

[[Page 2246]]

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 Sec. Sec. 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 Sec. Sec. 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 of this part, 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 of this part.
(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, where permitted,
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 where
cross-examination is permitted; 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 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 the presiding officer.

When, in the opinion of the presiding officer, time permits and the
nature of the proceeding and the public interest warrant, the presiding
officer 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.

Sec. 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. Sec.
2.336 and 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 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

[[Page 2247]]

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 against the NRC staff (as otherwise permitted by the
provisions of this part) before the publication of the pertinent
document will not adversely affect completion of the document and 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:
(a) May limit the number of witnesses whose testimony may be
cumulative;
(b) May strike argumentative, repetitious, cumulative, unreliable,
immaterial, or irrelevant evidence;
(c) Shall require each party or participant who requests permission
to conduct cross-examination to file a cross-examination plan for each
witness or panel of witnesses the party or participant proposes to
cross-examine;
(d) Must ensure that each party or participant permitted to conduct
cross-examination conducts its cross-examination in conformance with
the party's or participant's cross-examination plan filed with the
presiding officer;
(e) May take necessary and proper measures to prevent
argumentative, repetitious, or cumulative cross-examination; and
(f) May impose such time limitations on arguments as the presiding
officer 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 presiding 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, no 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 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 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 ther