[Federal Register Volume 59, Number 107 (Monday, June 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13630]


[[Page Unknown]]

[Federal Register: June 6, 1994]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

RIN 3150-AE67

 

Informal Hearing Procedures for Materials Licensing Adjudications

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission is amending its regulations 
to provide that persons requesting a hearing in certain materials 
license proceedings must file their requests within 30 days of 
receiving actual notice of the pendency of the license application, or, 
if the person does not learn about the application until it has been 
granted, within 30 days of receiving actual notice of the grant of the 
application. No hearing requests filed more than 180 days after the 
grant of the application will be entertained. The amendment applies 
only to materials licensing actions which are not of sufficient 
importance to warrant notice in the Federal Register. The rule change 
eliminates an ambiguous provision in the Commission's current 
regulations and serves to ensure that hearing requests are filed as 
promptly as possible, in order to promote the timely identification and 
resolution of problems with or objections to proposed licensing 
actions.

EFFECTIVE DATE: July 6, 1994.

FOR FURTHER INFORMATION CONTACT: Peter G. Crane, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, 
Telephone: 301-504-1634.

SUPPLEMENTARY INFORMATION:

Background

    The Commission's rules governing informal hearing procedures of 
adjudications on materials licenses are set forth in subpart L to part 
2. When the rules do not require the Commission to publish notice of 
all proposed licensing actions, the requirements for requesting a 
hearing are tied to the date on which a requester receives actual 
notice of such actions.
    Prior to this rule change, the regulation stated that if Federal 
Register notice of an action is not published, then a request for a 
hearing must be filed within ``the earlier of--(i) Thirty (30) days 
after the requestor receives actual notice of a pending application or 
an agency action granting an application; or (ii) One hundred and 
eighty (180) days after agency action granting an application.''
    In August, 1992, the presiding officer in a materials licensing 
proceeding was faced with a case in which a requester with actual 
notice of a license application filed in 1989 waited to ask for a 
hearing until the NRC granted the application, three and a half years 
later. The licensee and the NRC staff objected that the request should 
have been filed within 30 days of the requester's receiving actual 
notice of the application. (In other words, they were arguing that the 
rule was meant to allow persons to file within 30 days of receiving 
actual notice of the grant of an application only if they were unaware 
until then of the pendency of the application.) The requester responded 
that the regulation contained no such implicit condition, and instead 
gave requesters a choice: Either they could file within 30 days of 
receiving actual notice of the application, or they could wait until 
the grant of the application and then file within 30 days of learning 
of the agency's action.
    The presiding officer sustained the requester's position. He 
observed that the NRC staff and the licensee were in effect arguing 
that the regulation should be read as though it required the request to 
be filed at the earliest of three events: 30 days after receipt of 
actual notice of the filing of the application; 30 days after receipt 
of actual notice of the grant of the application; and 180 days after 
the grant of the application. He added that the Statement of 
Considerations accompanying the rule had referred to requests for 
hearing being timely if filed within 30 days of a requester's receiving 
actual notice ``of a licensing action.'' The presiding officer offered 
a possible rationale for the two separate windows of opportunity: a 
potential requester, hopeful that an application might not be approved, 
would not have to file a hearing request until the grant of the 
application eliminated doubt as to the NRC's intent.
    The Commission did not disturb the presiding officer's ruling, but 
it directed the staff to prepare a proposed rule that would make clear 
that requesters are indeed required to file at the earliest of the 
three events described above. Such a notice was published in the 
Federal Register on September 29, 1993, at 58 FR 50858.

Analysis of Public Comments

    Two comments were received on the proposed rule, but neither one 
was directed to the actual subject of the rulemaking, i.e., whether the 
NRC should continue to allow someone with actual knowledge of an 
application to wait for that application to be granted before 
requesting a hearing.

1. Comment of Kerr-McGee Corporation

    The first comment, from Kerr-McGee Corporation, endorsed the 
proposed rule, but noted that the new language ``seemingly leaves the 
door open for filing of requests for hearing almost at will.'' Kerr-
McGee asserted that the rule is hinged on when the requester ``receives 
actual notice,'' an ``ambiguous'' term that ``is not related to the 
time an actual amendment application is filed.''
    The response to this comment is that the NRC's proposed rule was 
directed to a specific and narrow issue--whether a potential requester 
with actual notice of an application should be able to delay filing a 
hearing request until the application is granted. The notice did not 
contemplate revising the rule to change the concept of making the 
receipt of actual notice the basis of the time for filing a hearing 
request.

2. Comment of Ohio Citizens for Responsible Energy (OCRE)

    The second comment was from Ohio Citizens for Responsible Energy 
(OCRE), which objected to the portion of the regulation that bars 
petitions filed more than 180 days after the NRC's grant of an 
application. OCRE asserted that it was conceivable that someone would 
not learn of a licensing action until after the passage of 180 days, 
and would by then, through no fault of his or her own, have lost all 
opportunity to request a hearing.
    OCRE's point, like Kerr-McGee's, goes beyond the scope of the quite 
narrow change that the NRC proposed. The Commission's notice made clear 
that the issue to be resolved was whether potential requesters with 
actual notice of an application for a particular licensing action were 
intended to have two bites at the apple, or should instead be required 
to file for a hearing at their earliest opportunity. The concept of a 
180-day cutoff was never identified as being subject to reconsideration 
by the Commission.
    Having considered the comments received, and finding that neither 
of them suggests a flaw in the specific correction proposed in the 
rule, the Commission has determined that the following final rule 
should be promulgated.

Environmental Impact: Categorical Exclusion

    The NRC has determined that this regulation is the type of action 
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, 
neither an environmental impact statement nor an environmental 
assessment has been prepared for this final rule.

Paperwork Reduction Act Statement

    This rule does not contain a new or amended information collection 
requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 
3501 et seq.). Existing requirements were approved by the Office of 
Management and Budget, approval number 3150-0136.

Regulatory Analysis

    The Nuclear Regulatory Commission prepared a brief regulatory 
analysis for the proposed rule. Neither of the commenters having 
discussed the regulatory analysis, the Commission has not considered it 
necessary to prepare a separate analysis of the final rule.

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. 
The rule sets forth the time frame within which a person other than an 
applicant must file a request for a hearing in a licensing proceeding 
held under the informal procedures set forth in 10 CFR part 2, subpart 
L. The rule does not impose any obligations on regulated entities that 
may fall within the definition of ``small entities'' as set forth in 
section 601(3) of the Regulatory Flexibility Act, or within the 
definition of ``small business'' as found in section 3 of the Small 
Business Act, 15 U.S.C. 632, or within the small business size 
standards contained in 13 CFR part 121.

Backfit Analysis

    This rule does not involve any new provisions which would impose 
backfits as defined in 10 CFR 50.109(a)(1). Accordingly, no backfit 
analysis pursuant to 10 CFR 50.109(c) is required.

List of Subjects in 10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
materials, Nuclear power plants and reactors, Penalties, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting 
the following amendments to 10 CFR part 2.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

    1. The authority citation for part 2 continues to read as follows:

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552.
    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. 10134(f)); sec. 102, 
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 
2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 
2135, 2233, 2239). Section 2.104 also issued under sec. 193, Pub. L. 
101-575, 104 Stat. 2835 (42 U.S.C. 2243). 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. 182, 186, 234, 955, 83 Stat. 
444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat. 1246 (42 
U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102, Pub. 
L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 
2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 
2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 
1A of Appendix C 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). Appendix A also 
issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135). 
Appendix B also issued under sec. 10, Pub. L. 99-240, 99 Stat. 1842 
(42 U.S.C. 2021b et seq.).

    2. In Sec. 2.1205, paragraph (c) introductory text is republished 
and paragraph (c)(2) is revised to read as follows:


Sec. 2.1205  Request for a hearing; petition for leave to intervene.

* * * * *
    (c) A person other than an applicant shall file a request for a 
hearing within--
* * * * *
    (2) If a Federal Register notice is not published in accordance 
with paragraph (c)(1), the earliest of--
    (i) Thirty (30) days after the requester receives actual notice of 
a pending application, or
    (ii) Thirty (30) days after the requester receives actual notice of 
an agency action granting an application in whole or in part, or
    (iii) One hundred and eighty (180) days after agency action 
granting an application in whole or in part.
* * * * *
    Dated at Rockville, Maryland, this 31st day of May 1994.

    For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-13630 Filed 6-3-94; 8:45 am]
BILLING CODE 7590-01-P