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

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

[Federal Register: January 14, 2004 (Volume 69, Number 9)]
[Rules and Regulations]
[Page 2231-2280]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja04-9]

[[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 thereof to a particular aspect or aspects of the subject
matter of the proceeding, in the context of this section, should be
waived or an exception made. The Commission may, among other things, on
the basis of the petition, affidavits, and any response, determine
whether the application of the specified rule or regulation (or
provision thereof) should be waived or an exception be made. The
Commission may direct further proceedings as it considers appropriate
to aid its determination.
(e) Whether or not the procedure in paragraph (b) of this section
is available, a party to an initial or renewal licensing proceeding may
file a petition for rulemaking under Sec. 2.802.

Sec. 2.336 General discovery.

(a) Except for proceedings conducted under subparts G and J of this
part or as otherwise ordered by the Commission, the presiding officer
or the Atomic Safety and Licensing Board assigned to the proceeding,
all parties, other than the NRC staff, to any proceeding subject to
this part shall, within thirty (30) days of the issuance of the order
granting a request for hearing or petition to intervene and without
further order or request from any party, disclose and provide:

[[Page 2248]]

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

Sec. 2.337 Evidence at a hearing.

(a) Admissibility. Only relevant, material, and reliable evidence
which is not unduly repetitious will be admitted. Immaterial or
irrelevant parts of an admissible document will be segregated and
excluded so far as is practicable.
(b) Objections. An objection to evidence must briefly state the
grounds of objection. The transcript must include the objection, the
grounds, and the ruling. Exception to an adverse ruling is preserved
without notation on-the-record.
(c) Offer of proof. An offer of proof, made in connection with an
objection to a ruling of the presiding officer excluding or rejecting
proffered oral testimony, must consist of a statement of the substance
of the proffered evidence. If the excluded evidence is in written form,
a copy must be marked for identification. Rejected exhibits, adequately
marked for identification, must be retained in the record.
(d) Exhibits. A written exhibit will not be received in evidence
unless the original and two copies are offered and a copy is furnished
to each party, or the parties have been previously furnished with
copies or the presiding officer directs otherwise. The presiding
officer may permit a party to replace with a true copy an original
document admitted in evidence.
(e) Official record. An official record of a government agency or
entry in an official record may be evidenced by an official publication
or by a copy attested by the officer having legal custody of the record
and accompanied by a certificate of his custody.
(f) Official notice. (1) The Commission or the presiding officer
may take official notice of any fact of which a court of the United
States may take judicial notice or of any technical or scientific fact
within the knowledge of the Commission as an expert body. Each fact
officially noticed under this paragraph must be specified in the record
with sufficient particularity to advise the parties of the matters
which have been noticed or brought to the attention of the parties
before final decision and each party adversely affected by the decision
shall be given opportunity to controvert the fact.
(2) If a decision is stated to rest in whole or in part on official
notice of a fact which the parties have not had a prior opportunity to
controvert, a party may controvert the fact by filing an

[[Page 2249]]

appeal from an initial decision or a petition for reconsideration of a
final decision. The appeal must clearly and concisely set forth the
information relied upon to controvert the fact.
(g) Proceedings involving applications--(1) Facility construction
permits. In a proceeding involving an application for construction
permit for a production or utilization facility, the NRC staff shall
offer into evidence any report submitted by the ACRS in the proceeding
in compliance with section 182(b) of the Act, any safety evaluation
prepared by the NRC staff, and any environmental impact statement
prepared in the proceeding under subpart A of part 51 of this chapter
by the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, or his or her designee.
(2) Other applications where the NRC staff is a party. In a
proceeding involving an application for other than a construction
permit for a production or utilization facility, the NRC staff shall
offer into evidence:
(i) Any report submitted by the ACRS in the proceeding in
compliance with section 182(b) of the Act;
(ii) At the discretion of the NRC staff, a safety evaluation
prepared by the NRC staff and/or NRC staff testimony and evidence on
the contention/controverted matter prepared in advance of the
completion of the safety evaluation;
(iii) Any NRC staff statement of position on the contention/
controverted matter provided to the presiding officer under Sec. Sec.
2.1202(a); and
(iv) Any environmental impact statement or environmental assessment
prepared in the proceeding under subpart A of part 51 of this chapter
by the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, or his or her designee
if there is any, but only if there are contentions/controverted matters
with respect to the adequacy of the environmental impact statement or
environmental assessment.
(3) Other applications where the NRC staff is not a party. In a
proceeding involving an application for other than a construction
permit for a production or utilization facility, the NRC staff shall
offer into evidence, and (with the exception of an ACRS report) provide
one or more sponsoring witnesses, for:
(i) Any report submitted by the ACRS in the proceeding in
compliance with section 182(b) of the Act;
(ii) At the discretion of the NRC staff, a safety evaluation
prepared by the NRC staff and/or NRC staff testimony and evidence on
the contention/controverted matter prepared in advance of the
completion of the safety evaluation;
(iii) Any NRC staff statement of position on the contention/
controverted matter under Sec. 2.1202(a); and
(iv) Any environmental impact statement or environmental assessment
prepared in the proceeding under subpart A of part 51 of this chapter
by the Director of Nuclear Reactor Regulation or Director of Nuclear
Material Safety and Safeguards, as appropriate, or his or her designee
if there is any, but only if there are contentions/controverted matters
with respect to the adequacy of the environmental impact statement or
environmental assessment.

Sec. 2.338 Settlement of issues; alternative dispute resolution.

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

[[Page 2250]]

(3) A statement that the order has the same force and effect as an
order made after full hearing; and
(4) A statement that matters identified in the agreement, required
to be adjudicated have been resolved by the proposed settlement
agreement and consent order.
(i) Approval of settlement agreement. Following issuance of a
notice of hearing, a settlement must be approved by the presiding
officer or the Commission as appropriate in order to be binding in the
proceeding. The presiding officer or Commission may order the
adjudication of the issues that the presiding officer or Commission
finds is required in the public interest to dispose of the proceeding.
In an enforcement proceeding under subpart B of this part, the
presiding officer shall accord due weight to the position of the NRC
staff when reviewing the settlement. If approved, the terms of the
settlement or compromise must be embodied in a decision or order.
Settlements approved by a presiding officer are subject to the
Commission's review in accordance with Sec. 2.341.

Sec. 2.339 Expedited decisionmaking procedure.

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

Sec. 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.

(a) Production or utilization facility operating license. In any
initial decision in a contested proceeding on an application for an
operating license for a production or utilization facility, the
presiding officer shall make findings of fact and conclusions of law on
the matters put into controversy by the parties to the proceeding and
on matters which have been determined to be the issues in the
proceeding by the Commission or the presiding officer. Matters not put
into controversy by the parties will be examined and decided by the
presiding officer only where he or she determines that a serious
safety, environmental, or common defense and security matter exists,
and the Commission approves such examination and decision upon referral
of the question by the presiding officer. Depending on the resolution
of those matters, the Director of Nuclear Reactor Regulation or
Director of Nuclear Material Safety and Safeguards, as appropriate,
after making the requisite findings, will issue, deny or appropriately
condition the license.
(b) Immediate effectiveness of certain decisions. Except as
provided in paragraphs (d) through (g) of this section, or as otherwise
ordered by the Commission in special circumstances, an initial decision
directing the issuance or amendment of a construction permit, a
construction authorization, an operating license or a license under 10
CFR Part 72 to store spent fuel in an independent spent fuel storage
installation (ISFSI) at a reactor site is effective immediately upon
issuance unless the presiding officer finds that good cause has been
shown by a party why the initial decision should not become immediately
effective, subject to review thereof and further decision by the
Commission upon petition for review filed by any party under Sec.
2.341 or upon its own motion.
(c) Issuance of license after initial decision. Except as provided
in paragraphs (d) through (g) of this section, or as otherwise ordered
by the Commission in special circumstances, the Director of Nuclear
Reactor Regulation or Director of Nuclear Material Safety and
Safeguards, as appropriate, notwithstanding the filing or granting of a
petition for review, shall issue a construction permit, a construction
authorization, an operating license, or a license under 10 CFR part 72
to store spent fuel in an independent spent fuel storage installation
at a reactor site, or amendments thereto, authorized by an initial
decision, within ten (10) days from the date of issuance of the
decision.
(d) Immediate effectiveness of initial decisions on a ISFSI and
MRS. An initial decision directing the issuance of an initial license
for the construction and operation of an independent spent fuel storage
installation (ISFSI) located at a site other than a reactor site or a
monitored retrievable storage installation (MRS) under 10 CFR Part 72
becomes effective only upon order of the Commission. The Director of
Nuclear Material Safety and Safeguards may not issue an initial license
for the construction and operation of an independent spent fuel storage
installation (ISFSI) located at a site other than a reactor site or a
monitored retrievable storage installation (MRS) under 10 CFR part 72
until expressly authorized to do so by the Commission.
(e) [Reserved].
(f) Nuclear power reactor construction permits--(1) Presiding
officers. Presiding officers shall hear and decide all issues that come
before them, indicating in their decisions the type of licensing
action, if any, which their decision would authorize. The presiding
officer's decisions concerning construction permits are not effective
until the Commission actions outlined in paragraph (f)(2) of this
section have taken place.
(2) Commission. Within sixty (60) days of the service of any
presiding officer decision that would otherwise authorize issuance of a
construction permit, the Commission will seek to issue a decision on
any stay motions that are timely filed. These motions must be filed as
provided by Sec. 2.341. For the purpose of this paragraph, a stay
motion is one that seeks to defer the effectiveness of a presiding
officer decision beyond the period necessary for the Commission action
described herein. If no stay papers are filed, the Commission will,
within the same time period (or earlier if possible), analyze the
record and construction permit decision below on its own motion and
will seek to issue a decision on whether a stay is warranted. However,
the

[[Page 2251]]

Commission will not decide that a stay is warranted without giving the
affected parties an opportunity to be heard. The initial decision will
be considered stayed pending the Commission's decision. In deciding
these stay questions, the Commission shall employ the procedures set
out in Sec. 2.342.
(g) Nuclear power reactor operating licenses--(1) Presiding
officers. Presiding officers shall hear and decide all issues that come
before them, indicating in their decisions the type of licensing
action, if any, which their decision would authorize. A presiding
officer's decision authorizing issuance of an operating license may not
become effective if it authorizes operating at greater than five (5)
percent of rated power until the Commission actions outlined in
paragraph (g)(2) of this section have taken place. If a decision
authorizes operation up to five (5) percent, the decision is effective
and the Director shall issue the appropriate license in accordance with
paragraph (c) of this section.
(2) The Commission. (i) Reserving the power to step in at an
earlier time, the Commission will, upon receipt of the presiding
officer's decision authorizing issuance of an operating license, other
than a decision authorizing only fuel loading and low power (up to five
(5) percent of rated power) testing, review the matter on its own
motion to determine whether to stay the effectiveness of the decision.
An operating license decision will be stayed by the Commission, insofar
as it authorizes other than fuel loading and low power testing, if it
determines that it is in the public interest to do so, based on a
consideration of the gravity of the substantive issue, the likelihood
that it has been resolved incorrectly below, the degree to which
correct resolution of the issue would be prejudiced by operation
pending review, and other relevant public interest factors.
(ii) For operating license decisions other than those authorizing
only fuel loading and low power testing consistent with the target
schedule set forth below, the parties may file brief comments with the
Commission pointing out matters which, in their view, pertain to the
immediate effectiveness issue. To be considered, these comments must be
received within ten (10) days of the presiding officer's decision.
However, the Commission may dispense with comments by so advising the
parties. An extensive stay will not be issued without giving the
affected parties an opportunity to be heard.
(iii) The Commission intends to issue a stay decision within thirty
(30) days of receipt of the presiding officer's decision. The presiding
officer's initial decision will be considered stayed pending the
Commission's decision insofar as it may authorize operations other than
fuel loading and low power (up to five (5) percent of rated power)
testing.
(iv) In announcing a stay decision, the Commission may allow the
proceeding to run its ordinary course or give instructions as to the
future handling of the proceeding. Furthermore, the Commission may, in
a particular case, determine that compliance with existing regulations
and policies may no longer be sufficient to warrant approval of a
license application and may alter those regulations and policies.
(h) Lack of prejudice of Commission effectiveness decision. The
Commission's effectiveness determination is entirely without prejudice
to proceedings under Sec. Sec. 2.341 or 2.342.

Sec. 2.341 Review of decisions and actions of a presiding officer.

(a)(1) Except for requests for review or appeals of actions under
Sec. 2.311 or in a proceeding on the high-level radioactive waste
repository (which are governed by Sec. 2.1015), review of decisions
and actions of a presiding officer are treated under this section.
(2) Within forty (40) days after the date of a decision or action
by a presiding officer, or within forty (40) days after a petition for
review of the decision or action has been served under paragraph (b) of
this section, whichever is greater, the Commission may review the
decision or action on its own motion, unless the Commission, in its
discretion, extends the time for its review.
(b)(1) Within fifteen (15) days after service of a full or partial
initial decision by a presiding officer, and within fifteen (15) days
after service of any other decision or action by a presiding officer
with respect to which a petition for review is authorized by this part,
a party may file a petition for review with the Commission on the
grounds specified in paragraph (b)(4) of this section. Unless otherwise
authorized by law, a party to an NRC proceeding must file a petition
for Commission review before seeking judicial review of an agency
action.
(2) A petition for review under this paragraph may not be longer
than twenty-five (25) pages, and must contain the following:
(i) A concise summary of the decision or action of which review is
sought;
(ii) A statement (including record citation) where the matters of
fact or law raised in the petition for review were previously raised
before the presiding officer and, if they were not, why they could not
have been raised;
(iii) A concise statement why in the petitioner's view the decision
or action is erroneous; and
(iv) A concise statement why Commission review should be exercised.
(3) Any other party to the proceeding may, within ten (10) days
after service of a petition for review, file an answer supporting or
opposing Commission review. This answer may not be longer than twenty-
five (25) pages and should concisely address the matters in paragraph
(b)(2) of this section to the extent appropriate. The petitioning party
may file a reply brief within five (5) days of service of any answer.
This reply brief may not be longer than five (5) pages.
(4) The petition for review may be granted in the discretion of the
Commission, giving due weight to the existence of a substantial
question with respect to the following considerations:
(i) A finding of material fact is clearly erroneous or in conflict
with a finding as to the same fact in a different proceeding;
(ii) A necessary legal conclusion is without governing precedent or
is a departure from or contrary to established law;
(iii) A substantial and important question of law, policy, or
discretion has been raised;
(iv) The conduct of the proceeding involved a prejudicial
procedural error; or
(v) Any other consideration which the Commission may deem to be in
the public interest.
(5) A petition for review will not be granted to the extent that it
relies on matters that could have been but were not raised before the
presiding officer. A matter raised sua sponte by a presiding officer
has been raised before the presiding officer for the purpose of this
section.
(6) A petition for review will not be granted as to issues raised
before the presiding officer on a pending motion for reconsideration.
(c) (1) If a petition for review is granted, the Commission will
issue an order specifying the issues to be reviewed and designating the
parties to the review proceeding. The Commission may, in its
discretion, decide the matter on the basis of the petition for review
or it may specify whether any briefs may be filed.
(2) Unless the Commission orders otherwise, any briefs on review
may not exceed thirty (30) pages in length,

[[Page 2252]]

exclusive of pages containing the table of contents, table of
citations, and any addendum containing appropriate exhibits, statutes,
or regulations. A brief in excess of ten (10) pages must contain a
table of contents with page references and a table of cases
(alphabetically arranged), cited statutes, regulations and other
authorities, with references to the pages of the brief where they are
cited.
(d) Petitions for reconsideration of Commission decisions granting
or denying review in whole or in part will not be entertained. A
petition for reconsideration of a Commission decision after review may
be filed within ten (10) days, but is not necessary for exhaustion of
administrative remedies. However, if a petition for reconsideration is
filed, the Commission decision is not final until the petition is
decided. Any petition for reconsideration will be evaluated against the
standard in Sec. 2.323(e).
(e) Neither the filing nor the granting of a petition under this
section stays the effect of the decision or action of the presiding
officer, unless the Commission orders otherwise.
(f) Interlocutory review. (1) A question certified to the
Commission under Sec. 2.319(l), or a ruling referred or issue
certified to the Commission under Sec. 2.323(f), will be reviewed if
the certification or referral raises significant and novel legal or
policy issues, and resolution of the issues would materially advance
the orderly disposition of the proceeding.
(2) The Commission may, in its discretion, grant interlocutory
review at the request of a party despite the absence of a referral or
certification by the presiding officer. A petition and answer to it
must be filed within the times and in the form prescribed in paragraph
(b) of this section and must be treated in accordance with the general
provisions of this section. The petition for interlocutory review will
be granted only if the party demonstrates that the issue for which the
party seeks interlocutory review:
(i) Threatens the party adversely affected by it with immediate and
serious irreparable impact which, as a practical matter, could not be
alleviated through a petition for review of the presiding officer's
final decision; or
(ii) Affects the basic structure of the proceeding in a pervasive
or unusual manner.

Sec. 2.342 Stays of decisions.

(a) Within ten (10) days after service of a decision or action of a
presiding officer, any party to the proceeding may file an application
for a stay of the effectiveness of the decision or action pending
filing of and a decision on a petition for review. This application may
be filed with the Commission or the presiding officer, but not both at
the same time.
(b) An application for a stay may be no longer than ten (10) pages,
exclusive of affidavits, and must contain the following:
(1) A concise summary of the decision or action which is requested
to be stayed;
(2) A concise statement of the grounds for stay, with reference to
the factors specified in paragraph (e) of this section; and
(3) To the extent that an application for a stay relies on facts
subject to dispute, appropriate references to the record or affidavits
by knowledgeable persons.
(c) Service of an application for a stay on the other parties must
be by the same method, e.g., electronic or facsimile transmission,
mail, as the method for filing the application with the Commission or
the presiding officer.
(d) Within ten (10) days after service of an application for a stay
under this section, any party may file an answer supporting or opposing
the granting of a stay. This answer may not be longer than ten (10)
pages, exclusive of affidavits, and should concisely address the
matters in paragraph (b) of this section to the extent appropriate.
Further replies to answers will not be entertained. Filing of and
service of an answer on the other parties must be by the same method,
e.g., electronic or facsimile transmission, mail, as the method for
filing the application for the stay.
(e) In determining whether to grant or deny an application for a
stay, the Commission or presiding officer will consider:
(1) Whether the moving party has made a strong showing that it is
likely to prevail on the merits;
(2) Whether the party will be irreparably injured unless a stay is
granted;
(3) Whether the granting of a stay would harm other parties; and
(4) Where the public interest lies.
(f) In extraordinary cases, where prompt application is made under
this section, the Commission or presiding officer may grant a temporary
stay to preserve the status quo without waiting for filing of any
answer. The application may be made orally provided the application is
promptly confirmed by electronic or facsimile transmission message. Any
party applying under this paragraph shall make all reasonable efforts
to inform the other parties of the application, orally if made orally.

Sec. 2.343 Oral argument.

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

Sec. 2.344 Final decision.

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

Sec. 2.345 Petition for reconsideration.

(a)(1) Any petition for reconsideration of a final decision must be
filed by a party within ten (10) days after the date of the decision.
(2) Petitions for reconsideration of Commission decisions are
subject to the requirements in Sec. 2.341(d).
(b) A petition for reconsideration must demonstrate a compelling
circumstance, such as the existence of a clear and material error in a
decision, which could not have been reasonably anticipated, which
renders the decision invalid. The petition must state the relief
sought. Within ten (10) days after a petition for reconsideration has
been served, any other party may file an answer in opposition to or in
support of the petition.
(c) Neither the filing nor the granting of the petition stays the
decision unless the Commission orders otherwise.

Sec. 2.346 Authority of the Secretary.

When briefs, motions or other papers are submitted to the
Commission itself, as opposed to the officers who have been delegated
authority to act for the Commission, the Secretary or the Assistant
Secretary is authorized to:
(a) Prescribe procedures for the filing of briefs, motions, or
other pleadings, when the schedules differ from those prescribed by the
rules of this part or when the rules of this part do not prescribe a
schedule;
(b) Rule on motions for extensions of time;
(c) Reject motions, briefs, pleadings, and other documents filed
with the

[[Page 2253]]

Commission later then the time prescribed by the Secretary or the
Assistant Secretary or established by an order, rule or regulation of
the Commission unless good cause is shown for the late filing;
(d) Prescribe all procedural arrangements relating to any oral
argument to be held before the Commission;
(e) Extend the time for the Commission to rule on a petition for
review under Sec. Sec. 2.311 and 2.341;
(f) Extend the time for the Commission to grant review on its own
motion under Sec. 2.341;
(g) Direct pleadings improperly filed before the Commission to the
appropriate presiding officer for action;
(h) Deny a request for hearings, where the request fails to comply
with the Commission's pleading requirements set forth in this part, and
fails to set forth an arguable basis for further proceedings;
(i) Refer to the Atomic Safety and Licensing Board Panel or an
Administrative Judge, as appropriate requests for hearing not falling
under Sec. 2.104, where the requestor is entitled to further
proceedings; and
(j) Take action on minor procedural matters.

Sec. 2.347 Ex parte communications.

In any proceeding under this subpart--
(a) Interested persons outside the agency may not make or knowingly
cause to be made to any Commission adjudicatory employee, any ex parte
communication relevant to the merits of the proceeding.
(b) Commission adjudicatory employees may not request or entertain
from any interested person outside the agency or make or knowingly
cause to be made to any interested person outside the agency, any ex
parte communication relevant to the merits of the proceeding.
(c) Any Commission adjudicatory employee who receives, makes, or
knowingly causes to be made a communication prohibited by this section
shall ensure that it, and any responses to the communication, are
promptly served on the parties and placed in the public record of the
proceeding. In the case of oral communications, a written summary must
be served and placed in the public record of the proceeding.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the
Commission or other adjudicatory employee presiding in a proceeding
may, to the extent consistent with the interests of justice and the
policy of the underlying statutes, require the party to show cause why
its claim or interest in the proceeding should not be dismissed,
denied, disregarded, or otherwise adversely affected on account of the
violation.
(e) (1) The prohibitions of this section apply--
(i) When a notice of hearing or other comparable order is issued in
accordance with Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.204,
2.205(e), or 2.312; or
(ii) Whenever the interested person or Commission adjudicatory
employee responsible for the communication has knowledge that a notice
of hearing or other comparable order will be issued in accordance with
Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.
(2) The prohibitions of this section cease to apply to ex parte
communications relevant to the merits of a full or partial initial
decision when, in accordance with Sec. 2.341, the time has expired for
Commission review of the decision.
(f) The prohibitions in this section do not apply to--
(1) Requests for and the provision of status reports;
(2) Communications specifically permitted by statute or regulation;
(3) Communications made to or by Commission adjudicatory employees
in the Office of the General Counsel regarding matters pending before a
court or another agency; and
(4) Communications regarding generic issues involving public health
and safety or other statutory responsibilities of the agency (e.g.,
rulemakings, congressional hearings on legislation, budgetary planning)
not associated with the resolution of any proceeding under this subpart
pending before the NRC.

Sec. 2.348 Separation of functions.

(a) In any proceeding under this subpart, any NRC officer or
employee engaged in the performance of any investigative or litigating
function in that proceeding or in a factually related proceeding may
not participate in or advise a Commission adjudicatory employee about
the initial or final decision on any disputed issue in that proceeding,
except--
(1) As witness or counsel in the proceeding;
(2) Through a written communication served on all parties and made
on-the-record of the proceeding; or
(3) Through an oral communication made both with reasonable prior
notice to all parties and with reasonable opportunity for all parties
to respond.
(b) The prohibition in paragraph (a) of this section does not apply
to--
(1) Communications to or from any Commission adjudicatory employee
regarding--
(i) The status of a proceeding;
(ii) Matters for which the communications are specifically
permitted by statute or regulation;
(iii) NRC participation in matters pending before a court or
another agency; or
(iv) Generic issues involving public health and safety or other
statutory responsibilities of the NRC (e.g., rulemakings, congressional
hearings on legislation, budgetary planning) not associated with the
resolution of any proceeding under this subpart pending before the NRC.
(2) Communications to or from Commissioners, members of their
personal staffs, Commission adjudicatory employees in the Office of the
General Counsel, and the Secretary and employees of the Office of the
Secretary, regarding--
(i) Initiation or direction of an investigation or initiation of an
enforcement proceeding;
(ii) Supervision of NRC staff to ensure compliance with the general
policies and procedures of the agency;
(iii) NRC staff priorities and schedules or the allocation of
agency resources; or
(iv) General regulatory, scientific, or engineering principles that
are useful for an understanding of the issues in a proceeding and are
not contested in the proceeding.
(3) None of the communications permitted by paragraph (b)(2) (i)
through (iii) of this section is to be associated by the Commission
adjudicatory employee or the NRC officer or employee performing
investigative or litigating functions with the resolution of any
proceeding under this subpart pending before the NRC.
(c) Any Commission adjudicatory employee who receives a
communication prohibited under paragraph (a) of this section shall
ensure that it, and any responses to the communication, are placed in
the public record of the proceeding and served on the parties. In the
case of oral communications, a written summary must be served and
placed in the public record of the proceeding.
(d)(1) The prohibitions in this section apply--
(i) When a notice of hearing or other comparable order is issued in
accordance with Sec. Sec. 2.104(a), 2.105(e)(2), 2.202(c), 2.204,
2.205(e), or 2.312; or
(ii) Whenever an NRC officer or employee who is or has reasonable
cause to believe he or she will be engaged in the performance of an
investigative or litigating function or a

[[Page 2254]]

Commission adjudicatory employee has knowledge that a notice of hearing
or other comparable order will be issued in accordance with Sec. Sec.
2.104(a), 2.105(e)(2), 2.202(c), 2.204, 2.205(e), or 2.312.
(2) The prohibitions of this section cease to apply to the disputed
issues pertinent to a full or partial initial decision when the time
has expired for Commission review of the decision in accordance with
Sec. 2.341.
(e) Communications to, from, and between Commission adjudicatory
employees not prohibited by this section may not serve as a conduit for
a communication that otherwise would be prohibited by this section or
for an ex parte communication that otherwise would be prohibited by
Sec. 2.347.
(f) If an initial or final decision is stated to rest in whole or
in part on fact or opinion obtained as a result of a communication
authorized by this section, the substance of the communication must be
specified in the record of the proceeding and every party must be
afforded an opportunity to controvert the fact or opinion. If the
parties have not had an opportunity to controvert the fact or opinion
before the decision is filed, a party may controvert the fact or
opinion by filing a petition for review of an initial decision, or a
petition for reconsideration of a final decision that clearly and
concisely sets forth the information or argument relied on to show the
contrary. If appropriate, a party may be afforded the opportunity for
cross-examination or to present rebuttal evidence.

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

(a) Subject to the provisions of paragraphs (b), (d), (e), and (f)
of this section, final NRC records and documents,\1\ including but not
limited to correspondence to and from the NRC regarding the issuance,
denial, amendment, transfer, renewal, modification, suspension,
revocation, or violation of a license, permit, or order, or regarding a
rulemaking proceeding subject to this part shall not, in the absence of
an NRC determination of a compelling reason for nondisclosure after a
balancing of the interests of the person or agency urging nondisclosure
and the public interest in disclosure, be exempt from disclosure and
will be made available for inspection and copying at the NRC Web site,
http://www.nrc.gov, and/or at the NRC Public Document Room, except for

matters that are:
---------------------------------------------------------------------------

\1\Such records and documents do not include handwritten notes
and drafts.
---------------------------------------------------------------------------

(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy; and
(ii) Are in fact properly classified under that Executive order;
(2) Related solely to the internal personnel rules and practices of
the Commission;
(3) Specifically exempted from disclosure by statute (other than 5
U.S.C. 552(b)), but only if that statute requires that the matters be
withheld from the public in such a manner as to leave no discretion on
the issue, or establishes particular criteria for withholding or refers
to particular types or matters to be withheld.
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the Commission;
(6) Personnel and medical files and similar files, the disclosure
of which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority, or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(b) The procedures in this section must be followed by anyone
submitting a document to the NRC who seeks to have the document, or a
portion of it, withheld from public disclosure because it contains
trade secrets, privileged, or confidential commercial or financial
information.
(1) The submitter shall request withholding at the time the
document is submitted and shall comply with the document marking and
affidavit requirements set forth in this paragraph. The NRC has no
obligation to review documents not so marked to determine whether they
contain information eligible for withholding under paragraph (a) of
this section. Any documents not so marked may be made available to the
public at the NRC Web site, http://www.nrc.gov or at the NRC Public

Document Room.
(i) The submitter shall ensure that the document containing
information sought to be withheld is marked as follows:
(A) The top of the first page of the document and the top of each
page containing such information must be marked with language
substantially similar to: ``confidential information submitted under 10
CFR 2.390''; ``withhold from public disclosure under 10 CFR 2.390''; or
``proprietary'' to indicate it contains information the submitter seeks
to have withheld.
(B) Each document, or page, as appropriate, containing information
sought to be withheld from public disclosure must indicate, adjacent to
the information, or at the top if the entire page is affected, the
basis (i.e., trade secret, personal privacy, etc.) for proposing that
the information be withheld from public disclosure under paragraph (a)
of this section.
(ii) The Commission may waive the affidavit requirements on
request, or on its own initiative, in circumstances the Commission, in
its discretion, deems appropriate. Otherwise, except for personal
privacy information, which is not subject to the affidavit requirement,
the request for withholding must be accompanied by an affidavit that--
(A) Identifies the document or part sought to be withheld;
(B) Identifies the official position of the person making the
affidavit;
(C) Declares the basis for proposing the information be withheld,
encompassing considerations set forth in Sec. 2.390(a);

[[Page 2255]]

(D) Includes a specific statement of the harm that would result if
the information sought to be withheld is disclosed to the public; and
(E) Indicates the location(s) in the document of all information
sought to be withheld.
(iii) In addition, an affidavit accompanying a withholding request
based on paragraph (a)(4) of this section must contain a full statement
of the reason for claiming the information should be withheld from
public disclosure. Such statement shall address with specificity the
considerations listed in paragraph (b)(4) of this section. In the case
of an affidavit submitted by a company, the affidavit shall be executed
by an officer or upper-level management official who has been
specifically delegated the function of reviewing the information sought
to be withheld and authorized to apply for its withholding on behalf of
the company. The affidavit shall be executed by the owner of the
information, even though the information sought to be withheld is
submitted to the Commission by another person. The application and
affidavit shall be submitted at the time of filing the information
sought to be withheld. The information sought to be withheld shall be
incorporated, as far as possible, into a separate paper. The affiant
must designate with appropriate markings information submitted in the
affidavit as a trade secret, or confidential or privileged commercial
or financial information within the meaning of Sec. 9.17(a)(4) of this
chapter, and such information shall be subject to disclosure only in
accordance with the provisions of Sec. 9.19 of this chapter.
(2) A person who submits commercial or financial information
believed to be privileged or confidential or a trade secret shall be on
notice that it is the policy of the Commission to achieve an effective
balance between legitimate concerns for protection of competitive
positions and the right of the public to be fully apprised as to the
basis for and effects of licensing or rulemaking actions, and that it
is within the discretion of the Commission to withhold such information
from public disclosure.
(3) The Commission shall determine whether information sought to be
withheld from public disclosure under this paragraph:
(i) Is a trade secret or confidential or privileged commercial or
financial information; and (ii) If so, should be withheld from public
disclosure.
(4) In making the determination required by paragraph (b)(3)(i) of
this section, the Commission will consider:
(i) Whether the information has been held in confidence by its
owner;
(ii) Whether the information is of a type customarily held in
confidence by its owner and, except for voluntarily submitted
information, whether there is a rational basis therefor;
(iii) Whether the information was transmitted to and received by
the Commission in confidence;
(iv) Whether the information is available in public sources;
(v) Whether public disclosure of the information sought to be
withheld is likely to cause substantial harm to the competitive
position of the owner of the information, taking into account the value
of the information to the owner; the amount of effort or money, if any,
expended by the owner in developing the information; and the ease or
difficulty with which the information could be properly acquired or
duplicated by others.
(5) If the Commission determines, under paragraph (b)(4) of this
section, that the record or document contains trade secrets or
privileged or confidential commercial or financial information, the
Commission will then determine whether the right of the public to be
fully apprised as to the bases for and effects of the proposed action
outweighs the demonstrated concern for protection of a competitive
position, and whether the information should be withheld from public
disclosure under this paragraph. If the record or document for which
withholding is sought is deemed by the Commission to be irrelevant or
unnecessary to the performance of its functions, it will be returned to
the applicant.
(6) Withholding from public inspection does not affect the right,
if any, of persons properly and directly concerned to inspect the
document. Either before a decision of the Commission on the matter of
whether the information should be made publicly available or after a
decision has been made that the information should be withheld from
public disclosure, the Commission may require information claimed to be
a trade secret or privileged or confidential commercial or financial
information to be subject to inspection under a protective agreement by
contractor personnel or government officials other than NRC officials,
by the presiding officer in a proceeding, and under protective order by
the parties to a proceeding. In camera sessions of hearings may be held
when the information sought to be withheld is produced or offered in
evidence. If the Commission subsequently determines that the
information should be disclosed, the information and the transcript of
such in camera session will be made publicly available.
(c) The Commission either may grant or deny a request for
withholding under this section.
(1) If the request is granted, the Commission will notify the
submitter of its determination to withhold the information from public
disclosure.
(2) If the Commission denies a request for withholding under this
section, it will provide the submitter with a statement of reasons for
that determination. This decision will specify the date, which will be
a reasonable time thereafter, when the document will be available at
the NRC Web site, http://www.nrc.gov. The document will not be returned

to the submitter.
(3) Whenever a submitter desires to withdraw a document from
Commission consideration, it may request return of the document, and
the document will be returned unless the information--
(i) Forms part of the basis of an official agency decision,
including but not limited to, a rulemaking proceeding or licensing
activity;
(ii) Is contained in a document that was made available to or
prepared for an NRC advisory committee;
(iii) Was revealed, or relied upon, in an open Commission meeting
held in accordance with 10 CFR part 9, subpart C;
(iv) Has been requested in a Freedom of Information Act request; or
(v) Has been obtained during the course of an investigation
conducted by the NRC Office of Investigations.
(d) The following information is considered commercial or financial
information within the meaning of Sec. 9.17(a)(4) of this chapter and
is subject to disclosure only in accordance with the provisions of
Sec. 9.19 of this chapter.
(1) Correspondence and reports to or from the NRC which contain
information or records concerning a licensee's or applicant's physical
protection, classified matter protection, or material control and
accounting program for special nuclear material not otherwise
designated as Safeguards Information or classified as National Security
Information or Restricted Data.
(2) Information submitted in confidence to the Commission by a
foreign source.
(e) Submitting information to NRC for consideration in connection
with NRC licensing or regulatory activities shall be deemed to
constitute authority for the NRC to reproduce and distribute sufficient
copies to carry out the Commission's official responsibilities.

[[Page 2256]]

(f) The presiding officer, if any, or the Commission may, with
reference to the NRC records and documents made available pursuant to
this section, issue orders consistent with the provisions of this
section and Sec. 2.705(c).

0
19. In Sec. 2.402, paragraph (b) is revised to read as follows:

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

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

0
20. Section 2.405 is revised to read as follows:

Sec. 2.405 Initial decisions in consolidated hearings.

At the conclusion of any hearing held under this subpart, the
presiding officer will render a partial initial decision that may be
appealed under Sec. 2.341. No construction permit or full power
operating license will be issued until an initial decision has been
issued on all phases of the hearing and all issues under the Act and
the National Environmental Policy Act of 1969 appropriate to the
proceeding have been resolved.

0
21. In Sec. 2.604, paragraphs (b) and (c) are revised to read as
follows:

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

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

0
22. In Sec. 2.606, paragraph (a) is revised to read as follows:

Sec. 2.606 Partial decisions on site suitability issues.

(a) The provisions of Sec. Sec. 2.331, 2.339, 2.340(b), 2.343,
2.712, and 2.713 shall apply to any partial initial decision rendered
in accordance with this subpart. Section 2.340(c) shall not apply to
any partial initial decision rendered in accordance with this subpart.
A limited work authorization may not be issued under 10 CFR 50.10(e)
and no construction permit may be issued without completion of the full
review required by section 102(2) of the National Environmental Policy
Act of 1969, as amended, and subpart A of part 51 of this chapter. The
authority of the Commission to review such a partial initial decision
sua sponte, or to raise sua sponte an issue that has not been raised by
the parties, will be exercised within the same time period as in the
case of a full decision relating to the issuance of a construction
permit.
* * * * *

0
23. Subpart G is revised to read as follows:
Subpart G--Rules for Formal Adjudications
Sec.
2.700 Scope of subpart G.
2.701 Exceptions.
2.702 Subpoenas.
2.703 Examination by experts.
2.704 Discovery--required disclosures.
2.705 Discovery--additional methods.
2.706 Depositions upon oral examination and written interrogatories;
interrogatories to parties.
2.707 Production of documents and things; entry upon land for
inspection and other purposes.
2.708 Admissions.
2.709 Discovery against NRC staff.
2.710 Motions for summary disposition.
2.711 Evidence.
2.712 Proposed findings and conclusions.
2.713 Initial decision and its effect.
Subpart G--Rules for Formal Adjudications

Sec. 2.700 Scope of subpart G.

The provisions of this subpart apply to and supplement the
provisions set forth in subpart C of this part with respect to
enforcement proceedings initiated under subpart B of this part unless
otherwise agreed to by the parties, proceedings conducted with respect
to the initial licensing of a uranium enrichment facility, 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 necessitates
resolution of: 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 issues of motive or intent of the party
or eyewitness material to the resolution of the contested matter,
proceedings for initial applications for construction authorization for
high-level radioactive waste repository noticed under Sec. Sec.
2.101(f)(8) or 2.105(a)(5), proceedings for initial applications for a
license to receive and possess high-level radioactive waste at a
geologic repository operations area, and any other proceeding as
ordered by the Commission. If there is any conflict between the
provisions of this subpart and those set forth in subpart C of this
part, the provisions of this subpart control.

Sec. 2.701 Exceptions.

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

[[Page 2257]]

Sec. 2.702 Subpoenas.

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

Sec. 2.703 Examination by experts.

(a) A party may request the presiding officer to permit a qualified
individual who has scientific or technical training or experience to
participate on behalf of that party in the examination and cross-
examination of expert witnesses. The presiding officer may permit the
individual to participate on behalf of the party in the examination and
cross-examination of expert witnesses, upon finding:
(1) That cross-examination by that individual would serve the
purpose of furthering the conduct of the proceeding;
(2) That the individual is qualified by scientific or technical
training or experience to contribute to the development of an adequate
decisional record in the proceeding by the conduct of such examination
or cross-examination;
(3) That the individual has read any written testimony on which he
intends to examine or cross-examine and any documents to be used or
referred to in the course of the examination or cross-examination; and
(4) That the individual has prepared himself to conduct a
meaningful and expeditious examination or cross-examination, and has
submitted a cross-examination plan in accordance with Sec. 2.711(c).
(b) Examination or cross-examination conducted under this section
must be limited to areas within the expertise of the individual
conducting the examination or cross-examination. The party on behalf of
whom this examination or cross-examination is conducted and his or her
attorney is responsible for the conduct of examination or cross-
examination by such individuals.

Sec. 2.704 Discovery--required disclosures.

(a) Initial disclosures. Except to the extent otherwise stipulated
or directed by order of the presiding officer or the Commission, a
party other than the NRC staff shall, without awaiting a discovery
request, provide to other parties:
(1) The name and, if known, the address and telephone number of
each individual likely to have discoverable information relevant to
disputed issues alleged with particularity in the pleadings,
identifying the subjects of the information; and
(2) A copy of, or a description by category and location of, all
documents, data compilations, and tangible things in the possession,
custody, or control of the party that are relevant to disputed issues
alleged with particularity in the pleadings. When any document, data
compilation, or other tangible thing that must be disclosed is publicly
available from another source, such as at the NRC Web site, 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;
(3) Unless otherwise stipulated or directed by the presiding
officer, these disclosures must be made within forty-five (45) days
after the issuance of a prehearing conference order following the
initial prehearing conference specified in Sec. 2.329. A party shall
make its initial disclosures based on the information then reasonably
available to it. A party is not excused from making its disclosures
because it has not fully completed its investigation of the case,
because it challenges the sufficiency of another party's disclosures,
or because another party has not made its disclosures.
(b) Disclosure of expert testimony. (1) In addition to the
disclosures required by paragraph (a) of this section, a party other
than the NRC staff shall disclose to other parties the identity of any
person who may be used at trial to present evidence under Sec. 2.711.
(2) Except in proceedings with pre-filed written testimony, or as
otherwise stipulated or directed by the presiding officer, this
disclosure must be accompanied by a written report prepared and signed
by the witness, containing: A complete statement of all opinions to be
expressed and the basis and reasons therefor; the data or other
information considered by the witness in forming the opinions; any
exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of all publications
authored by the witness within the preceding ten years; and a listing
of any other cases in which the witness has testified as an expert at
trial or by deposition within the preceding four (4) years.
(3) These disclosures must be made at the times and in the sequence
directed by the presiding officer. In the absence

[[Page 2258]]

of other directions from the presiding officer, or stipulation by the
parties, the disclosures must be made at least ninety (90) days before
the hearing commencement date or the date the matter is to be presented
for hearing. If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another party under
paragraph (b)(2) of this section, the disclosures must be made within
thirty (30) days after the disclosure made by the other party. The
parties shall supplement these disclosures when required under
paragraph (e) of this section.
(c) Pretrial disclosures. (1) In addition to the disclosures
required in the preceding paragraphs, a party other than the NRC staff
shall provide to other parties the following information regarding the
evidence that it may present at trial other than solely for impeachment
purposes:
(i) The name and, if not previously provided, the address and
telephone number of each witness, separately identifying those whom the
party expects to present and those whom the party may call if the need
arises;
(ii) The designation of those witnesses whose testimony is expected
to be presented by means of a deposition and, when available, a
transcript of the pertinent portions of the deposition testimony; and
(iii) An appropriate identification of each document or other
exhibit, including summaries of other evidence, separately identifying
those which the party expects to offer and those which the party may
offer if the need arises.
(2) Unless otherwise directed by the presiding officer or the
Commission, these disclosures must be made at least thirty (30) days
before commencement of the hearing at which the issue is to be
presented.
(3) A party may object to the admissibility of documents identified
under paragraph (c) of this section. A list of those objections must be
served and filed within fourteen (14) days after service of the
disclosures required by paragraphs (c)(1) and (2) of this section,
unless a different time is specified by the presiding officer or the
Commission. Objections not so disclosed, other than objections as to a
document's admissibility under Sec. 2.711(e), are waived unless
excused by the presiding officer or Commission for good cause shown.
(d) Form of disclosures; filing. Unless otherwise directed by order
of the presiding officer or the Commission, all disclosures under
paragraphs (a) through (c) of this section must be made in writing,
signed, served, and promptly filed with the presiding officer or the
Commission.
(e) Supplementation of responses. A party who has made a disclosure
under this section is under a duty to supplement or correct the
disclosure to include information thereafter acquired if ordered by the
presiding officer or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals
its disclosures under paragraph (a) of this section within a reasonable
time after a party learns that in some material respect the information
disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the other
parties during the discovery process or in writing.
(2) With respect to testimony of an expert from whom a report is
required under paragraph (b) of this section, the duty extends both to
information contained in the report and to information provided through
a deposition of the expert, and any additions or other changes to this
information must be disclosed by the time the party's disclosures under
Sec. 2.704(c) are due.

Sec. 2.705 Discovery--additional methods.

(a) Discovery methods. Parties may obtain discovery by one or more
of the following methods: depositions upon oral examination or written
interrogatories (Sec. 2.706); interrogatories to parties (Sec.
2.706); production of documents or things or permission to enter upon
land or other property, for inspection and other purposes (Sec.
2.707); and requests for admission (Sec. 2.708).
(b) Scope of discovery. Unless otherwise limited by order of the
presiding officer in accordance with this section, the scope of
discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter involved in the
proceeding, whether it relates to the claim or defense of any other
party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any
discoverable matter. When any book, document, or other tangible thing
sought is reasonably available from another source, such as at the NRC
Web site, http://www.nrc.gov, and/or the NRC Public Document Room,

sufficient response to an interrogatory on materials would be the
location, the title and a page reference to the relevant book,
document, or tangible thing. In a proceeding on an application for a
construction permit or an operating license for a production or
utilization facility, discovery begins only after the prehearing
conference and relates only to those matters in controversy which have
been identified by the Commission or the presiding officer in the
prehearing order entered at the conclusion of that prehearing
conference. In such a proceeding, discovery may not take place after
the beginning of the prehearing conference held under Sec. 2.329
except upon leave of the presiding officer upon good cause shown. It is
not a ground for objection that the information sought will be
inadmissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(2) Limitations. Upon his or her own initiative after reasonable
notice or in response to a motion filed under paragraph (c) of this
section, the presiding officer may alter the limits in these rules on
the number of depositions and interrogatories, and may also limit the
length of depositions under Sec. 2.706 and the number of requests
under Sec. Sec. 2.707 and 2.708. The presiding officer shall limit the
frequency or extent of use of the discovery methods otherwise permitted
under these rules if he or she determines that:
(i) The discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(ii) The party seeking discovery has had ample opportunity by
discovery in the proceeding to obtain the information sought; or
(iii) The burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the proceeding, the
parties' resources, the importance of the issue in the proceeding, and
the importance of the proposed discovery in resolving the issues.
(3) Trial preparation materials. A party may obtain discovery of
documents and tangible things otherwise discoverable under paragraph
(b)(1) of this section and prepared in anticipation of or for the
hearing by or for another party's representative (including his
attorney, consultant, surety, indemnitor, insurer, or agent) only upon
a showing that the party seeking discovery has substantial need of the
materials in the preparation of this case and that he is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means. In ordering discovery of such materials when the required
showing

[[Page 2259]]

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

[[Page 2260]]

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

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

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

[[Page 2261]]

objections by the attorney making them. The party upon whom the
interrogatories were served shall serve a copy of the answers and
objections upon all parties to the proceeding within fourteen (14) days
after service of the interrogatories, or within such shorter or longer
period as the presiding officer may allow. Answers may be used in the
same manner as depositions (see Sec. 2.706(a)(7)).

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

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

Sec. 2.708 Admissions.

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

Sec. 2.709 Discovery against NRC staff.

(a)(1) In a proceeding in which the NRC staff is a party, the NRC
staff will make available one or more witnesses, designated by the
Executive Director for Operations or a delegee of the Executive
Director for Operations, for oral examination at the hearing or on
deposition regarding any matter, not privileged, that is relevant to
the issues in the proceeding. The attendance and testimony of the
Commissioners and named NRC personnel at a hearing or on deposition may
not be required by the presiding officer, by subpoena or otherwise.
However, the presiding officer may, upon a showing of exceptional
circumstances, such as a case in which a particular named NRC employee
has direct personal knowledge of a material fact not known to the
witnesses made available by the Executive Director for Operations or a
delegee of the Executive Director for Operations, require the
attendance and testimony of named NRC personnel.
(2) A party may file with the presiding officer written
interrogatories to be answered by NRC personnel with knowledge of the
facts, as designated by the Executive Director for Operations, or a
delegee of the Executive Director for Operations. Upon a finding by the
presiding officer that answers to the interrogatories are necessary to
a proper decision in the proceeding and that answers to the
interrogatories are not reasonably obtainable from any other source,
the presiding officer may require that the NRC staff answer the
interrogatories.
(3) A deposition of a particular named NRC employee or answer to
interrogatories by NRC personnel under paragraphs (a)(1) and (2) of
this section may not be required before the matters in controversy in
the proceeding have been identified by order of the Commission or the
presiding officer, or after the beginning of the prehearing conference
held in accordance with Sec. 2.329, except upon leave of the presiding
officer for good cause shown.
(4) The provisions of Sec. 2.704(c) and (e) apply to
interrogatories served under this paragraph.
(5) Records or documents in the custody of the Commissioners and
NRC personnel are available for inspection and copying or photographing
under paragraph (b) of this section and Sec. 2.390.
(b) A request for the production of an NRC record or document not
available under Sec. 2.390 by a party to an initial licensing
proceeding may be served on the Executive Director for Operations or a
delegee of the Executive Director for Operations, without leave of the
Commission or the presiding officer. The request must identify the
records or documents requested, either by individual item or by
category, describe each item or category with reasonable particularity,
and state why that record or document is relevant to the proceeding.
(c) If the Executive Director for Operations, or a delegee of the
Executive Director for Operations, objects to producing a requested
record or document on the ground that it is not relevant or it is
exempted from disclosure under Sec. 2.390 and the disclosure is not
necessary to a proper decision in the proceeding or the document or the
information therein is

[[Page 2262]]

reasonably obtainable from another source, the Executive Director for
Operations, or a delegee of the Executive Director for Operations,
shall advise the requesting party.
(d) If the Executive Director for Operations, or a delegee of the
Executive Director for Operations, objects to producing a record or
document, the requesting party may apply to the presiding officer, in
writing, to compel production of that record or document. The
application must set forth the relevancy of the record or document to
the issues in the proceeding. The application will be processed as a
motion in accordance with Sec. 2.323 (a) through (d). The record or
document covered by the application must be produced for the in camera
inspection of the presiding officer, exclusively, if requested by the
presiding officer and only to the extent necessary to determine:
(1) The relevancy of that record or document;
(2) Whether the document is exempt from disclosure under Sec.
2.390;
(3) Whether the disclosure is necessary to a proper decision in the
proceeding; and
(4) Whether the document or the information therein is reasonably
obtainable from another source.
(e) Upon a determination by the presiding officer that the
requesting party has demonstrated the relevancy of the record or
document and that its production is not exempt from disclosure under
Sec. 2.390 or that, if exempt, its disclosure is necessary to a proper
decision in the proceeding, and the document or the information therein
is not reasonably obtainable from another source, the presiding officer
shall order the Executive Director for Operations, or a delegee of the
Executive Director for Operations, to produce the document.
(f) In the case of requested documents and records (including
Safeguards Information referred to in sections 147 and 181 of the
Atomic Energy Act, as amended) exempt from disclosure under Sec.
2.390, but whose disclosure is found by the presiding officer to be
necessary to a proper decision in the proceeding, any order to the
Executive Director for Operations or a delegee of the Executive
Director for Operations, to produce the document or records (or any
other order issued ordering production of the document or records) may
contain any protective terms and conditions (including affidavits of
non-disclosure) as may be necessary and appropriate to limit the
disclosure to parties in the proceeding, to interested States and other
governmental entities participating under Sec. 2.315(c), and to their
qualified witnesses and counsel. When Safeguards Information protected
from disclosure under section 147 of the Atomic Energy Act, as amended,
is received and possessed by a party other than the Commission staff,
it must also be protected according to the requirements of Sec. 73.21
of this chapter. The presiding officer may also prescribe additional
procedures to effectively safeguard and prevent disclosure of
Safeguards Information to unauthorized persons with minimum impairment
of the procedural rights which would be available if Safeguards
Information were not involved. In addition to any other sanction that
may be imposed by the presiding officer for violation of an order
issued pursuant to this paragraph, violation of an order pertaining to
the disclosure of Safeguards Information protected from disclosure
under section 147 of the Atomic Energy Act, as amended, may be subject
to a civil penalty imposed under Sec. 2.205. For the purpose of
imposing the criminal penalties contained in Section 223 of the Atomic
Energy Act, as amended, any order issued pursuant to this paragraph
with respect to Safeguards Information is considered to be an order
issued under Section 161.b of the Atomic Energy Act.
(g) A ruling by the presiding officer or the Commission for the
production of a record or document will specify the time, place, and
manner of production.
(h) A request under this section may not be made or entertained
before the matters in controversy have been identified by the
Commission or the presiding officer, or after the beginning of the
prehearing conference held under Sec. 2.329 except upon leave of the
presiding officer for good cause shown.
(i) The provisions of Sec. 2.705 (c) and (e) apply to production
of NRC records and documents under this section.

Sec. 2.710 Motions for summary disposition.

(a) Any party to a proceeding may move, with or without supporting
affidavits, for a decision by the presiding officer in that party's
favor as to all or any part of the matters involved in the proceeding.
Summary disposition motions must be filed no later than twenty (20)
days after the close of discovery. The moving party shall attach to the
motion a separate, short, and concise statement of the material facts
as to which the moving party contends that there is no genuine issue to
be heard. Any other party may serve an answer supporting or opposing
the motion, with or without affidavits, within twenty (20) days after
service of the motion. The party shall attach to any answer opposing
the motion a separate, short, and concise statement of the material
facts as to which it is contended there exists a genuine issue to be
heard. All material facts set forth in the statement required to be
served by the moving party will be considered to be admitted unless
controverted by the statement required to be served by the opposing
party. The opposing party may, within ten (10) days after service,
respond in writing to new facts and arguments presented in any
statement filed in support of the motion. No further supporting
statements or responses thereto will be entertained.
(b) Affidavits must set forth the facts that would be admissible in
evidence, and must demonstrate affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. The
presiding officer may permit affidavits to be supplemented or opposed
by depositions, answers to interrogatories or further affidavits. When
a motion for summary decision is made and supported as provided in this
section, a party opposing the motion may not rest upon the mere
allegations or denials of his answer. The answer by affidavits or as
otherwise provided in this section must set forth specific facts
showing that there is a genuine issue of fact. If no answer is filed,
the decision sought, if appropriate, must be rendered.
(c) Should it appear from the affidavits of a party opposing the
motion that he or she cannot, for reasons stated, present by affidavit
facts essential to justify the party's opposition, the presiding
officer may refuse the application for summary decision, order a
continuance to permit affidavits to be obtained, or make an order as is
appropriate. A determination to that effect must be made a matter of
record.
(d)(1) The presiding officer need not consider a motion for summary
disposition unless its resolution will serve to expedite the proceeding
if the motion is granted. The presiding officer may dismiss summarily
or hold in abeyance untimely motions filed shortly before the hearing
commences or during the hearing if the other parties or the presiding
officer would be required to divert substantial resources from the
hearing in order to respond adequately to the motion and thereby extend
the proceeding.
(2) The presiding officer shall render the decision sought if the
filings in the proceeding, depositions, answers to interrogatories, and
admissions on file, together with the statements of the parties and the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a decision as a
matter of

[[Page 2263]]

law. However, in any proceeding involving a construction permit for a
production or utilization facility, the procedure described in this
section may be used only for the determination of specific subordinate
issues and may not be used to determine the ultimate issue as to
whether the permit shall be issued.
(e) The presiding officer shall 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, and the
bases therefore.

Sec. 2.711 Evidence.

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

Sec. 2.712 Proposed findings and conclusions.

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

Sec. 2.713 Initial decision and its effect.

(a) After hearing, the presiding officer will render an initial
decision which will constitute the final action of the Commission forty
(40) days after its date unless any party petitions for Commission
review in accordance with Sec. 2.341 or the Commission takes review
sua sponte.

[[Page 2264]]

(b) Where the public interest so requires, the Commission may
direct that the presiding officer certify the record to it without an
initial decision, and may:
(1) Prepare its own decision which will become final unless the
Commission grants a petition for reconsideration under Sec. 2.345; or
(2) Omit an initial decision on a finding that due and timely
execution of its functions imperatively and unavoidably so requires.
(c) An initial decision will be in writing and will be based on the
whole record and supported by reliable, probative, and substantial
evidence. The initial decision will include:
(1) Findings, conclusions, and rulings, with the reasons or basis
for them, on all material issues of fact, law, or discretion presented
on-the-record;
(2) All facts officially noticed and relied on in making the
decision;
(3) The appropriate ruling, order, or denial of relief with the
effective date;
(4) The time within which a petition for review of the decision may
be filed, the time within which answers in support of or in opposition
to a petition for review filed by another party may be filed and, in
the case of an initial decision which may become final in accordance
with paragraph (a) of this section, the date when it may become final.

0
24. Section 2.901 is revised to read as follows:

Sec. 2.901 Scope of subpart I.

This subpart applies, as applicable, to all proceedings under
subparts G, J, K, L, M, and N of this part.

0
25. In Sec. 2.902, paragraph (e) is revised to read as follows:

Sec. 2.902 Definitions.

* * * * *
(e) Party, in the case of proceedings subject to this subpart
includes a person admitted as a party under Sec. 2.309 or an
interested State admitted under Sec. 2.315(c).

0
26. Section 2.1000 is revised to read as follows:

Sec. 2.1000 Scope of subpart J.

The rules in this subpart, together with the rules in subparts C
and G of this part, govern the procedure for an application for
authorization to construct 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 for an application for a license to
receive and possess high level radioactive waste at a geologic
repository operations area. The procedures in this subpart take
precedence over those in 10 CFR part 2, subpart C, except for the
following provisions: Sec. Sec. 2.301; 2.303; 2.307; 2.309; 2.312;
2.313; 2.314; 2.315; 2.316; 2.317(a); 2.318; 2.319; 2.320; 2.321;
2.322; 2.323; 2.324; 2.325; 2.326; 2.327; 2.328; 2.330; 2.331; 2.333;
2.335; 2.338; 2.339; 2.342; 2.343; 2.344; 2.345; 2.346; 2.348; and
2.390. The procedures in this subpart take precedence over those in 10
CFR part 2, subpart G, except for the following provisions: Sec. Sec.
2.701, 2.702; 2.703; 2.708; 2.709; 2.710; 2.711; 2.712.

0
27. In Sec. 2.1001, the definitions of Documentary material,
Interested governmental participant, Licensing Support Network, Party,
and Pre-license application phase are revised to read as follows:

Sec. 2.1001 Definitions

* * * * *
Documentary material means:
(1) Any information upon which a party, potential party, or
interested governmental participant intends to rely and/or to cite in
support of its position in the proceeding for a construction
authorization for a high-level radioactive waste repository at a
geologic repository operations area pursuant to parts 60 or 63 of this
chapter, 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;
(2) Any information that is known to, and in the possession of, or
developed by the party that is relevant to, but does not support, that
information or that party's position; and
(3) All reports and studies, prepared by or on behalf of the
potential party, interested governmental participant, or party,
including all related ``circulated drafts,'' relevant to both the
license application and the issues set forth in the Topical Guidelines
in Regulatory Guide 3.69, regardless of whether they will be relied
upon and/or cited by a party. The scope of documentary material shall
be guided by the topical guidelines in the applicable NRC Regulatory
Guide.
* * * * *
Interested governmental participant means any person admitted under
Sec. 2.315(c) of this part to the 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, and an application for a license to receive and
possess high level radioactive waste at a geologic repository
operations area under parts 60 and 63 of this chapter.
Licensing Support Network means the combined system that makes
documentary material available electronically to parties, potential
parties, and interested governmental participants to a proceeding 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 under parts 60 and 63 of this
chapter.
* * * * *
Party for the purpose of this subpart means the DOE, the NRC staff,
the host State, any affected unit of local government as defined in
Section 2 of the Nuclear Waste Policy Act of 1982, as amended (42
U.S.C. 10101), any affected Indian Tribe as defined in section 2 of the
Nuclear Waste Policy Act of 1982, as amended (42 U.S.C. 10101), and a
person admitted under Sec. 2.309 to the proceeding on an application
for construction authorization for a high-level radioactive waste
repository at a geologic repository operations area under parts 60 or
63 of this chapter, and an application for a license to receive and
possess high level radioactive waste at a geologic repository
operations area under parts 60 and 63 of this chapter; provided that a
host State, affected unit of local government, or affected Indian Tribe
files a list of contentions in accordance with the provisions of Sec.
2.309.
* * * * *
Pre-license application phase means the time period before a
construction authorization for a high-level radioactive waste
repository at a geologic repository operations area under parts 60 or
63 of this chapter is docketed under Sec. 2.101(f)(3), and the time
period before a license application to receive and possess high-level
radioactive waste at a geologic repository operations area under parts
60 or 63 is docketed under Sec. 2.101(f)(3).
* * * * *
28. In Sec. 2.1003, the introductory text of paragraph (a) is
revised to read as follows:

Sec. 2.1003 Availability of material.

(a) Subject to the exclusions in Sec. 2.1005 and paragraphs (b)
and (c) of this section, DOE shall make available, no later than six
months in advance of submitting its application for either a
construction authorization for a HLW repository at a geologic
repository operations area under parts 60 or 63 of this chapter, or a
license to receive and possess high-level radioactive waste at a

[[Page 2265]]

geologic repository operations area under parts 60 or 63 of this
chapter, the NRC shall make available no later than thirty days after
the DOE certification of compliance under Sec. 2.1009(b), and each
other potential party, interested governmental participant or party
shall make available no later than ninety days after the DOE
certification of compliance under Sec. 2.1009(b):
* * * * *
29. In Sec. 2.1006, paragraph (a) is revised to read as follows:

Sec. 2.1006 Privilege.

(a) Subject to the requirements in Sec. 2.1003(a)(4), the
traditional discovery privileges recognized in NRC adjudicatory
proceedings and the exceptions from disclosure in Sec. 2.390 may be
asserted by potential parties, interested States, local governmental
bodies, Federally-recognized Indian Tribes, and parties. In addition to
Federal agencies, the deliberative process privilege may also be
asserted by States, local governmental bodies, and Federally-recognized
Indian Tribes.
* * * * *

0
30. In Sec. 2.1010, paragraph (e) is revised to read as follows:

Sec. 2.1010 Pre-license application presiding officer.

* * * * *
(e) The Pre-License Application presiding officer possesses all the
general powers specified in Sec. Sec. 2.319 and 2.321(c).
* * * * *

0
31. In Sec. 2.1012, paragraph (b) is revised to read as follows:

Sec. 2.1012 Compliance.

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

0
32. In Sec. 2.1013, paragraphs (a)(1), (a)(2), (b) and (c)(1) are
revised to read as follows:

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

(a)(1) As specified in Sec. 2.303, the Secretary of the Commission
will maintain the official docket of the proceeding on the application
for construction authorization for a high-level radioactive waste
repository at a geologic repository operations area under parts 60 or
63 of this chapter, and for applications 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.
(2) Commencing with the docketing in an electronic form of 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 pursuant to parts 60 or 63 of this chapter,
the Secretary of the Commission, upon determining that the application
can be properly accessed under the Commission's electronic docket
rules, will establish an electronic docket to contain the official
record materials of the high-level radioactive waste licensing
proceeding in searchable full text, or, for material that is not
suitable for entry in searchable full text, by header and image, as
appropriate.
(b) Absent good cause, all exhibits tendered during the hearing
must have been made available to the parties in electronic form before
the commencement of that portion of the hearing in which the exhibit
will be offered. The electronic docket will contain a list of all
exhibits, showing where in the transcript each was marked for
identification and where it was received into evidence or rejected. For
any hearing sessions recorded stenographically or by other means,
transcripts will be entered into the electronic docket on a daily basis
in order to afford next-day availability at the hearing. However, for
any hearing sessions recorded on videotape or other video medium, if a
copy of the video recording is made available to all parties on a daily
basis that affords next-day availability at the hearing, a transcript
of the session prepared from the video recording will be entered into
the electronic docket within twenty-four (24) hours of the time the
transcript is tendered to the electronic docket by the transcription
service.
(c)(1) All filings in the adjudicatory proceeding on an application
for either a construction authorization for a HLW repository at a
geologic repository operations area under parts 60 or 63 of this
chapter, or a license to receive and possess high-level radioactive
waste at a geologic repository operations area under parts 60 or 63 of
this chapter, shall be transmitted electronically by the submitter to
the presiding officer, parties, and the Secretary of the Commission,
according to established format requirements. Parties and interested
governmental participants will be required to use a password security
code for the electronic transmission of these documents.
* * * * *

Sec. 2.1014 [Removed]

0
33. Section 20.1014 is removed.

0
34. In Sec. 2.1015, paragraphs (b) and (d) are revised to read as
follows:

Sec. 2.1015 Appeals.

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

[[Page 2266]]

rulings not immediately appealable under paragraph (b) of this section.
* * * * *

Sec. 2.1016 [Removed]

0
35. Section 2.1016 is removed.

0
36. In Sec. 2.1018, paragraphs (a)(1)(v), (c), (f)(3), and (g) are
revised to read as follows:

Sec. 2.1018 Discovery.

(a)(1) * * *
(v) Requests for admissions pursuant to Sec. 2.708;
* * * * *
(c)(1) Upon motion by a party, potential party, interested
governmental participant, or the person from whom discovery is sought,
and for good cause shown, the presiding officer may make any order that
justice requires to protect a party, potential party, interested
governmental participant, or other person from annoyance,
embarrassment, oppression, or undue burden, delay, or expense,
including one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery may be had only on specified terms and
conditions, including a designation of the time or place;
(iii) That the discovery may be had only by a method of discovery
other than that selected by the party, potential party, or interested
governmental participant seeking discovery;
(iv) That certain matters not be inquired into, or that the scope
of discovery be limited to certain matters;
(v) That discovery be conducted with no one present except persons
designated by the presiding officer;
(vi) That, subject to the provisions of Sec. 2.390 of this part, a
trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
or
(vii) That studies and evaluations not be prepared.
(2) If the motion for a protective order is denied in whole or in
part, the presiding officer may, on such terms and conditions as are
just, order that any party, potential party, interested governmental
participant or other person provide or permit discovery.
* * * * *
(f) * * *
(3) An independent request for issuance of a subpoena may be
directed to a nonparty for production of documents. This section does
not apply to requests for the testimony of the NRC regulatory staff
under Sec. 2.709.
(g) The presiding officer, under Sec. 2.322, may appoint a
discovery master to resolve disputes between parties concerning
informal requests for information as provided in paragraphs (a)(1) and
(a)(2) of this section.

Sec. 2.1019 [Amended]

0
37. In Sec. 2.1019, paragraph (j) is removed.

0
38. In Sec. 2.1021, the introductory sentence of paragraph (a) is
revised to read as follows:

Sec. 2.1021 First prehearing conference.

(a) In any proceeding involving an application for a construction
authorization for a HLW 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 pursuant to parts 60 or 63 of this
chapter, the Commission or the presiding officer will direct the
parties, interested governmental participants and any petitioners for
intervention, or their counsel, to appear at a specified time and
place, within seventy days after the notice of hearing is published, or
such other time as the Commission or the presiding officer may deem
appropriate, for a conference to:
* * * * *

0
39. In Sec. 2.1022, the introductory text of paragraph (a), and
paragraph (a)(1) are revised to read as follows:

Sec. 2.1022 Second prehearing conference.

(a) The Commission or the presiding officer in a proceeding on
either an application for 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, shall
direct the parties, interested governmental participants, or their
counsel to appear at a specified time and place not later than thirty
days after the Safety Evaluation Report is issued by the NRC staff for
a conference to consider:
(1) Any amended contentions submitted, which must be reviewed under
the criteria in Sec. 2.309(c) of this part;
* * * * *

0
40. In Sec. 2.1023, paragraph (a) and (b)(2) are revised to read as
follows:

Sec. 2.1023 Immediate effectiveness.

(a) Pending review and final decision by the Commission, and
initial decision resolving all issues before the presiding officer in
favor of issuance or amendment of either an authorization to construct
a high-level radioactive waste repository at a geologic repository
operations area under parts 60 or 63 of this chapter, or a license to
receive and possess high-level radioactive waste at a geologic
repository operations area under parts 60 or 63 of this chapter will be
immediately effective upon issuance except:
(1) As provided in any order issued in accordance with Sec. 2.342
that stays the effectiveness of an initial decision; or
(2) As otherwise provided by the Commission in special
circumstances.
* * * * *
(b) * * *
(2) As provided in any order issued in accordance with Sec. 2.342
of this part that stays the effectiveness of an initial decision; or
* * * * *

0
41. In Sec. 2.1026, paragraph (b)(1) is revised to read as follows:

Sec. 2.1026 Schedule.

* * * * *
(b)(1) Pursuant to Sec. 2.307, the presiding officer may approve
extensions of no more than fifteen (15) days beyond any required time
set forth in this subpart for a filing by a party to the proceeding.
Except in the case of exceptional and unforseen circumstances, requests
for extensions of more than fifteen (15) days must be filed no later
than five (5) days in advance of the required time set forth in this
subpart for a filing by a party to the proceeding.
* * * * *

0
42. Section 2.1027 is revised to read as follows:

Sec. 2.1027 Sua sponte.

In any initial decision in a 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 Presiding
Officer, other than the Commission, shall make findings of fact and
conclusions of law on, and otherwise give consideration to, only those
matters put into controversy by the parties and determined to be
litigable issues in the proceeding.

0
43. Section 2.1103 is revised to read as follows:

Sec. 2.1103 Scope of subpart K.

The provisions of this subpart, together with subpart C and
applicable

[[Page 2267]]

provisions of subparts G and L of this part, govern all adjudicatory
proceedings on applications filed after January 7, 1983, for a license
or license amendment under part 50 of this chapter, to expand the spent
fuel storage capacity at the site of a civilian nuclear power plant,
through the use of high density fuel storage racks, fuel rod
compaction, the transshipment of spent nuclear fuel to another civilian
nuclear power reactor within the same utility system, the construction
of additional spent nuclear fuel pool capacity or dry storage capacity,
or by other means. This subpart also applies to proceedings on
applications for a license under part 72 of this chapter to store spent
nuclear fuel in an independent spent fuel storage installation located
at the site of a civilian nuclear power reactor. This subpart shall not
apply to the first application for a license or license amendment to
expand the spent fuel storage capacity at a particular site through the
use of a new technology not previously approved by the Commission for
use at any other nuclear power plant. This subpart shall not apply to
proceedings on applications for transfer of a license issued under part
72 of this chapter. Subpart M of this part applies to license transfer
proceedings.

0
44. In Sec. 2.1109, paragraphs (a)(1) and (c) are revised to read as
follows:

Sec. 2.1109 Requests for oral argument.

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

Sec. 2.1111 [Reserved]

0
45. Section 2.1111 is removed.

0
46. In Sec. 2.1113, paragraph (b) is redesignated as paragraph (c),
paragraph (a) is revised, and a new paragraph (b) is added to read as
follows:

Sec. 2.1113 Oral argument.

(a) Twenty-five (25) days prior to the date set for oral argument,
each party, including the NRC staff, shall submit to the presiding
officer a detailed written summary of all the facts, data, and
arguments which are known to the party at such time and on which the
party proposes to rely at the oral argument either to support or to
refute the existence of a genuine and substantial dispute of fact. Each
party shall also submit all supporting facts and data in the form of
sworn written testimony or other sworn written submission. Each party's
written summary and supporting information shall be simultaneously
served on all other parties to the proceeding.
(b) Ten (10) days prior to the date set for oral argument, each
party, including the NRC staff, may submit to the presiding officer a
reply limited to addressing whether the written summaries, facts, data,
and arguments filed under paragraph (a) of this section support or
refute the existence of a genuine and substantial dispute of fact. Each
party's reply shall be simultaneously served on all other parties to
the proceeding.
* * * * *

0
47. Section 2.1117 is revised to read as follows:

Sec. 2.1117 Burden of proof.

The applicant bears the ultimate burden of proof (risk of non-
persuasion) with respect to the contention in the proceeding. The
proponent of the request for an adjudicatory hearing bears the burden
of demonstrating under Sec. 2.1115(b) that an adjudicatory hearing
should be held.

0
48. A new Sec. 2.1119 is added to read as follows:

Sec. 2.1119 Applicability of other sections.

In proceedings subject to this part, the provisions of subparts A,
C, and L of this part are also applicable, except where inconsistent
with the provisions of this subpart.

0
49. Subpart L is revised to read as follows:
Subpart L--Informal Hearing Procedures for NRC Adjudications
Sec.
2.1200 Scope of subpart L.
2.1201 Definitions.
2.1202 Authority and role of NRC staff.
2.1203 Hearing file; prohibition on discovery.
2.1204 Motions and requests.
2.1205 Summary disposition.
2.1206 Informal hearings.
2.1207 Process and schedule for submissions and presentations in an
oral hearing.
2.1208 Process and schedule for a hearing consisting of written
presentations.
2.1209 Findings of fact and conclusions of law.
2.1210 Initial decision and its effect.
2.1211 Immediate effectiveness of initial decision directing
issuance or amendment of licenses under part 61 of this chapter.
2.1212 Petitions for Commission review of initial decisions.
2.1213 Application for a stay.

Subpart L--Informal Hearing Procedures for NRC Adjudications

Sec. 2.1200 Scope of subpart L.

The provisions of this subpart, together with subpart C of this
part, govern all adjudicatory proceedings conducted under the authority
of the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act, and 10 CFR part 2, except for proceedings on the licensing of the
construction and operation of a uranium enrichment facility,
proceedings on an initial application for construction authorization
for a high-level radioactive waste geologic 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 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.

Sec. 2.1201 Definitions.

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

Sec. 2.1202 Authority and role of NRC staff.

(a) During the pendency of any hearing under this subpart,
consistent with the NRC staff's findings in its own review of the
application or matter which is the subject of the hearing and as
authorized by law, the NRC staff is expected to issue its approval or
denial of the application promptly, or take other appropriate action on
the underlying regulatory matter for which a hearing was provided. When
the NRC staff takes its action, it shall notify the presiding officer
and the parties to the proceeding of its action. That notice must
include the NRC staff's position on the matters in controversy before
the presiding officer with respect to the staff

[[Page 2268]]

action. The NRC staff's action on the matter is effective upon issuance
by the staff, except in matters involving:
(1) An application to construct and/or operate a production or
utilization facility;
(2) An application for an amendment to a construction authorization
for a high-level radioactive waste repository at a geologic repository
operations area falling under either 10 CFR 60.32(c)(1) or 10 CFR part
63;
(3) An application for the construction and operation of an
independent spent fuel storage installation (ISFSI) located at a site
other than a reactor site or a monitored retrievable storage
installation (MRS) under 10 CFR part 72; and
(4) Production or utilization facility licensing actions that
involve significant hazards considerations as defined in 10 CFR 50.92.
(b)(1) The NRC staff is not required to be a party to a proceeding
under this subpart, except where:
(i) The proceeding involves an application denied by the NRC staff
or an enforcement action proposed by the NRC staff; or
(ii) The presiding officer determines that the resolution of any
issue in the proceeding would be aided materially by the NRC staff's
participation in the proceeding as a party and orders the staff to
participate as a party for the identified issue. In the event that the
presiding officer determines that the NRC staff's participation is
necessary, the presiding officer shall issue an order identifying the
issue(s) on which the staff is to participate as well as setting forth
the basis for the determination that staff participation will
materially aid in resolution of the issue(s).
(2) Within fifteen (15) days of the issuance of the order granting
requests for hearing/petitions to intervene and admitting contentions,
the NRC staff shall notify the presiding officer and the parties
whether it desires to participate as a party, and identify the
contentions on which it wishes to participate as a party. 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.
(3) Once the NRC staff chooses to participate as a party, it shall
have all the rights and responsibilities of a party with respect to the
admitted contention/matter in controversy on which the staff chooses to
participate.

Sec. 2.1203 Hearing file; prohibition on discovery.

(a)(1) Within thirty (30) days of the issuance of the order
granting requests for hearing/petitions to intervene and admitting
contentions, the NRC staff shall file in the docket, present to the
presiding officer, and make available to the parties to the proceeding
a hearing file.
(2) The hearing file must be made available to the parties either
by service of hard copies or by making the file available at the NRC
Web site, http://www.nrc.gov.

(3) The hearing file also must be made available for public
inspection and copying at the NRC Web site, http://www.nrc.gov, and/or

at the NRC Public Document Room.
(b) The hearing file consists of the application, if any, and any
amendment to the application, and, when available, any NRC
environmental impact statement or assessment and any NRC report related
to the proposed action, as well as any correspondence between the
applicant/licensee and the NRC that is relevant to the proposed action.
Hearing file documents already available at the NRC Web site and/or the
NRC Public Document Room when the hearing request/petition to intervene
is granted may be incorporated into the hearing file at those locations
by a reference indicating where at those locations the documents can be
found. The presiding officer shall rule upon any issue regarding the
appropriate materials for the hearing file.
(c) The NRC staff has a continuing duty to keep the hearing file up
to date with respect to the materials set forth in paragraph (b) of
this section and to provide those materials as required in paragraphs
(a) and (b) of this section.
(d) Except as otherwise permitted by subpart C of this part, a
party may not seek discovery from any other party or the NRC or its
personnel, whether by document production, deposition, interrogatories
or otherwise.

Sec. 2.1204 Motions and requests.

(a) General requirements. In proceedings under this subpart,
requirements for motions and requests and responses to them are as
specified in Sec. 2.323.
(b) Requests for cross-examination by the parties. (1) In any oral
hearing under this subpart, a party may file a motion with the
presiding officer to permit cross-examination by the parties on
particular admitted contentions or issues. The motion must be
accompanied by a cross-examination plan containing the following
information:
(i) A brief description of the issue or issues on which cross-
examination will be conducted;
(ii) The objective to be achieved by cross-examination; and
(iii) The proposed line of questions that may logically lead to
achieving the objective of the cross-examination.
(2) The cross-examination plan may be submitted only to the
presiding officer and must be kept by the presiding officer in
confidence until issuance of the initial decision on the issue being
litigated. The presiding officer shall then provide each cross-
examination plan to the Commission's Secretary for inclusion in the
official record of the proceeding.
(3) The presiding officer shall allow cross-examination by the
parties only if the presiding officer determines that cross-examination
by the parties is necessary to ensure the development of an adequate
record for decision.

Sec. 2.1205 Summary disposition.

(a) Unless the presiding officer or the Commission directs
otherwise, motions for summary disposition may be submitted to the
presiding officer by any party no later than forty-five (45) days
before the commencement of hearing. The motions must be in writing and
must include a written explanation of the basis of the motion, and
affidavits to support statements of fact. Motions for summary
disposition must be served on the parties and the Secretary at the same
time that they are submitted to the presiding officer.
(b) Any other party may serve an answer supporting or opposing the
motion within twenty (20) days after service of the motion.
(c) The presiding officer shall issue a determination on each
motion for summary disposition no later than fifteen (15) days before
the date scheduled for commencement of hearing. In ruling on motions
for summary disposition, the presiding officer shall apply the
standards for summary disposition set forth in subpart G of this part.

Sec. 2.1206 Informal hearings.

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

[[Page 2269]]

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

(a) Unless otherwise limited by this subpart or by the presiding
officer, participants in an oral hearing may submit and sponsor in the
hearings:
(1) Initial written statements of position and written testimony
with supporting affidavits on the admitted contentions. These materials
must be filed on the dates set by the presiding officer.
(2) Written responses and rebuttal testimony with supporting
affidavits directed to the initial statements and testimony of other
participants. These materials must be filed within twenty (20) days of
the service of the materials submitted under paragraph (a)(1) of this
section unless the presiding officer directs otherwise.
(3)(i) Proposed questions for the presiding officer to consider for
propounding to the persons sponsoring the testimony. Unless the
presiding officer directs otherwise, these questions must be received
by the presiding officer no later than twenty (20) days after the
service of the materials submitted under paragraph (a)(1) of this
section, unless that date is less than five (5) days before the
scheduled commencement of the oral hearing, in which case the questions
must be received by the presiding officer no later than five (5) days
before the scheduled commencement of the hearing. Proposed questions
need not be filed with any other party.
(ii) Proposed questions directed to rebuttal testimony for the
presiding officer to consider for propounding to persons sponsoring the
testimony. Unless the presiding officer directs otherwise, these
questions must be received by the presiding officer no later than seven
(7) days after the service of the rebuttal testimony submitted under
paragraph (a)(2) of this section, unless that date is less than five
(5) days before the scheduled commencement of the oral hearing, in
which case the questions must be received by the presiding officer no
later than five (5) days before the scheduled commencement of the
hearing. Proposed questions directed to rebuttal need not be filed with
any other party.
(iii) Questions submitted under paragraphs (a)(3)(i) and (ii) of
this section may be propounded at the discretion of the presiding
officer. All questions must be kept by the presiding officer in
confidence until they are either propounded by the presiding officer,
or until issuance of the initial decision on the issue being litigated.
The presiding officer shall then provide all proposed questions to the
Commission's Secretary for inclusion in the official record of the
proceeding.
(b) Oral hearing procedures. (1) The oral hearing must be
transcribed.
(2) Written testimony will be received into evidence in exhibit
form.
(3) Participants may designate and present their own witnesses to
the presiding officer.
(4) Testimony for the NRC staff will be presented only by persons
designated by the Executive Director for Operations or his delegee for
that purpose.
(5) The presiding officer may accept written testimony from a
person unable to appear at the hearing, and may request that person to
respond in writing to questions.
(6) Participants and witnesses will be questioned orally or in
writing and only by the presiding officer or the presiding officer's
designee (e.g., a Special Assistant appointed under Sec. 2.322). The
presiding officer will examine the participants and witnesses using
questions prepared by the presiding officer or the presiding officer's
designee, questions submitted by the participants at the discretion of
the presiding officer, or a combination of both. Questions may be
addressed to individuals or to panels of participants or witnesses. No
party may submit proposed questions to the presiding officer at the
hearing, except upon request by, and in the sole discretion of, the
presiding officer.

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

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

Sec. 2.1209 Findings of fact and conclusions of law.

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

Sec. 2.1210 Initial decision and its effect.

(a) Unless the Commission directs that the record be certified to
it in accordance with paragraph (b) of this section, the presiding
officer shall render an initial decision after completion of an
informal hearing under this subpart. That initial decision constitutes
the final action of the Commission on the contested matter forty (40)
days after the date of issuance, unless:
(1) Any party files a petition for Commission review in accordance
with Sec. 2.1212;
(2) The Commission, in its discretion, determines that the
presiding officer's initial decision is inconsistent with the staff's
action as described in the notice required by Sec. 2.1202(a) and that
the inconsistency warrants Commission review, in which case the
Commission will review the initial decision; or
(3) The Commission takes review of the decision sua sponte.
(b) The Commission may direct that the presiding officer certify
the record to it without an initial decision and prepare a final
decision if the Commission finds that due and timely execution of its
functions warrants certification.

[[Page 2270]]

(c) An initial decision must be in writing and must be based only
upon information in the record or facts officially noticed. The record
must include all information submitted in the proceeding with respect
to which all parties have been given reasonable prior notice and an
opportunity to comment as provided in Sec. Sec. 2.1207 or 2.1208. The
initial decision must include:
(1) Findings, conclusions, and rulings, with the reasons or basis
for them, on all material issues of fact or law admitted as part of the
contentions in the proceeding;
(2) The appropriate ruling, order, or grant or denial of relief
with its effective date;
(3) The action the NRC staff shall take upon transmittal of the
decision to the NRC staff under paragraph (e) of this section, if the
initial decision is inconsistent with the NRC staff action as described
in the notice required by Sec. 2.1202(a); and
(4) The time within which a petition for Commission review may be
filed, the time within which any answers to a petition for review may
be filed, and the date when the decision becomes final in the absence
of a petition for Commission review or Commission sua sponte review.
(d) Pending review and final decision by the Commission, an initial
decision resolving all issues before the presiding officer is
immediately effective upon issuance except:
(1) As provided in any order issued in accordance with Sec. 2.1211
that stays the effectiveness of an initial decision; or
(2) As otherwise provided by this part (e.g., Sec. 2.340) or by
the Commission in special circumstances.
(e) Once an initial decision becomes final, the Secretary shall
transmit the decision to the NRC staff for action in accordance with
the decision.

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

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

Sec. 2.1212 Petitions for Commission review of initial decisions.

Parties may file petitions for review of an initial decision under
this subpart in accordance with the procedures set out in Sec. 2.341.
Unless otherwise authorized by law, a party to an NRC proceeding must
file a petition for Commission review before seeking judicial review of
an agency action.

Sec. 2.1213 Application for a stay.

(a) Any application for a stay of the effectiveness of the NRC
staff's action on a matter involved in a hearing under this subpart
must be filed with the presiding officer within five (5) days of the
issuance of the notice of the NRC staff's action under Sec. 2.1202(a)
and must be filed and considered in accordance with paragraphs (b), (c)
and (d) of this section.
(b) An application for a stay of the NRC staff's action may not be
longer than ten (10) pages, exclusive of affidavits, and must contain:
(1) A concise summary of the action which is requested to be
stayed; and
(2) A concise statement of the grounds for a stay, with reference
to the factors specified in paragraph (d) of this section.
(c) Within ten (10) days after service of an application for a stay
of the NRC staff's action under this section, any party and/or the NRC
staff may file an answer supporting or opposing the granting of a stay.
Answers may not be longer than ten (10) pages, exclusive of affidavits,
and must concisely address the matters in paragraph (b) of this section
as appropriate. Further replies to answers will not be entertained.
(d) In determining whether to grant or deny an application for a
stay of the NRC staff's action, the following will be considered:
(1) Whether the requestor will be irreparably injured unless a stay
is granted;
(2) Whether the requestor has made a strong showing that it is
likely to prevail on the merits;
(3) Whether the granting of a stay would harm other participants;
and
(4) Where the public interest lies.
(e) Any application for a stay of the effectiveness of the
presiding officer's initial decision or action under this subpart shall
be filed with the Commission in accordance with Sec. 2.342.

0
50. The heading for subpart M is revised to read as follows:

Subpart M--Procedures for Hearings on License Transfer Applications

0
51. Section 2.1300 is revised to read as follows:

Sec. 2.1300 Scope of subpart M.

The provisions of this subpart, together with subpart C of this
part, govern all adjudicatory proceedings on an application 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 statutes, or pursuant to a license condition.
This subpart provides the only mechanism for requesting hearings on
license transfer requests, unless contrary case specific orders are
issued by the Commission.

Sec. 2.1306 [Removed]

0
52. Section 2.1306 is removed.

Sec. 2.1307 [Removed]

0
53. Section 2.1307 is removed.
0
54. Section 2.1308 is revised to read as follows:

Sec. 2.1308 Oral hearings.

Hearings under this subpart will be oral hearings, unless, within
15 days of the service of the notice or order granting the hearing, the
parties unanimously agree and file a joint motion requesting a hearing
consisting of written comments. No motion to hold a hearing consisting
of written comments will be entertained absent consent of all the
parties.

Sec. 2.1312 [Removed]

0
55. Section 2.1312 is removed.

Sec. 2.1313 [Removed]

0
56. Section 2.1313 is removed.

Sec. 2.1314 [Removed]

0
57. Section 2.1314 is removed.
0
58. In Sec. 2.1315, paragraph (a) is revised to read as follows:

Sec. 2.1315 Generic determination regarding license amendments to
reflect transfers.

(a) Unless otherwise determined by the Commission with regard to a
specific application, the Commission has determined that any amendment
to the license of a utilization facility or the license of an
Independent Spent Fuel Storage Installation which does no more than
conform the license to reflect the transfer action, involves
respectively, ``no significant hazards consideration,'' or ``no genuine
issue as to whether the health and safety of the public will be
significantly affected.''
* * * * *

Sec. 2.1317 [Removed]

0
59. Section 2.1317 is removed.

Sec. 2.1318 [Removed]

0
60. Section 2.1318 is removed.

[[Page 2271]]

0
61. In Sec. 2.1321, the introductory paragraph is republished and
paragraph (a) is revised to read as follows:

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

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

0
62. In Sec. 2.1322, the introductory text of paragraph (a) is
republished, and paragraph (a)(1) is revised to read as follows:

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

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

0
63. In Sec. 2.1323, paragraph (d) is revised to read as follows:

Sec. 2.1323 Presentation of testimony in an oral hearing.

* * * * *
(d) Testimony for the NRC staff will be presented only by persons
designated for that purpose by either the Executive Director for
Operations or a delegee of the Executive Director for Operations.
* * * * *

Sec. 2.1326 [Removed]

0
64. Section 2.1326 is removed.

Sec. 2.1328 [Removed]

0
65. Section 2.1328 is removed.

Sec. 2.1329 [Removed]

0
66. Section 2.1329 is removed.

Sec. 2.1330 [Removed]

0
67. Section 2.1330 is removed.
0
68. In Sec. 2.1331, paragraph (b) is revised to read as follows:

Sec. 2.1331 Commission action.

* * * * *
(b) The decision on issues designated for hearing under Sec. 2.309
will be based on the record developed at hearing.

0
69. A new Subpart N is added to read as follows:
Subpart N--Expedited Proceedings with Oral Hearings
Sec.
2.1400 Purpose and scope of subpart N.
2.1401 Definitions.
2.1402 General procedures and limitations; requests for other
procedures.
2.1403 Authority and role of the NRC staff.
2.1404 Prehearing conference.
2.1405 Hearing.
2.1406 Initial decision--issuance and effectiveness.
2.1407 Appeal and Commission review of initial decision.

Subpart N--Expedited Proceedings with Oral Hearings

Sec. 2.1400 Purpose and scope of subpart N.

The purpose of this subpart is to provide simplified procedures for
the expeditious resolution of disputes among parties in an informal
hearing process. The provisions of this subpart, together with subpart
C of this part, govern all adjudicatory proceedings conducted under the
authority of the Atomic Energy Act of 1954, as amended, the Energy
Reorganization Act of 1974, and 10 CFR part 2 except for proceedings on
the licensing of the construction and operation of a uranium enrichment
facility, proceedings on an initial application for authorization to
construct a high-level radioactive waste repository at a geologic
repository operations area noticed under Sec. Sec. 2.101(f)(8) or
2.105(a)(5), proceedings on an initial application for authorization to
receive and possess high-level radioactive waste at a geologic
repository operations area, 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 N procedures, and proceedings for the direct or indirect
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.

Sec. 2.1401 Definitions.

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

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

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

Sec. 2.1403 Authority and role of the NRC staff.

[[Page 2272]]

other appropriate action on the matter which is the subject of the
hearing. When the NRC staff takes its action, it shall notify the
presiding officer and the parties to the proceeding of its action. The
NRC staff's action on the matter is effective upon issuance, except in
matters involving:
(1) An application to construct and/or operate a production or
utilization facility;
(2) An application for the construction and operation of an
independent spent fuel storage installation located at a site other
than a reactor site or a monitored retrievable storage facility under
10 CFR part 72; or
(3) Production or utilization facility licensing actions that
involve significant hazards considerations as defined in 10 CFR 50.92.
(b)(1) The NRC staff is not required to be a party to proceedings
under this subpart, except where:
(i) The proceeding involves an application denied by the NRC staff
or an enforcement action proposed by the staff; or
(ii) The presiding officer determines that the resolution of any
issue in the proceeding would be aided materially by the NRC staff's
participation in the proceeding as a party and orders the staff to
participate as a party for the identified issue. In the event that the
presiding officer determines that the NRC staff's participation is
necessary, the presiding officer shall issue an order identifying the
issue(s) on which the staff is to participate as well as setting forth
the basis for the determination that staff participation will
materially aid in resolution of the issue(s).
(2) Within fifteen (15) days of the issuance of the order granting
requests for hearing/petitions to intervene and admitting contentions,
the NRC staff shall notify the presiding officer and the parties
whether it desires to participate as a party, and identify the
contentions on which it wishes to participate as a party. 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.
(3) Once the NRC staff chooses to participate as a party, it shall
have all the rights and responsibilities of a party with respect to the
admitted contention/matter in controversy on which the staff chooses to
participate.

Sec. 2.1404 Prehearing conference.

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

Sec. 2.1405 Hearing.

(a) No later than twenty (20) days after the conclusion of the
prehearing conference, the presiding officer shall hold a hearing on
any contention that remains in dispute. At the beginning of the
hearing, the presiding officer shall enter into the record all
agreements reached by the parties before the hearing.
(b) A hearing will be recorded stenographically or by other means,
under the supervision of the presiding officer. A transcript will be
prepared from the recording that will be the sole official transcript
of the hearing. The transcript will be prepared by an official reporter
who may be designated by the Commission or may be a regular employee of
the Commission. Except as limited by section 181 of the Act or order of
the Commission, the transcript will be available for inspection in the
agency's public records system. Copies of transcripts are available to
the parties and to the public from the official reporter on payment of
the charges fixed therefor. If a hearing is recorded on videotape or
other video medium, copies of the recording of each daily session of
the hearing may be made available to the parties and to the public from
the presiding officer upon payment of a charge fixed by the Chief
Administrative Judge. Parties may purchase copies of the transcript
from the reporter.
(c) Hearings will be open to the public, unless portions of the
hearings involving proprietary or other protectable information are
closed in accordance with the Commission's regulations.
(d) At the hearing, the presiding officer will not receive oral
evidence that is irrelevant, immaterial, unreliable or unduly
repetitious. Testimony will be under oath or affirmation.
(e) The presiding officer may question witnesses who testify at the
hearing, but the parties may not do so.
(f) Each party may present oral argument and a final statement of
position at the close of the hearing. Written post-hearing briefs and
proposed findings are not permitted unless ordered by the presiding
officer.

Sec. 2.1406 Initial decision--issuance and effectiveness.

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

[[Page 2273]]

appeals to the Commission in accordance with Sec. 2.1407 or the
Commission takes review of the decision sua sponte or the regulations
in this part specify other requirements with regard to the
effectiveness of decisions on certain applications.

Sec. 2.1407 Appeal and Commission review of initial decision.

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

0
70. A new Subpart O is added to read as follows:
Subpart O--Legislative Hearings
Sec.
2.1500 Purpose and scope.
2.1501 Definitions.
2.1502 Commission decision to hold legislative hearing.
2.1503 Authority of presiding officer.
2.1504 Request to participate in legislative hearing.
2.1505 Role of the NRC staff.
2.1506 Written statements and submission of information.
2.1507 Oral hearing.
2.1508 Recommendation of presiding officer.
2.1509 Ex parte communications and separation of functions.

Subpart O--Legislative Hearings

Sec. 2.1500 Purpose and scope.

The purpose of this subpart is to provide for simplified,
legislative hearing procedures to be used, at the Commission's sole
discretion, in:
(a) Any design certification rulemaking hearings under subpart B of
part 52 of this chapter that the Commission may choose to conduct; and
(b) Developing a record to assist the Commission in resolving,
under Sec. 2.335(d), a petition filed under Sec. 2.335(b).

Sec. 2.1501 Definitions.

Demonstrative information means physical things, not constituting
documentary information.
Documentary information means information, ordinarily contained in
documents or electronic files, but may also include photographs and
digital audio files.

Sec. 2.1502 Commission decision to hold legislative hearing.

(a) The Commission may, in its discretion, hold a legislative
hearing in either a design certification rulemaking under Sec.
52.51(b) of this chapter, or a proceeding where a question has been
certified to it under Sec. 2.335(d).
(b) Notice of Commission decision--(1) Hearing in design
certification rulemakings. If, at the time a proposed design
certification rule is published in the Federal Register under Sec.
52.51(a) of this chapter, the Commission decides that a legislative
hearing should be held, the information required by paragraph (c) of
this section must be included in the Federal Register notice for the
proposed design certification rule. If, following the submission of
written public comments submitted on the proposed design certification
rule which are submitted in accordance with Sec. 52.51(a) of this
chapter, the Commission decides to conduct a legislative hearing, the
Commission shall publish a notice in the Federal Register and on the
NRC Web site indicating its determination to conduct a legislative
hearing. The notice shall contain the information specified in
paragraph (c) of this section, and specify whether the Commission or a
presiding officer will conduct the legislative hearing.
(2) Hearings under Sec. 2.335(d). If, following a certification of
a question to the Commission by a Licensing Board under Sec. 2.335(d),
the Commission decides to hold a legislative hearing to assist it in
resolving the certified question, the Commission shall issue an order
containing the information required by paragraph (c) of this section.
The Commission shall serve the order on all parties in the proceeding.
In addition, if the Commission decides that persons and entities other
than those identified in paragraph (c)(2) may request to participate in
the legislative hearing, the Commission shall publish a notice of its
determination to hold a legislative hearing in the Federal Register and
on the NRC Web site. The notice shall contain the information specified
in paragraph (c) of this section, and refer to the criteria in Sec.
2.1504 which will be used in determining requests to participate in the
legislative hearing.
(c) If the Commission decides to hold a legislative hearing, it
shall, in accordance with paragraph (b) of this section:
(1) Identify with specificity the issues on which it wishes to
compile a record;
(2) Identify, in a hearing associated with a question certified to
the Commission under Sec. 2.335(d), the parties and interested
State(s), governmental bodies, and Federally-recognized Indian Tribe
under Sec. 2.315(c), who may participate in the legislative hearing;
(3) Identify persons and entities that may, in the discretion of
the Commission, be invited to participate in the legislative hearing;
(4) Indicate whether other persons and entities may request, in
accordance with Sec. 2.1504, to participate in the legislative
hearing, and the criteria that the Commission or presiding officer will

[[Page 2274]]

use in determining whether to permit such participation;
(5) Indicate whether the Commission or a presiding officer will
conduct the legislative hearing;
(6) Specify any special procedures to be used in the legislative
hearing;
(7) Set the dates for submission of requests to participate in the
legislative hearing, submission of written statements and demonstrative
and documentary information, and commencement of the oral hearing; and
(8) Specify the location where the oral hearing is to be held.
Ordinarily, oral hearings will be held in the Washington, DC
metropolitan area.

Sec. 2.1503 Authority of presiding officer.

If the Commission appoints a presiding officer to conduct the
legislative hearing, the presiding officer shall be responsible for
expeditious development of a sufficient record on the Commission-
identified issues, consistent with the direction provided by the
Commission under Sec. 2.1502(c). The presiding officer has the
authority otherwise accorded to it under Sec. Sec. 2.319(a), (c), (e),
(g), (h), and (i), 2.324, and 2.333 to control the course of the
proceeding, and may exercise any other authority granted to it by the
Commission in accordance with Sec. 2.1502(c)(6).

Sec. 2.1504 Request to participate in legislative hearing.

(a) Any person or entity who wishes to participate in a legislative
hearing noticed under either Sec. 2.1502(b)(1) or (b)(2) shall submit
a request to participate by the date specified in the notice. The
request must address:
(1) A summary of the person's position on the subject matter of the
legislative hearing; and
(2) The specific information, expertise or experience that the
person possesses with respect to the subject matter of the legislative
hearing.
(b) The Commission or presiding officer shall, within ten (10) days
of the date specified for submission of requests to participate,
determine whether the person or entity has met the criteria specified
by the Commission under Sec. 2.1502(c)(4) for determining requests to
participate in the legislative hearing, and issue an order to that
person or entity informing them of the presiding officer's decision. A
presiding officer's determinations in this regard are final and not
subject to any motion for reconsideration or appeal to the Commission;
and the Commission's determination in this regard are final and are not
subject to a motion for reconsideration.

Sec. 2.1505 Role of the NRC staff.

The NRC staff shall be available to answer any Commission or
presiding officer's questions on staff-prepared documents, provide
additional information or documentation that may be available to the
staff, and provide other assistance that the Commission or presiding
officer may request without requiring the NRC staff to assume the role
of an advocate. The NRC staff may request to participate in the
legislative hearing by providing notice to the Commission or presiding
officer, as applicable, within the time period established for
submitting a request to participate; or if no notice is provided under
Sec. 2.1502(b)(2), within ten (10) days of the Commission's order
announcing its determination to conduct a legislative hearing.

Sec. 2.1506 Written statements and submission of information.

All participants shall file written statements on the Commission-
identified issues, and may submit documentary and demonstrative
information. Written statements, copies of documentary information, and
a list and short description of any demonstrative information to be
submitted must be received by the NRC (and in a hearing on issues
stemming from a Sec. 2.335(b) petition, by the parties in the
proceeding in which the petition was filed) no later than ten (10) days
before the commencement of the oral hearing.

Sec. 2.1507 Oral hearing.

(a) Not less than five (5) days before the commencement of the oral
hearing, the presiding officer shall issue an order setting forth the
grouping and order of appearance of the witnesses at the oral hearing.
The order shall be filed upon all participants by email or facsimile
transmission if possible, otherwise by overnight mail.
(b) The Commission or presiding officer may question witnesses.
Neither the Commission nor the presiding officer will ordinarily permit
participants to submit recommended questions for the Commission or
presiding officer to propound to witnesses. However, if the Commission
or presiding officer believe that the conduct of the oral hearing will
be expedited and that consideration of such proposed questions will
assist in developing a more focused hearing record, the Commission or
presiding officer may, in its discretion, permit the participants to
submit recommended questions for the Commission or presiding officer's
consideration.
(c) The Commission or presiding officer may request, or upon
request of a participant may, in the presiding officer's discretion,
permit the submission of additional information following the close of
the oral hearing. Such information must be submitted no later than five
(5) days after the close of the oral hearing and must be served at the
same time upon all participants at the oral hearing.

Sec. 2.1508 Recommendation of presiding officer.

(a) If the Commission is not acting as a presiding officer, the
presiding officer shall, within thirty (30) days following the close of
the legislative hearing record, certify the record to the Commission on
each of the issues identified by the Commission.
(b) The presiding officer's certification for each Commission-
identified issue shall contain:
(1) A transcript of the oral phase of the legislative hearing;
(2) A list of all participants;
(3) A list of all witnesses at the oral hearing, and their
affiliation with a participant;
(4) A list, and copies of, all documentary information submitted by
the participants with ADAMS accession numbers;
(5) All demonstrative information submitted by the participants;
(6) Any written answers submitted by the NRC staff in response to
questions posed by the presiding officer with ADAMS accession numbers;
(7) A certification that all documentary information has been
entered into ADAMS, and have been placed on the NRC Web site unless
otherwise protected from public disclosure;
(8) A certification by the presiding officer that the record
contains sufficient information for the Commission to make a reasoned
determination on the Commission-identified issue; and
(9) At the option of the presiding officer, a summary of the
information in the record and a proposed resolution of the Commission-
identified issue with a supporting basis.

Sec. 2.1509 Ex parte communications and separation of functions.

Section 2.347 applies in a legislative hearing. Section 2.348
applies in a legislative hearing only where the hearing addresses an
issue certified to the Commission under Sec. 2.335(d), and then only
with respect to the underlying contested matter.

Appendix A to Part 2--[Removed]

0
71. Appendix A to part 2 is removed.

[[Page 2275]]

0
72. Appendix D to 10 CFR Part 2 is revised to read as follows:

Appendix D to Part 2--Schedule for the Proceeding on Application for
Either a Construction Authorization for a High-Level Waste Repository
at a Geologic Repository Operations Area, or a License To Receive and
Possess High-Level Radioactive Waste at a Geologic Repository
Operations Area

------------------------------------------------------------------------
Day Regulation (10 CFR) Action
------------------------------------------------------------------------
0............................ 2.101(f)(8), FEDERAL REGISTER
2.105(a)(5). Notice of Hearing.
30........................... 2.309(b)(2)......... Petition to
intervene/request
for hearing, w/
contentions.
30........................... .................... Petition for status
as interested
government
participant.
55........................... 2.315(c)............ Answers to
intervention &
interested
government
participant
petitions.
62........................... 2.309(h)(1)......... Petitioner's
response to
answers.
70........................... .................... Prehearing
Conference.
100.......................... 2.309(h)(2)......... Prehearing
Conference Order;
identifies
participants in
proceeding, admits
contentions, sets
discovery and
other schedules.
110.......................... 2.1021.............. Appeals from
Prehearing
Conference Order.
120.......................... .................... Briefs in
opposition to
appeals.
150.......................... 2.1021, 2.329....... Commission ruling
on appeals from
Prehearing
Conference Order.
548.......................... .................... Staff issues SER.
.2.1015(b)
150.2.1015(b)
578.......................... .................... Prehearing
conference.
608.......................... 2.1015(b)........... Discovery complete;
Prehearing
Conference order
finalizes issues
for hearing and
sets schedule for
prefiled testimony
and hearing.
618.......................... 2.1015(b)........... Appeals from
Prehearing
Conference Order.
628.......................... .................... Briefs in
opposition to
appeals; last date
for filing motions
for summary
disposition.
648.......................... .................... Last date for
responses to
summary
disposition
motions.
658.......................... .................... Commission ruling
on appeals from
Prehearing
Conference Order;
last date for
party opposing
motion to file
response to new
facts and
arguments in
responses
supporting motion.
698.......................... 2.1015(b)........... Decision on summary
disposition
motions (may be
determination to
dismiss or hold in
abeyance).
720.......................... 2.1015(b), 2.710(a). Evidentiary hearing
begins.
810.......................... 2.710(a)............ Evidentiary hearing
ends.
840.......................... .................... Applicant's
proposed findings.
850.......................... .................... Other parties'
proposed findings.
855.......................... .................... Applicant's reply
to other parties'
proposed findings.
955.......................... .................... Initial decision.
965.......................... 2.710(e)............ Stay motion,
petition for
reconsideration,
notice of appeal.
975.......................... .................... Other parties'
response to stay
motion, petition
for
reconsideration.
995.......................... .................... Commission ruling
on stay motion.
985.......................... .................... Appellant's briefs.
1015......................... 2.712(a)(1)......... Appellees' briefs.
1125......................... 2.712(a)(2)......... Commission
decision.
2.712(a)(3)
2.713
342(a), 2.345(a),
2.1015(c)(1)
2.342(d), 2.345(b)
2.1015(c)(2)
2.1015(c)(3)
------------------------------------------------------------------------

PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES

0
73. The authority citation for part 50 continues to read as follows:

Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101,
185, 68 Stat. 955 as amended (42 U.S.C. 2131, 2235), sec. 102, Pub.
L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd),
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a,
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Section 50.37 also
issued under E.O. 12829, 3 CFR 1993 Comp., p. 570; E.O. 12958, as
amended, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR 1995 Comp., p.
391. Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-
415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under
sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80--50.81 also
issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234).
Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C 2237).

0
74. In Sec. 50.57, paragraph (c) is revised to read as follows:

Sec. 50.57 Issuance of operating license.

* * * * *
(c) An applicant may, in a case where a hearing is held in
connection with a pending proceeding under this section make a motion
in writing, under this paragraph (c), for an operating license
authorizing low-power testing (operation at not more than 1 percent of
full power for the purpose of testing the

[[Page 2276]]

facility), and further operations short of full power operation. Action
on such a motion by the presiding officer shall be taken with due
regard to the rights of the parties to the proceedings, including the
right of any party to be heard to the extent that his contentions are
relevant to the activity to be authorized. Before taking any action on
such a motion that any party opposes, the presiding officer shall make
findings on the matters specified in paragraph (a) of this section as
to which there is a controversy, in the form of an initial decision
with respect to the contested activity sought to be authorized. The
Director of Nuclear Reactor Regulation will make findings on all other
matters specified in paragraph (a) of this section. If no party opposes
the motion, the presiding officer will issue an order in accordance
with Sec. 2.319(p) authorizing the Director of Nuclear Reactor
Regulation to make appropriate findings on the matters specified in
paragraph (a) of this section and to issue a license for the requested
operation.

0
75. In Sec. 50.91, the introductory paragraph, and paragraphs (a)(4)
and (a)(6)(v) are revised to read as follows:

Sec. 50.91 Notice for public comment; State consultation.

The Commission will use the following procedures for an application
requesting an amendment to an operating license for a facility licensed
under Sec. Sec. 50.21(b) or 50.22 or for a testing facility, except
for amendments subject to hearings governed by 10 CFR part 2, subpart
L. For amendments subject to 10 CFR part 2, subpart L, the following
procedures will apply only to the extent specifically referenced in
Sec. 2.309(b) of this chapter, except that notice of opportunity for
hearing must be published in the Federal Register at least thirty (30)
days before the requested amendment is issued by the Commission:
(a) * * *
(4) Where the Commission makes a final determination that no
significant hazards consideration is involved and that the amendment
should be issued, the amendment will be effective on issuance, even if
adverse public comments have been received and even if an interested
person meeting the provisions for intervention called for in Sec.
2.309 of this chapter has filed a request for a hearing. The Commission
need hold any required hearing only after it issues an amendment,
unless it determines that a significant hazards consideration is
involved, in which case the Commission will provide an opportunity for
a prior hearing.
* * * * *
(6) * * *
(v) Will provide a hearing after issuance, if one has been
requested by a person who satisfies the provisions for intervention
specified in Sec. 2.309 of this chapter;
* * * * *

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

0
76. The authority citation for part 51 continues to read as follows:

Authority: Sec. 161, 68 Stat. 948, as amended, sec. 1701, 106
Stat. 2951, 2952, 2953, (42 U.S.C. 2201, 2297f); secs. 201, as
amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841,
5842). Subpart A also issued under National Environmental Policy Act
of 1969, secs. 102, 104, 105, 83 Stat. 853-854, as amended (42
U.S.C. 4332, 4334, 4335); and Pub. L. 95-604, Title II, 92 Stat.
3033-3041; and sec. 193, Pub. L. 101-575, 104 Stat. 2835 42 U.S.C.
2243). Sections 51.20, 51.30, 51.60, 51.80. and 51.97 also issued
under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241, and sec.
148, Pub. L. 100-203, 101 Stat. 1330-223 (42 U.S.C. 10155, 10161,
10168). Section 51.22 also issued under sec. 274, 73 Stat. 688, as
amended by 92 Stat. 3036-3038 (42 U.S.C. 2021) and under Nuclear
Waste Policy Act of 1982, sec 121, 96 Stat. 2228 (42 U.S.C. 10141).
Sections 51.43, 51.67, and 51.109 also under Nuclear Waste Policy
Act of 1982, sec 114(f), 96 Stat. 2216, as amended (42 U.S.C.
10134(f)); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

0
77. In Sec. 51.15, paragraph (b) is revised to read as follows:

Sec. 51.15 Time schedules.

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

0
78. Section 51.16 is revised to read as follows:

Sec. 51.16 Proprietary information.

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

0
79. In Sec. 51.109, paragraphs (a)(1) and (a)(2) are revised to read
as follows:

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

(a)(1) In a proceeding for issuance of a construction authorization
for a high-level radioactive waste repository at a geologic repository
operations area under parts 60 and 63 of this chapter, and in a
proceeding for issuance of a license to receive and possess source,
special nuclear, and byproduct material at a geologic repository
operations area under parts 60 and 63 of this chapter, the NRC staff
shall, upon the publication of the notice of hearing in the Federal
Register, present its position on whether it is practicable to adopt,
without further supplementation, the environmental impact statement
(including any supplement thereto) prepared by the Secretary of Energy.
If the position of the staff is that supplementation of the
environmental impact statement by NRC is required, it shall file its
final supplemental environmental impact statement with the
Environmental Protection Agency, furnish that statement to commenting
agencies, and make it available to the public, before presenting its
position, or as soon thereafter as may be practicable. In discharging
its responsibilities under this paragraph, the staff shall be guided by
the principles set forth in paragraphs (c) and (d) of this section.
(2) Any other party to the proceeding who contends that it is not
practicable to adopt the DOE environmental impact statement, as it may
have been supplemented, shall file a contention to that effect within
thirty (30) days after the publication of the notice of hearing in the
Federal Register. Such contention must be accompanied by one or more
affidavits which set forth factual and/or technical bases for the claim
that, under the principles set forth in paragraphs (c) and (d) of this
section, it is not practicable to adopt the DOE environmental impact
statement, as it may have been supplemented. The presiding officer
shall resolve disputes concerning adoption of the DOE environmental
impact statement by using, to the extent possible, the criteria and
procedures that are followed in ruling on motions to reopen under Sec.
2.326 of this chapter.
* * * * *

[[Page 2277]]

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

0
80. The authority citation for part 52 continues to read:

Authority: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat.
936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as
amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs.
201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C.
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

0
81. Section 52.21 is revised to read as follows:

Sec. 52.21 Hearings.

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

0
82. In Sec. 52.29, paragraph (b) is revised to read as follows:

Sec. 52.29 Application for renewal.

* * * * *
(b) Any person whose interests may be affected by renewal of the
permit may request a hearing on the application for renewal. The
request for a hearing must comply with 10 CFR 2.309. If a hearing is
granted, notice of the hearing will be published in accordance with 10
CFR 2.309.
* * * * *

0
83. In Sec. 52.39, paragraph (a)(2)(ii) is revised to read as follows:

Sec. 52.39 Finality of early site permit determinations.

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

0
84. In Sec. 52.43, paragraph (b) is revised to read as follows:

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

* * * * *
(b) Appendix O governs the NRC staff review and approval of
preliminary and final standard designs. A NRC staff approval under
appendix O in no way affects the authority of the Commission or the
presiding officer in any proceeding under 10 CFR part 2. Subpart B of
part 52 governs Commission approval, or certification, of standard
designs by rulemaking.
* * * * *

0
85. Section 52.51 is revised to read as follows:

Sec. 52.51 Administrative review of applications.

(a) A standard design certification is a rule that will be issued
in accordance with the provisions of subpart H of 10 CFR part 2, as
supplemented by the provisions of this section. The Commission shall
initiate the rulemaking after an application has been filed under Sec.
52.45 and shall specify the procedures to be used for the rulemaking.
The notice of proposed rulemaking published in the Federal Register
must provide an opportunity for the submission of comments on the
proposed design certification rule. If, at the time a proposed design
certification rule is published in the Federal Register under Sec.
52.51(a), the Commission decides that a legislative hearing should be
held, the information required by 10 CFR 2.1502(c) must be included in
the Federal Register notice for the proposed design certification
(b) Following the submission of comments on the proposed design
certification rule, the Commission may, at its discretion, hold a
legislative hearing under the procedures in Subpart O of part 2 of this
chapter. The Commission shall publish a notice in the Federal Register
of its decision to hold a legislative hearing. The notice shall contain
the information specified in paragraph (c) of this section, and specify
whether the Commission or a presiding officer will conduct the
legislative hearing.
(c) Notwithstanding anything in 10 CFR 2.390 to the contrary,
proprietary information will be protected in the same manner and to the
same extent as proprietary information submitted in connection with
applications for construction permits and operating licenses under 10
CFR part 50, provided that the design certification shall be published
in chapter I of this title.

0
86. In Sec. 52.63, paragraph (a)(1) is revised to read as follows:

Sec. 52.63 Finality of standard design certifications.

(a)(1) Notwithstanding any provision in 10 CFR 50.109, while a
standard design certification is in effect under Sec. Sec. 52.55 or
52.61, the Commission may not modify, rescind, or impose new
requirements on the certification, whether on its own motion, or in
response to a petition from any person, unless the Commission
determines in a rulemaking that a modification is necessary either to
bring the certification or the referencing plants into compliance with
the Commission's regulations applicable and in effect at the time the
certification was issued, or to assure adequate protection of the
public health and safety or the common defense and security. The
rulemaking procedures must provide for notice and opportunity for
public comment.
* * * * *

0
87. In Appendix A to Part 52, Section VIII, paragraphs B.5.f., C.3. and
C.5. are revised to read as follows:

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

* * * * *

[[Page 2278]]

VIII. Processes for Changes and Departures

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

0
88. In Appendix B to part 52, Section VIII, paragraphs B.5.f., C.3. and
C.5. are revised to read as follows:

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

* * * * *

VIII. Processes for Changes and Departures

0
89. In Appendix C to Part 52, Section VIII, paragraphs B.5.f., C.3. and
C.5. are revised to read as follows:

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

* * * * *

VIII. Processes for Changes and Departures

[[Page 2279]]

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

0
90. In Appendix N to Part 52, the three introductory paragraphs are
revised to read as follows:

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

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

0
91. In Appendix O to part 52, paragraph 6 is revised to read as
follows:

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

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

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

0
92. The authority citation for part 54 continues to read as follows:

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

0
93. In Sec. 54.29, paragraph (c) is revised to read as follows:

Sec. 54.29 Standards for issuance of a renewed license.

* * * * *
(c) Any matters raised under Sec. 2.335 have been addressed.

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

0
94. The authority citation for part 60 continues to read as follows:

Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071,
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.
95-01, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2228, as amended (42 U.S.C. 10134, 10141), and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

0
95. Section 60.1 is revised to read as follows:

Sec. 60.1 Purpose and scope.

This part prescribes rules governing the licensing (including
issuance of a construction authorization) of the U.S. Department of
Energy to receive and possess source, special nuclear, and byproduct
material at a geologic repository operations area sited, constructed,
or operated in accordance with the Nuclear Waste Policy Act of 1982, as
amended. This part does not apply to any activity licensed under
another part of this chapter. This part does not apply to the licensing
of the U.S. Department of Energy to receive and possess source, special
nuclear, and byproduct material at a geologic repository operations
area sited, constructed, or operated at Yucca Mountain, Nevada, in
accordance with the Nuclear Waste Policy Act of 1992, as amended, and
the Energy Policy Act of 1992, subject to part 63 of this chapter. This
part also gives notice to all persons who knowingly provide to any
licensee, applicant, contractor, or subcontractor, components,
equipment, materials, or other goods or services, that relate to a
licensee's or applicant's activities subject to this part, that they
may be individually subject to NRC enforcement action for violation of
Sec. 60.11.

0
96. In Sec. 60.22, paragraph (a) is revised to read as follows:

Sec. 60.22 Filing and distribution of application.

(a) 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 source,
special nuclear, or byproduct material at a geologic repository
operations area at a site which has been characterized, and any
amendments thereto, and an accompanying environmental impact statement
and any supplements, shall be signed by the Secretary of Energy or the
Secretary's authorized representative and must be filed with the
Director.
* * * * *

0
97. In Sec. 60.63, paragraph (a) is revised to read as follows:

Sec. 60.63 Participation in license reviews.

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

[[Page 2280]]

0
98. Section 60.130 is revised to read as follows:

Sec. 60.130 General considerations.

(a) Pursuant to the provisions of Sec. 60.21(c)(2)(i), an
application for construction authorization for a high-level radioactive
waste repository at a geologic repository operations area, and an
application for a license to receive, possess, store, and dispose of
high-level radioactive waste in the geologic repository operations
area, must include the principal design criteria for a proposed
facility. The principal design criteria establish the necessary design,
fabrication, construction, testing, maintenance, and performance
requirements for structures, systems, and components important to
safety and/or important to waste isolation. Sections 60.131 through
60.134 specify minimum requirements for the principal design criteria
for the geologic repository operations area.
(b) These design criteria are not intended to be exhaustive.
However, omissions in Sec. Sec. 60.131 through 60.134 do not relieve
DOE from any obligation to provide such features in a specific facility
needed to achieve the performance objectives.

PART 63--DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC
REPOSITORY AT YUCCA MOUNTAIN, NEVADA

0
99. The authority citation for part 63 continues to read as follows:

Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat.
929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071,
2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88
Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L.
95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-
425, 96 Stat. 2213g, 2238, as amended (42 U.S.C. 10134, 10141), and
Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec.
1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

0
100. Section 63.1 is revised to read as follows:

Sec. 63.1 Purpose and scope.

This part prescribes rules governing the licensing (including
issuance of a construction authorization) of the U.S. Department of
Energy to receive and possess source, special nuclear, and byproduct
material at a geologic repository operations area sited, constructed,
or operated at Yucca Mountain, Nevada, in accordance with the Nuclear
Waste Policy Act of 1982, as amended, and the Energy Policy Act of
1992. As provided in 10 CFR 60.1, the regulations in part 60 of this
chapter do not apply to any activity licensed under another part of
this chapter. This part also gives notice to all persons who knowingly
provide to any licensee, applicant, contractor, or subcontractor,
components, equipment, materials, or other goods or services, that
relate to a licensee's or applicant's activities subject to this part,
that they may be individually subject to NRC enforcement action for
violation of Sec. 63.11.

0
101. In Sec. 63.22, paragraph (a) is revised to read as follows:

Sec. 63.22 Filing and distribution of application.

(a) An application for a construction authorization for a high-
level radioactive waste repository at a geologic repository operations
area at Yucca Mountain, and an application for a license to receive and
possess source, special nuclear, or byproduct material at a geologic
repository operations area at the Yucca Mountain site that has been
characterized, any amendments to the application, and an accompanying
environmental impact statement and any supplements, must be signed by
the Secretary of Energy or the Secretary's authorized representative
and must be filed with the Director in triplicate on paper and optical
storage media.
* * * * *

PART 70--DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL

0
102. The authority citation for part 70 continues to read as follows:

Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948,
953, 954, as amended, sec. 234, 83 Stat. 444, as amended, (42 U.S.C.
2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended,
202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42
U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835 as amended
by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec.
1704, 112 Stat. 2704 (44 U.S.C. 3504 note).
Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141,
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).
Section 70.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122,
68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec.
57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36
and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42
U.S.C. 2234). Section 70.81 also issued under secs. 186, 187, 68
Stat. 955 (42 U.S.C. 2236, 2237). Section 70.82 also issued under
sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

0
103. Section 70.23a is revised to read as follows:

Sec. 70.23a Hearing required for uranium enrichment facility.

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

PART 72--LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF
SPENT NUCLEAR FUEL AND HIGH-LEVEL RADIOACTIVE WASTE

0
104. The authority citation for part 72 continues to read as follows:

Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183,
184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953,
954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C.
2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233,
2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat.
688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846);
Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-
486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L.
91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135,
137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148,
Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153,
10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2704 (44 U.S.C.
3504 note).
Section 72.44(g) also issued under secs. 142(b) and 148(c), (d),
Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b),
10168(c), (d)). Section 72.46 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). Section 72.96(d) also issued under sec. 145(g), Pub.
L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also
issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-
425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101,
10137(a), 10161(h)). Subparts K and L are also issued under sec.
133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252
(42 U.S.C. 10198).

0
105. Section 72.202 is revised to read as follows:

Sec. 72.202 Participation in license reviews.

States, local governmental bodies and affected, Federally-
recognized Indian Tribes may participate in license reviews as provided
in Subpart C of Part 2 of this chapter.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

0
106. The authority citation for part 73 continues to read as follows:

Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec.
147, 94 Stat. 780 (42 U.S.C.

[[Continued on page 2281]]

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

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

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