[Federal Register Volume 63, Number 176 (Friday, September 11, 1998)]
[Proposed Rules]
[Pages 48644-48653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24456]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 176 / Friday, September 11, 1998 / 
Proposed Rules  

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 51

RIN 3150--AG09


Streamlined Hearing Process for NRC Approval of License Transfers

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission is proposing an amendment to 
its regulations that would provide specific uniform procedures and 
rules of practice for handling requests for hearings associated with 
license transfer applications involving both material and reactor 
licensees. Conforming amendments are also made to certain other parts 
of the Commission's regulations. These new provisions would provide for 
public participation and opportunity for an informal hearing on matters 
relating to license transfers, specify procedures for filing and 
docketing applications for license transfers, and assign appropriate 
authorities for issuance of administrative amendments to reflect 
approved license transfers. This rulemaking would also add a 
categorical exclusion that would permit processing of transfer 
applications without preparation of Environmental Assessments.

DATES: The comment period expires October 13, 1998. Comments received 
after this date will be considered if it is practical to do so, but the 
Commission is able to assure consideration only for comments received 
on or before this date. Comments may be submitted either electronically 
or in written form.

ADDRESSES: Written comments should be sent to: Secretary of the 
Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, Attention: Rulemaking and Adjudications Staff.
    You may also provide comments via the NRC's interactive rulemaking 
web site through the NRC home page (http://www.nrc.gov). From the home 
page, select ``Rulemaking'' from the tool bar. The interactive 
rulemaking web site can then be accessed by selecting ``Rulemaking 
Forum.'' This site provides the ability to upload comments as files 
(any format), if your web browser supports that function. For 
information about the interactive rulemaking web site, contact Ms. 
Carol Gallagher, (301) 415-5905; e-mail [email protected].
    Comments received on this rulemaking may be examined at the NRC 
Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Joseph R. Gray, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone (301) 415-1740, E-mail [email protected].

SUPPLEMENTARY INFORMATION:

Introduction and Purpose

    As part of broader efforts to improve the effectiveness of the 
agency's programs and processes, the Commission has begun an 
examination of its practices and procedures for considering proposed 
licensing and regulatory actions before it. The Commission recently 
issued a ``Statement of Policy on Conduct of Adjudicatory Proceedings'' 
directing its hearing boards and presiding officers to employ certain 
measures to ensure efficient conduct of proceedings within the 
framework of 10 CFR Part 2, Subpart G, the agency's formal adjudicatory 
hearing procedures. (See 63 FR 41872; August 5, 1998).
    A number of categories of NRC licensees, but in particular the 
electric power industry, have undergone and will continue to undergo 
significant transformations as a result of changes to the economic and 
regulatory environment in which they operate. Electric utilities in 
particular are now operating in an environment which is increasingly 
characterized by restructuring and organizational change. In recent 
years, the Commission has seen a significant increase in the number of 
requests for transfers of NRC licenses. The number of requests related 
to reactor licenses has increased from a historical average of 2-3 per 
year to more than 20 requests in fiscal year 1997. With the 
restructuring that the energy industry is undergoing, we expect this 
high rate of requests for approval of license transfers to continue. 
Because of the need for expeditious decision making from all agencies, 
including the Commission, for these kinds of transactions, timely and 
effectively resolution of requests for transfers on the part of the 
Commission is essential.
    In general, license transfers do not involve any changes to plant 
operations or significant changes in personnel of consequence to the 
continued reasonable assurance of public health and safety, but rather 
involve changes in ownership or partial ownership of facilities at a 
corporate level. Section 184 of the Atomic Energy Act of 1954, as 
amended (AEA), specifies, however, that:

    [N]o license granted hereunder * * * shall be transferred, 
assigned, or in any manner disposed of, either voluntarily or 
involuntarily, directly or indirectly, through transfer of control 
of any license to any person, unless the Commission shall, after 
securing full information, find that the transfer is in accordance 
with the provisions of this Act, and shall give its consent in 
writing. (42 U.S.C. 2234; 10 CFR 30.34(b), 40.46, 50.80.)

    Transfers falling within the foregoing provision include indirect 
transfers which might entail, for example, the establishment of a 
holding company over an existing licensee, as well as direct transfers, 
such as transfer of an ownership interest held by a non-operating, 
minority owner, and the complete transfer of the ownership and 
operating authority of a single or majority owner. Although other 
requirements of the Commission's licensing provisions may also be 
addressed to the extent relevant to the particular transfer action, 
typical staff review of such applications consists largely of assuring 
that the ultimately licensed entity has the capability to meet 
financial qualification and decommissioning funding aspects of NRC 
regulations. These financial capabilities are important over the long 
term, but have no direct or immediate impact on the requirements for 
day-to-day operations at a licensed facility. The same is generally 
true of applications involving the transfer of materials licenses.
    Notwithstanding the nature of the issues relevant to a decision on 
whether to give consent to a license transfer, past

[[Page 48645]]

Commission practice has generally used formal hearing procedures in 
accordance with the provisions of 10 CFR Part 2, Subpart G, for reactor 
license transfers or informal hearing procedures as provided by 10 CFR 
Part 2, Subpart L, in connection with materials licenses. As explained 
above, however, such transfers do not, as a general proposition, 
involve the type of technical issues with immediate impact on the 
actual operation of the facilities that could benefit from review by a 
multi-member, multi-disciplined Atomic Safety and Licensing Board 
historically used by the Commission in hearings on initial licensing or 
issuing amendments to licenses that substantially affect the technical 
operations of a licensed reactor facility. It is a matter suitable for 
reasonable discussion whether such complex hearing procedures provide 
the best means of reaching decisions on such technical issues, but, be 
they the best or not, they clearly are not required and are not the 
most efficient means for resolving the issues encountered in license 
transfers. Accordingly, the Commission has determined that requests for 
hearings on applications for license transfers would be more 
effectively handled by a separate Subpart of 10 CFR Part 2 which 
establishes an efficient and appropriate process for handling hearing 
requests associated with transfer applications commensurate with the 
nature of the issues involved and the rights of all parties.
    The basic requirement for an opportunity for a hearing on a license 
transfer is found in Section 189.a of the Atomic Energy Act of 1954, as 
amended (AEA), which provides that:

    [I]n any proceeding under this Act, for the granting, 
suspending, revoking, or amending of any license or construction 
permit, or application to transfer control, * * * the Commission 
shall grant a hearing upon the request of any person whose interest 
may be affected by the proceeding, and shall admit any such person 
as a party to such proceeding. (42 U.S.C. 2239(a)(1).)

    The Commission believes AEA sections 184 and 189 give the 
Commission the flexibility to fashion procedures which provide for a 
fair process to consider any issues raised concerning license transfers 
while still proceeding in an expedited manner. In 1983, a hearing on a 
materials license amendment was held not to be required by statute, 
i.e. (Sec. 189.a of the Atomic Energy Act, to be conducted ``on the 
record''. City of West Chicago v. U.S. Nuclear Regulatory Commission, 
701 F.2d 632, 641-45 (7th Cir. 1983). There, the court declined to read 
section 189.a as requiring ``on-the-record'' hearings, in the absence 
of clear Congressional ``intent to trigger the formal on-the-record 
hearing provisions of the APA.'' Id. at 641. The Commission has since 
stated that it interprets section 189.a as not requiring formal 
hearings in reactor licensing proceedings. En Banc Brief for 
Respondents dated August 30, 1991 (filed in the U.S. Court of Appeals 
for the District of Columbia Circuit, No. 89-1381, Nuclear Information 
and Resource Service v. NRC, at pp. 32-38).
    During the past several years, the Commission has, on several 
occasions, undertaken to tailor procedures appropriate to reaching 
decisions on particular types of proposed actions. These approaches 
have been upheld by the courts using the principles set forth in 
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-
844 (1984). In Nuclear Information Resource Service v. Nuclear 
Regulatory Commission, 969 F.2d 1169, 1173 (D.C. Cir. 1992), upholding 
the Commission's new procedures for issuance of a combined license for 
standardized reactor designs, the Court noted that

    While this section [189.a] plainly requires a ``hearing upon 
request'' before the ``granting'' of a license, it provides no 
unambiguous instruction as to how the ``hearing'' is to be held; nor 
does it speak in any direct fashion to the question of whether the 
Commission must rehear issues already resolved at earlier stages in 
the licensing process. As we noted in Union of Concerned Scientists 
v. NRC, 920 F.2d 50, 53-54 (D.C. Cir. 1990) ( ``UCS II''):
    [T]he [Atomic Energy] Act itself nowhere describes the content 
of a hearing or prescribes the manner in which this ``hearing'' is 
to be run. * * * We are, of course, obliged to defer to the 
operating procedures employed by the agency [i.e., move to a Chevron 
step II analysis] when the governing statute requires only that a 
``hearing'' be held. (emphasis in original).

    In Kelley v. Selin, 42 F.3d 1501, 1511 (6th Cir. 1995), the court 
followed a similar line of reasoning in concluding that the procedures 
adopted by the Commission to approve casks for spent nuclear fuel 
storage were acceptable. These decisions give the Commission confidence 
that an interpretation of section 189.a to permit the kind of 
procedures we propose here will find judicial support.1
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    \1\ Further, the Commission has specifically found that the 
statute does not mandate pre-effectiveness hearings for transfers of 
NRC licenses, an action which the Commission has noted is not a 
licensing action under Section 189.a(1) of the AEA. Long Island 
Lighting Company (Shoreham Nuclear Power Station, Unit 1), CLI-92-4, 
35 NRC 69, 77 (1992). In this decision, the Commission determined 
that the consent called for by Section 184 of the AEA was to be 
granted by order, not by license amendment, though it was recognized 
that conforming license amendments, of an administrative nature, 
might also be required to reflect a change in the name of the 
licensee. 35 NRC at 76-77 and n.6.
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    To promote uniformity, the proposed hearing procedures for license 
transfers will apply to both materials and reactor licenses. The 
procedures are designed to provide for public participation in the 
event of requests for a hearing under these provisions, while at the 
same time providing an efficient process that recognizes the time-
sensitivity normally present in transfer cases.
    The proposed procedures would cover any direct or indirect transfer 
for which NRC approval is required pursuant to the regulatory 
provisions under which the license was issued. NRC regulations and the 
Atomic Energy Act require approval of any transfer of control of a 
license. See AEA, Sec. 184. 42 U.S.C. 2234. This would include those 
transfers that require license amendments and those that do not. It 
should be recognized that not all license transfers will require 
license amendments. For example, the total acquisition of a licensee, 
without a change in the name of the licensee, (e.g., through the 
creation of a holding company which acquires the existing licensee but 
which, beyond ownership of the licensee, does not otherwise affect 
activities for which a license is required), would require NRC 
approval, but would not necessarily require any changes in the NRC 
license for the facilities owned by the licensee.
    These procedures do not expand or change the circumstances under 
which NRC approval of a transfer is necessary nor do they change the 
circumstances under which a license amendment would be required to 
reflect an approved transfer. Amendments to licenses are required only 
to the extent that ownership or operating authority of a licensee, as 
reflected in the license itself, is changed by a transfer. A discussion 
of the process for issuing amendments associated with an approved 
transfer, when necessary, is provided below.
    The proposed procedures, similar to those used by the Commission in 
cases involving export and import licensing hearings under 10 CFR Part 
110, provide for a legislative type hearing for license transfers. 
These procedures will provide opportunities for meaningful public 
participation while minimizing areas where a formal adjudicatory 
process could introduce delays without any commensurate benefit to the 
substance of the Commission's decisionmaking.
    The Commission will either elect to develop an evidentiary record 
and

[[Page 48646]]

render a final decision itself, or will appoint a Presiding Officer who 
will be responsible for collecting evidence and developing a record for 
submission to the Commission. For such proceedings, the Commission may 
appoint a Presiding Officer from the Atomic Safety and Licensing Board 
Panel (ASLBP), although the proposed regulations do not restrict the 
sources from which the Commission may select.
    It should be noted that the regulations do not require the NRC 
staff to participate in the proceedings as a formal party unless the 
Commission directs the use of Subpart G procedures or otherwise directs 
the staff to participate as a party. The Commission expects, 
nevertheless, that, in most cases, the staff will participate to the 
extent that it will offer into evidence staff's Safety Evaluation 
Report that supports its conclusions on whether to initially grant or 
deny the requested license transfer and provide one or more appropriate 
sponsoring witnesses. Greater staff involvement may be directed by the 
Commission on its own initiative or at the staff's choosing, as 
circumstances warrant.
    One aspect of the proposed rule designed to improve efficiency is 
the decision to require oral hearings on all transfers where a hearing 
is to be held under Subpart M, with very limited exceptions. It has 
been the Commission's experience under Subpart L proceedings that 
intervenors are particularly interested in having the opportunity to 
make oral presentations or arguments for inclusion in the record. Even 
though such requests are rarely granted,2 intervenors can 
and do introduce the issue of whether to have oral presentations in 
individual proceedings. Rather than allow the issue of oral 
presentations to become a point of contention in individual proceedings 
(which could introduce unnecessary delays in completing the record) the 
proposed rule would resolve this concern by ensuring that all parties 
have the opportunity to present oral arguments and evidence. The 
question of whether cross examination of witnesses should be allowed 
has also introduced an area for argument in Subpart L 
proceedings.3 The Commission has addressed this area of 
potential dispute in the proposed rules by providing for questioning of 
witnesses only by the Presiding Officer. Although only the Presiding 
Officer may question witnesses, the proposed rules specifically provide 
parties the opportunity to present recommended questions to the 
Presiding Officer.
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    \2\ Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 
120 (1995)
    \3\ Id.
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    Another aspect of the rule intended to improve the efficiency of 
the adjudicatory process is that, while it does not provide for any 
separate discovery, it does require that a Hearing Docket containing 
all relevant documents and correspondence be established and be made 
available at the Commission's Public Document Room. This approach is in 
keeping with establishment of a case file as described in the 
Commission's recent Statement of Policy on Conduct of Adjudicatory 
Proceedings (63 FR 41872; August 5, 1998).
    Finally, to improve the efficiency of the adjudicatory process, the 
proposed rules would impose schedular milestones for the filing of 
testimony and responses and for the commencement of oral hearings. 
Subject to the Presiding Officer's scheduling adjustments in particular 
proceedings, the proposed procedures would require initial testimony, 
statements of position on the issues and responsive testimony to be 
filed within 50 days of the Commission's decision to grant a request 
for a hearing, and the hearing would commence in just over two months 
from the Commission's decision to hold a hearing. Assuming that the NRC 
staff is able to complete its technical review and take initial action 
on the transfer application within three to four months of its notice 
of receipt of the application, these procedures are expected to result 
in the issuance of a final Commission decision on the license transfer 
within about six to eight months of the notice of receipt of the 
application in routine cases. Complex cases requiring more extensive 
review or the use of different hearing procedures may take more time.

Administrative License Amendments Associated With License Transfers

    As discussed above, not all license transfers require license 
amendments. Only when the license specifically has reference to 
entities or persons that no longer are accurate following the approved 
transfer will a situation exist that requires amendments to the 
license. Such amendments are essentially administrative in nature. That 
is, in determining whether to approve such amendments, the only issue 
is whether the license amendment accurately reflects the approved 
transfer. Substantive issues regarding requests for a hearing on the 
appropriateness of the transfer itself may only be considered using the 
procedures in this proposed rule. The Commission has previously noted 
that issuance of such an administrative amendment, following the review 
and approval of the transfer itself, ``presents no safety questions and 
clearly involves no significant hazards considerations.'' Long Island 
Lighting Company, supra, 35 NRC at 77, n.6.
    Safety Evaluation Reports (SERs) prepared in connection with 
previous license transfers confirm that such transfers do not, as a 
general matter, have significant impacts on the public health and 
safety. Accordingly, the proposed regulations provide that conforming 
amendments to the license may be issued by the staff at any time after 
the staff has reviewed and approved the proposed transfer, 
notwithstanding the pendency of any hearing under the proposed Subpart 
M. As is done currently, staff approval of a transfer application will 
take the form of an order. Such order will also identify any license 
amendment issued.
    The Commission, through this rulemaking, is making a generic 
finding that, for purposes of 10 CFR 50.58(b)(5), 50.91 and 50.92, 
administrative amendments which do no more than reflect an approved 
transfer and do not directly affect actual operating methods and actual 
operation of the facility do not involve a ``significant hazards 
consideration'' and do not require that a hearing opportunity be 
provided prior to issuance. It must be emphasized that any post-
effectiveness hearing on such administrative amendments will be limited 
to the question of whether the amendment accurately reflects the 
approved transfer. The Commission does note, however, that it retains 
the authority, as a matter of discretion, to direct completion of 
hearings prior to issuance of the transfer approval and any required 
amendments in individual cases and to direct the use of other hearing 
procedures, if the Commission believes it is in the interest of public 
health and safety to do so.

Environmental Issues

    The staff has completed numerous Environmental Assessments related 
to license transfers. These assessments have uniformly demonstrated 
that there are no significant environmental effects from license 
transfers. Indeed, as the Commission has noted previously, amendments 
effectuating an approved transfer present no safety questions and 
involve no significant hazards considerations.4 Accordingly, 
the Commission has determined that a new categorical exclusion should 
be added to 10 CFR Part 51 which will obviate the need for the staff to 
continue to conduct

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individual Environmental Assessments in each transfer case.
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    \4\ Long Island Lighting Company, supra, 35 NRC at 77, n. 6.
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Limitation to License Transfers

    The Commission wishes to emphasize that the proposed rules address 
only license transfers and associated administrative amendments to 
reflect transfers. Requests for license amendments which involve 
changes in actual operations or requirements directly involving health 
and safety-related activities will continue to be subject to the 
amendment processes currently in use, including the requirement for 
individualized findings under 10 CFR 50.58, 50.91 and 50.92 that 
address the necessity for pre-effectiveness hearings.

Finding of No Significant Environmental Impact and Categorical 
Exclusion

    The Commission has determined under the National Environmental 
Policy Act (NEPA) of 1969, as amended, and the Commission's regulations 
in Subpart A of 10 CFR Part 51, that this rule, if adopted, falls 
within the categorical exclusion appearing at 10 CFR 51.22 (c)(1) for 
which neither an Environmental Assessment nor an Environmental Impact 
Statement is required.
    Further, under its procedures for implementing NEPA, the Commission 
may exclude from preparation of an environmental impact statement, or 
an environmental assessment, a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment and which have been found to have no such effect in NRC 
proceedings. In this rulemaking, the Commission proposes to find that 
the approval of a direct or indirect license transfer, as well as any 
required administrative license amendments to reflect the approved 
transfer, comprise a category of actions which do not individually or 
cumulatively have a significant effect on the human environment. 
Actions in this category are similar in that, under the AEA and 
Commission regulations, transfers of licenses (and associated 
administrative amendments to licenses) will not in and of themselves 
permit the licensee to operate the facility in any manner different 
from that which has previously been permitted under the existing 
license. Thus, the transfer will usually not raise issues of 
environmental impact that differ from those considered in initial 
licensing of a facility. In addition, the denial of a transfer would 
also have, in and of itself, no impact on the environment, since the 
licensee would still be authorized to operate the facility in 
accordance with the existing license.
    Environmental assessments that have been conducted regarding 
numerous license transfers under existing regulations have not 
demonstrated the existence of a major federal action significantly 
affecting the environment. Further, the proposed regulations do not 
apply to any request for an amendment that would directly affect the 
actual operation of a facility. Amendments that directly affect the 
actual operation of a facility would be subject to consideration 
pursuant to the existing license amendment processes, including the 
requirements in 10 CFR Part 2, Subparts G or L, as appropriate and 
applicable environmental review requirements of 10 CFR Part 51.

Paperwork Reduction Act Statement

    The proposed rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501, et. seq.). Existing requirements for 10 CFR Part 51 
were approved by the Office of Management and Budget, approval number 
3150-0021.

Public Protection Notification

    If an information collection does not display a currently valid OMB 
control number, the NRC may not conduct or sponsor, and a person is not 
required to respond to, the information collection.

Regulatory Analysis

    To determine whether the amendments to 10 CFR Part 2 contained in 
this proposed rule were appropriate, the Commission considered the 
following options:

1. The No-Action Alternative

    This alternative was not deemed acceptable for the following 
reasons. First, this option would leave reactor transfers subject to 
hearings using multi-member, multi-disciplined licensing boards, even 
though such transfers do not involve the type of complex technical 
questions for which multi-member boards of diverse background may 
provide a useful technical pool of experience.
    Second, the formal adjudicatory hearing process would needlessly 
add formality and resource burdens to the development of a record for 
reaching a decision on applications for transfer approval without any 
commensurate benefit to the public health and safety or the common 
defense and security.
    Third, the current process for materials licensees under 10 CFR 
Part 2, Subpart L, while not utilizing the multi-member licensing 
boards, does not necessarily result in uniform treatment of all license 
transfer requests, and provides at least the potential for more formal 
hearings. Even if the requests for more formal procedures are not 
granted in typical materials cases, the process of receiving motions 
for more formal procedures, allowing responses from all parties to 
those requests, and the need for the Presiding Officer to consider and 
rule on such requests introduces issues and litigation on matters not 
involving the merits of the particular application and thus introduces 
the potential for delays in materials license transfer proceedings, 
without clear benefit to the public health and safety or the common 
defense and security.

2. Use 10 CFR Part 2, Subpart G for All License Transfers

    While assuring uniformity for all license transfer requests, this 
option would not result in an expeditious process that would avoid the 
use of multi-member licensing boards which is unnecessary given the 
nature of typical transfer applications. It would also result in added 
formality and resources being devoted to materials license transfers on 
the part of all parties to the hearing, without any resulting benefit 
to public health and safety.

3. Use of 10 CFR Part 2, Subpart L for All License Transfers

    This option was considered as viable to achieve uniformity and to 
avoid the need for multi-member licensing boards for conducting 
requested hearings. Subpart L provides for paper hearings unless oral 
presentations are ordered by the Presiding Officer. Further, Subpart L 
allows the Presiding Officer the option of recommending to the 
Commission that more formal procedures be used. Even though such 
requests are rarely granted, as a practical matter, there are delays in 
the proceeding while parties petition the Presiding Officer and/or the 
Commission to have oral hearings and to use additional procedures, such 
as cross-examination and formal discovery. Such discretion in 
structuring individual hearings is appropriate where the breadth of 
potential actions and licensees (covering essentially all amendments 
for a wide variety of materials licensees) is governed by a single 
hearing process. This flexibility, however, inevitably leads to delays 
as each party to the hearings proposes and presents arguments to the 
Presiding Officer concerning how the hearing should be structured.
    Where, as in the proposed rule, the Commission is concerned with 
only one type of approval, the Commission has the ability to resolve 
through

[[Page 48648]]

rulemaking many of these procedural points concerning the conduct of 
the hearing. The resolution of these issues will allow the parties in 
license transfer proceedings to move expeditiously to examination of 
the substantive issues in the proceeding. The proposed process, similar 
to a legislative-type hearing, will also result in the record promptly 
reaching the Commission where a final agency determination can be made. 
The proposed rule dictates that oral hearings be held on each 
application for which a hearing request is granted unless the parties 
unanimously agree to forgo the oral hearing. This will remove the 
potential for a delay while parties petition the Presiding Officer for 
an oral hearing. Further, the proposed rule provides that the Presiding 
Officer will conduct all questioning of witnesses and there are no 
provisions for formal discovery, although docket files with relevant 
materials will be publicly available. The proposed rule resolves 
several areas of frequent dispute in Subpart L proceedings and was 
seen, therefore, as being more appropriate for license transfer 
proceedings where a timely decision is important to the public 
interest. These efficiencies can be achieved without any negative 
effect on substantive decisionmaking or the rights of all parties to a 
full and fair hearing since all parties will be allowed to present 
relevant witnesses, written testimony, and oral arguments, which should 
result in a high quality record on substantive issues for use by the 
Commission in reaching a decision on contested issues.

Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission hereby certifies that this rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This proposed rule does not change any requirements 
for submittal of license transfer requests to NRC, rather, the 
procedures designate how NRC will handle requests for hearings on 
applications for license transfers. Most requested hearings on license 
transfer applications involve reactor licensees which are large 
organizations which do not fall within the definition of a small 
business found in section 3 of the Small Business Action, 15 U.S.C. 
632, or within the small Business Standards set forth in 13 CFR Part 
121 or in the size standards adopted by the NRC (10 CFR 2.810). Based 
on the historically low number of requests for hearings involving 
materials licensees, it is not expected that this rule will have any 
significant economic impact on a substantial number of small 
businesses.

Backfit Analysis

    The NRC has determined that the backfit rule, 10 CFR 50.109, does 
not apply to this proposed rule and a backfit analysis is not required, 
because these amendments do not involve any provisions that would 
impose backfits as defined in 10 CFR 50.109. The rule does not 
constitute a backfit under 10 CFR 50.109, because it does not propose a 
change to or additions to requirements for existing structures, 
systems, components, procedures, organizations or designs associated 
with the construction or operation of a facility.

List of Subjects

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 51

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

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to 
adopt the following amendments to 10 CFR Parts 2 and 51.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS

    1. The authority citation for Part 2 is revised to read as follows:

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552.
    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f); Pub. 
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 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, 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). Sections 2.205(j) also 
issued under Pub. L. 101-410, 104 Stat. 890, as amended by section 
31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). 
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 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. sec. 184 (42 U.S.C. 
2234) and 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).

    2. In Sec. 2.101 paragraph (a)(1) is revised to read as follows:


Sec. 2.101  Filing of application.

    (a)(1) An application for a license, a license transfer, or an 
amendment to a license shall be filed with the Director of the Office 
of Nuclear Reactor Regulation or Director of the Office of Nuclear 
Material Safety and Safeguards, as prescribed by the applicable 
provisions of this chapter. A prospective applicant may confer 
informally with the staff prior to the filing of an application.
* * * * *
    3. In Sec. 2.1201 paragraph (a)(1) is revised to read as follows:


Sec. 2.1201  Scope of subpart.

    (a) * * *
    (1) The grant, renewal or licensee-initiated amendment of a 
materials license subject to parts 30, 32 through 35, 39, 40, or 70 of 
this chapter, with the exception of license amendments related to an 
application to transfer a license; or
* * * * *
    4. In Sec. 2.1205, paragraphs (a) and (b) are revised to read as 
follows:


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

    (a) Any person whose interest may be affected by a proceeding for 
the grant, renewal, or licensee-initiated amendment of a license 
subject to this subpart may file a request for a hearing.
    (b) An applicant for a license, a license amendment, or a license 
renewal who is issued a notice of proposed

[[Page 48649]]

denial or a notice of denial and who desires a hearing shall file the 
request for the hearing within the time specified in Sec. 2.103 in all 
cases. An applicant may include in the request for hearing a request 
that the presiding officer recommend to the Commission that procedures 
other than those authorized under this subpart be used in the 
proceeding, provided that the applicant identifies the special factual 
circumstances or issues which support the use of other procedures.
* * * * *
    5. In Part 2, a new Subpart M is added to read as follows:

Subpart M--Public Notification, Availability of Documents and Records, 
Hearing Requests and Procedures for Hearings on License Transfer 
Applications

Sec.
2.1300  Scope of subpart M.
2.1301  Public notice of receipt of a license transfer application.
2.1302  Notice of withdrawal of an application.
2.1303  Availability of documents in the Public Document Room.
2.1304  Hearing procedures.
2.1305  Written comments.
2.1306  Hearing request or intervention petition.
2.1307  Answers and replies.
2.1308  Commission action on a hearing request or intervention 
petition.
2.1309  Notice of oral hearing.
2.1310  Notice of hearing consisting of written comments.
2.1311  Conditions in a notice or order.
2.1312  Authority of the Secretary.
2.1313  Filing and service.
2.1314  Computation of time.
2.1315  Generic determination regarding license amendments to 
reflect transfer.
2.1316  Authority and role of NRC staff.
2.1317  Hearing docket.
2.1318  Acceptance of hearing documents.
2.1319  Presiding officer.
2.1320  Responsibility and power of the presiding officer in an oral 
hearing.
2.1321  Participation and schedule for submissions in a hearing 
consisting of written comments.
2.1322  Participation and schedule for submissions in an oral 
hearing.
2.1323  Presentation of testimony in an oral hearing.
2.1324  Appearance in an oral hearing.
2.1325  Motions and requests.
2.1326  Burden of proof.
2.1327  Application for a stay of the effectiveness of NRC staff 
action on license transfer.
2.1328  Default.
2.1329  Waiver of a rule or regulation.
2.1330  Reporter and transcript for an oral hearing.
2.1331  Commission action.

Subpart M--Public Notification, Availability of Documents and 
Records, Hearing Requests and Procedures for Hearings on Licensed 
Transfer Applications


Sec. 2.1300  Scope of Subpart M.

    This subpart governs requests for, and procedures for conducting, 
hearings on any 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. This subpart is to provide the only mechanism 
for requesting hearings on license transfer requests, unless contrary 
case specific orders are issued by the Commission.


Sec. 2.1301  Public notice of receipt of a license transfer 
application.

    (a) The Commission will notice the receipt of each application for 
direct or indirect transfer of a specific NRC license by placing a copy 
of the application in the NRC Public Document Room.
    (b) The Commission will also publish in the Federal Register a 
notice of receipt of an application for approval of a license transfer 
involving 10 CFR part 50 and part 52 licenses and major fuel cycle 
facility licenses issued under 10 CFR part 70. This notice constitutes 
the notice required by Sec. 2.105 with respect to all matters related 
to the application requiring NRC approval.
    (c) Periodic lists of applications received may be obtained upon 
request addressed to the Public Document Room, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555.


Sec. 2.1302  Notice of withdrawal of an application.

    The Commission will notice the withdrawal of an application by 
publishing the notice of withdrawal in the same manner as the notice of 
receipt of the application was published under Sec. 2.1301.


Sec. 2.1303  Availability of documents in the Public Document Room.

    Unless exempt from disclosure under part 9 of this chapter, the 
following documents pertaining to each application for a license 
transfer requiring Commission approval will be placed in the Public 
Document Room when available:
    (a) The license transfer application and any associated requests;
    (b) Commission correspondence with the applicant or licensee 
related to the application;
    (c) Federal Register notices;
    (d) The NRC staff Safety Evaluation Report (SER).
    (e) Any NRC staff order which acts on the license transfer 
application; and
    (f) If a hearing is held, the hearing record and decision.


Sec. 2.1304  Hearing procedures.

    The procedures in this subpart will constitute the exclusive basis 
for hearings on license transfer applications for all NRC specific 
licenses.


Sec. 2.1305  Written comments.

    (a) As an alternative to requests for hearings and petitions to 
intervene, persons may submit written comments regarding license 
transfer applications. The Commission will consider and, if 
appropriate, respond to these comments, but these comments do not 
otherwise constitute part of the decisional record.
    (b) These comments should be submitted within 30 days after public 
notice of receipt of the application and addressed to the Secretary, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
Attention: Rulemakings and Adjudications Staff.
    (c) The Commission will provide the applicant with a copy of the 
comments. Any response the applicant chooses to make to the comments 
must be submitted within 10 days of service of the comments on the 
applicant. Such responses do not constitute part of the decisional 
record.


Sec. 2.1306  Hearing request or intervention petition.

    (a) Any person whose interest may be affected by the Commission's 
action on the application may request a hearing or petition for leave 
to intervene on a license application for approval of a direct or 
indirect transfer of a specific license.
    (b) Hearing requests and intervention petitions must--
    (1) State the name, address, and telephone number of the requestor 
or petitioner;
    (2) Set forth the issues sought to be raised and
    (i) Demonstrate that such issues are within the scope of the 
proceeding on the license transfer application,
    (ii) Demonstrate that such issues are relevant to the findings the 
NRC must make to grant the application for license transfer,
    (iii) Provide a concise statement of the alleged facts or expert 
opinions which support the petitioner's position on the issues and on 
which the petitioner intends to rely at hearing, together with 
references to the specific sources and documents on which the 
petitioner intends to rely to support its position on the issues, and

[[Page 48650]]

    (iv) Provide sufficient information to show that a genuine dispute 
exists with the applicant on a material issue of law or fact.
    (3) Specify both the facts pertaining to the petitioner's interest 
and how the interest may be affected, with particular reference to the 
factors in Sec. 2.1308(a).
    (4) Be served on both the applicant and the NRC Office of the 
Secretary by any of the methods for service specified in Sec. 2.1313.
    (c) Hearing requests and intervention petitions will be considered 
timely only if filed not later than:
    (1) 20 days after notice of receipt is published in the Federal 
Register, for those applications published in the Federal Register;
    (2) 45 days after notice of receipt is placed in the Public 
Document Room for all other applications; or
    (3) Such other time as may be provided by the Commission.


Sec. 2.1307  Answers and replies.

    (a) Unless otherwise specified by the Commission, an answer to a 
hearing request or intervention petition may be filed within 10 days 
after the request or petition has been served.
    (b) Unless otherwise specified by the Commission, a reply to an 
answer may be filed within 5 days after service of that answer.
    (c) Answers and replies should address the factors in Sec. 2.1308.


Sec. 2.1308  Commission action on a hearing request or intervention 
petition.

    (a) In considering a hearing request or intervention petition on an 
application for a transfer of an NRC license, the Commission will 
consider:
    (1) The nature of the Petitioner's alleged interest;
    (2) Whether that interest will be affected by an approval or denial 
of the application for transfer;
    (3) The possible effect of an order granting the request for 
license transfer on that interest, including whether the relief 
requested is within the Commission's authority, and, if so, whether 
granting the relief requested would redress the alleged injury;
    and
    (4) Whether the issues sought to be litigated are
    (i) Within the scope of the proceeding;
    (ii) Relevant to the findings the Commission must make to act on 
the application for license transfer;
    (iii) Appropriate for litigation in the proceeding, and
    (iv) Adequately supported by the statements, allegations, and 
documentation required by Sec. 2.1306(b)(2)(iii) and (iv).
    (b) Untimely hearing requests or intervention petitions may be 
denied unless good cause for failure to file on time is established. In 
reviewing untimely requests or petitions, the Commission will also 
consider:
    (1) The availability of other means by which the requestor's or 
petitioners' interest will be protected or represented by other 
participants in a hearing; and
    (2) The extent to which the issues will be broadened or final 
action on the application delayed.
    (c) The Commission will deny a request or petition to the extent it 
pertains solely to matters outside its jurisdiction.
    (d)(1) After consideration of the factors covered by paragraphs (a) 
through (c) of this section, the Commission will issue a notice or 
order granting or denying a hearing request or intervention petition, 
designating the issues for any hearing that will be held and 
designating the Presiding Officer. A notice granting a hearing will be 
published in the Federal Register and served on the parties to the 
hearing.
    (2) Hearings under this subpart will be oral hearings, unless, 
within 15 days of the service of the notice or order granting a 
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 
unanimous consent of all parties.
    (3) A denial of a request for hearing and a denial of any petition 
to intervene will set forth the reasons for the denial.


Sec. 2.1309  Notice of oral hearing.

    (a) A notice of oral hearing will--
    (1) State the time, place and issues to be considered;
    (2) Provide names and addresses of participants,
    (3) Specify the time limit for participants and others to indicate 
whether they wish to present views;
    (4) Specify the schedule for the filing of written testimony, 
statements of position, proposed questions for the Presiding Officer to 
consider, and rebuttal testimony consistent with the schedule 
provisions of Sec. 2.1321;
    (5) Specify that the oral hearing shall commence within 15 days of 
the date for submittal of rebuttal testimony unless otherwise ordered;
    (6) State any other instructions the Commission deems appropriate;
    (7) If so determined by the NRC staff or otherwise directed by the 
Commission, direct that the staff participate as a party with respect 
to some or all issues.
    (b) If the Commission is not the Presiding Officer, the notice of 
oral hearing will also state:
    (1) When the jurisdiction of the Presiding Officer commences and 
terminates;
    (2) The powers of the Presiding Officer;
    (3) Instructions to the Presiding Officer to certify promptly the 
completed hearing record to the Commission without a recommended or 
preliminary decision.


Sec. 2.1310  Notice of hearing consisting of written comments.

    A notice of hearing consisting of written comments will:
    (a) State the issues to be considered;
    (b) Provide the names and addresses of participants;
    (c) Specify the schedule for the filing of written testimony, 
statements of position, proposed questions for the Presiding Officer to 
consider for submission to the other parties, and rebuttal testimony, 
consistent with the schedule provisions of Sec. 2.1321.
    (d) State any other instructions the Commission deems appropriate.


Sec. 2.1311  Conditions in a notice or order.

    (a) A notice or order granting a hearing or permitting intervention 
shall--
    (1) Restrict irrelevant or duplicative testimony; and
    (2) Require common interests to be represented by a single 
participant.
    (b) If a participant's interests do not extend to all the issues in 
the hearing, the notice or order may limit her/his participation 
accordingly.


Sec. 2.1312  Authority of the Secretary.

    The Secretary or the Assistant Secretary may rule on procedural 
matters relating to proceedings conducted by the Commission itself 
under this subpart to the same extent they can do so under Sec. 2.772 
for proceedings under subpart G.


Sec. 2.1313  Filing and service.

    (a) Hearing requests, intervention petitions, answers, replies and 
accompanying documents must be served as described in paragraph (b) of 
this section by delivery, facsimile transmission, e-mail or other means 
that will ensure receipt by close of business on the due date for 
filing. Any participant filing hearing requests, intervention 
petitions, replies and accompanying documents should include 
information on mail and delivery addresses, e-mail addresses, and 
facsimile numbers in their initial filings which may be used by the 
Commission, Presiding Officer and other parties for serving documents 
on the participant.

[[Page 48651]]

    (b) All filings must be served upon the applicant; the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555; the 
Secretary of the Commission, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555, and participants if any. If service to the 
Secretary is by delivery or by mail, the filings should be addressed to 
the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, Attention: Rulemakings and Adjudications Staff. E-mail 
filings may be sent to the Secretary at the following e-mail address: 
[email protected]. Facsimile transmission filings may be filed with the 
Secretary using the following number: 301-415-1101.
    (c) Service is completed by:
    (1) Delivering the paper to the person; or leaving it in her or his 
office with someone in charge; or, if there is no one in charge, 
leaving it in a conspicuous place in the office; or, if the recipient 
has no office or it is closed, leaving it at her or his usual place of 
residence with some occupant of suitable age and discretion;
    (2) Depositing it in the United States mail, properly stamped and 
addressed; or
    (3) Any other manner authorized by law, when service cannot be made 
as provided in paragraphs (c)(1) or (2) of this section.
    (4) For facsimile transmission, sending copies to the facsimile 
machine of the person being served;
    (5) For e-mail, sending the filing in electronic form attached to 
an e-mail message directed to the person being served.
    (d) Proof of service, stating the name and address of the person 
served and the manner and date of service, shall be shown, and may be 
made by--
    (1) Written acknowledgment of the person served or an authorized 
representative; or
    (2) The certificate or affidavit of the person making the service.
    (e) The Commission may make special provisions for service when 
circumstances warrant.


Sec. 2.1314  Computation of time.

    (a) In computing time, the first day of a designated time period is 
not included and the last day is included. If the last day is a 
Saturday, Sunday or legal holiday at the place where the required 
action is to be accomplished, the time period will end on the next day 
which is not a Saturday, Sunday or legal holiday.
    (b) In time periods of 7 days or less, Saturdays, Sundays and 
holidays are not counted.
    (c) Whenever an action is required within a prescribed period by a 
paper served pursuant to Sec. 2.1307, 3 days shall be added to the 
prescribed period if service is by regular mail.


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 
utilization facility license amendment conforming the license to 
reflect the transfer action is administrative in nature and involves no 
significant hazards considerations.
    (b) Where administrative license amendments are necessary to 
reflect an approved transfer, such amendments will be included in the 
order that approves the transfer. Any challenge to the administrative 
license amendment is limited to the question of whether the license 
amendment accurately reflects the approved transfer.


Sec. 2.1316  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 Safety Evaluation 
Report (SER), the staff is expected to promptly issue approval or 
denial of license transfer requests. Notice of such action shall be 
promptly transmitted to the Presiding Officer and parties to the 
proceeding.
    (b) Except as otherwise directed in accordance with 
Sec. 2.1309(a)(7), the staff is not required to be a party to 
proceedings under this subpart but will offer into evidence its SER 
associated with the transfer application and provide one or more 
sponsoring witnesses.
    (c) If the staff desires to participate as a party, the staff shall 
notify the Presiding Officer and the parties and shall thereupon be 
deemed to be a party with all the rights and responsibilities of a 
party.


Sec. 2.1317  Hearing docket.

    For each hearing, the Secretary will, maintain a docket which will 
include the hearing transcript, exhibits and all papers filed or issued 
in connection with the hearing. This file will be made available to all 
parties in accordance with the provisions of Sec. 2.1303 and will 
constitute the only discovery in proceedings under this subpart.


Sec. 2.1318  Acceptance of hearing documents.

    (a) Each document filed or issued must be clearly legible and bear 
the docket number, license application number, and hearing title.
    (b) Each document shall be filed in one original and signed by the 
participant or its authorized representative, with the address and date 
of signature indicated. The signature is a representation that the 
document is submitted with full authority, the person signing knows its 
contents and that, to the best of their knowledge, the statements made 
in it are true.
    (c) A document not meeting the requirements of this section may be 
returned with an explanation for nonacceptance and, if so, will not be 
docketed.


Sec. 2.1319  Presiding officer.

    (a) The Commission will ordinarily be the Presiding Officer at a 
hearing under this part. However, the Commission may provide in a 
hearing notice that one or more Commissioners, or any other person 
permitted by law, will preside.
    (b) A participant may submit a written motion for the 
disqualification of any person presiding. The motion shall be supported 
by an affidavit setting forth the alleged grounds for disqualification. 
If the Presiding Officer does not grant the motion or the person does 
not disqualify himself and the Presiding Officer or such other person 
is not the Commission or a Commissioner, the Commission will decide the 
matter.
    (c) If any person presiding deems himself or herself disqualified, 
he or she shall withdraw by notice on the record after notifying the 
Commission.
    (d) If a Presiding Officer becomes unavailable, the Commission will 
designate a replacement.
    (e) Any motion concerning the designation of a replacement 
Presiding Officer shall be made within 5 days after the designation.
    (f) Unless otherwise ordered by the Commission, the jurisdiction of 
a Presiding Officer other than the Commission commences as designated 
in the hearing notice and terminates upon certification of the hearing 
record to the Commission, or when the Presiding Officer is 
disqualified.


Sec. 2.1320  Responsibility and power of the presiding officer in an 
oral hearing.

    (a) The Presiding Officer in any oral hearing shall conduct a fair 
hearing, develop a record that will contribute to informed 
decisionmaking, and, within the framework of the Commission's orders, 
have the power necessary to achieve these ends, including the power to:
    (1) Take action to avoid unnecessary delay and maintain order;
    (2) Dispose of procedural requests;
    (3) Question participants and witnesses, and entertain suggestions 
as to questions which may be asked of participants and witnesses.

[[Page 48652]]

    (4) Order consolidation of participants;
    (5) Establish the order of presentation;
    (6) Hold conferences before or during the hearing;
    (7) Establish time limits;
    (8) Limit the number of witnesses; and
    (9) Strike or reject duplicative or irrelevant presentations.
    (b) Where the Commission itself does not preside:
    (1) The Presiding Officer may certify questions or refer rulings to 
the Commission for decision;
    (2) Any hearing order may be modified by the Commission; and
    (3) The Presiding Officer will certify the completed hearing record 
to the Commission, which may then issue its decision on the hearing or 
provide that additional testimony be presented.


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 shall be 
filed within 30 days of the date of the Commission's Notice granting a 
hearing pursuant to Sec. 2.1308(d)(1), unless the Commission or 
Presiding Officer directs otherwise.
    (b) Written responses, rebuttal testimony with supporting 
affidavits directed to the initial statements and testimony of other 
participants, and proposed written questions for the Presiding Officer 
to consider for submittal to persons sponsoring testimony submitted 
under paragraph (a) of this section. These materials shall be filed 
within 20 days of the filing of the materials submitted under paragraph 
(a) of this section, unless the Commission or Presiding Officer directs 
otherwise.
    (c) Written concluding statements of position on the issues. These 
materials shall be filed within 20 days of the filing of the materials 
submitted under paragraph (b) of this section, unless the Commission or 
the Presiding Officer Directs otherwise.


Sec. 2.1322  Participation 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 hearing:
    (1) Initial written statements of position and written testimony 
with supporting affidavits on the issues. These materials shall be 
filed within 30 days of the date of the Commission's notice granting a 
hearing pursuant to Sec. 2.1308(d)(1), unless the Commission or 
Presiding Officer directs otherwise.
    (2) (i) Written responses and rebuttal testimony with supporting 
affidavits directed to the initial statements and testimony of other 
participants;
    (ii) Proposed questions for the Presiding Officer to consider for 
propounding to persons sponsoring testimony.
    (3) These materials must be filed within 20 days of the filing of 
the materials submitted under paragraph (a)(1) of this section, unless 
the Commission or Presiding Officer directs otherwise.
    (b) The oral hearing should commence within 65 days of the date of 
the Commission's notice granting a hearing unless the Commission or 
Presiding Officer directs otherwise. Ordinarily, questioning in the 
oral hearing will be conducted by the Presiding Officer, using either 
the Presiding Officer's questions or questions submitted by the 
participants or a combination of both.
    (c) Written post-hearing statements of position on the issues 
addressed in the oral hearing may be submitted within 20 days of the 
close of the oral hearing.
    (d) The Commission, on its own motion, or in response to a request 
from a Presiding Officer other than the Commission, may use additional 
procedures, such as direct and cross-examination, or may convene a 
formal hearing under subpart G of 10 CFR part 2 on specific and 
substantial disputes of fact, necessary for the Commission's decision, 
that cannot be resolved with sufficient accuracy except in a formal 
hearing. The staff will be a party in any such formal hearing. Neither 
the Commission nor the Presiding Officer will entertain motions from 
the parties that request such special procedures or formal hearings.


Sec. 2.1323  Presentation of testimony in an oral hearing.

    (a) All direct testimony in an oral hearing shall be filed no later 
than 15 days before the hearing or as otherwise ordered or allowed 
pursuant to the provisions of Sec. 2.1322.
    (b) Written testimony will be received into evidence in exhibit 
form.
    (c) Participants may designate and present their own witnesses to 
the Presiding Officer.
    (d) Testimony for the NRC staff will be presented only by persons 
designated by the Executive Director for Operations for that purpose.
    (e) Participants and witnesses will be questioned orally or in 
writing and only by the Presiding Officer. Questions may be addressed 
to individuals or to panels of participants or witnesses.
    (f) The Presiding Officer may accept written testimony from a 
person unable to appear at the hearing, and may request him or her to 
respond to questions.
    (g) No subpoenas will be granted at the request of participants for 
attendance and testimony of participants or witnesses or the production 
of evidence.


Sec. 2.1324  Appearance in an oral hearing.

    (a) A participant may appear in a hearing on her or his own behalf 
or be represented by an authorized representative.
    (b) A person appearing shall file a written notice stating her or 
his name, address and telephone number, and if an authorized 
representative, the basis of her or his eligibility and the name and 
address of the participant on whose behalf she or he appears.
    (c) A person may be excluded from a hearing for disorderly, 
dilatory or contemptuous conduct, provided he or she is informed of the 
grounds and given an opportunity to respond.


Sec. 2.1325  Motions and requests.

    (a) Motions and requests shall be addressed to the Presiding 
Officer, and, if written, also filed with the Secretary and served on 
other participants.
    (b) Other participants may respond to the motion or request. 
Responses to written motions or requests shall be filed within 5 days 
after service unless the Commission or Presiding Officer directs 
otherwise.
    (c) The Presiding Officer may entertain motions for extension of 
time and changes in schedule in accordance with paragraphs (a) and (b) 
of this section.
    (d) When the Commission does not preside, in response to a motion 
or request, the Presiding Officer may refer a ruling or certify a 
question to the Commission for decision and notify the participants.
    (e) Unless otherwise ordered by the Commission, a motion or 
request, or the certification of a question or referral of a ruling, 
shall not stay or extend any aspect of the hearing.


Sec. 2.1326  Burden of proof.

    The applicant or the proponent of an order has the burden of proof.

[[Page 48653]]

Sec. 2.1327  Application for a stay of the effectiveness of NRC staff 
action on license transfer.

    (a) Any application for a stay of the effectiveness of the NRC 
staff's order on the license transfer application shall be filed with 
the Commission within 5 days of the issuance of the notice of staff 
action pursuant to Sec. 2.1316(a).
    (b) An application for a stay must be no longer than 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 10 days after service of an application for a stay under 
this section, any participant may file an answer supporting or opposing 
the granting of a stay. Answers must be no longer than 10 pages, 
exclusive of affidavits, and should concisely address the matters in 
paragraph (b) of this section, as appropriate. No further replies to 
answers will be entertained.
    (d) In determining whether to grant or deny an application for a 
stay, the Commission will consider
    (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.


Sec. 2.1328  Default.

    When a participant fails to act within a specified time, the 
Presiding Officer may consider that participant in default, issue an 
appropriate ruling and proceed without further notice to the defaulting 
participant.


Sec. 2.1329  Waiver of a rule or regulation.

    (a) A participant may petition that a Commission rule or regulation 
be waived with respect to the license transfer application under 
consideration.
    (b) The sole ground for a waiver shall be that, because of special 
circumstances concerning the subject of the hearing, application of a 
rule or regulation would not serve the purposes for which it was 
adopted.
    (c) Waiver petitions shall specify why application of the rule or 
regulation would not serve the purposes for which it was adopted and 
shall be supported by affidavits to the extent applicable.
    (d) Other participants may, within 10 days, file a response to a 
waiver petition.
    (e) When the Commission does not preside, the Presiding Officer 
will certify the waiver petition to the Commission, which, in response, 
will grant or deny the waiver or direct any further proceedings.


Sec. 2.1330  Reporter and transcript for an oral hearing.

    (a) A reporter designated by the Commission will record an oral 
hearing and prepare the official hearing transcript.
    (b) Except for any portions that must be protected from disclosure 
under 10 CFR 2.790, transcripts will be placed in the Public Document 
Room, and copies may be purchased from the Secretary, U.S. Nuclear 
Regulatory Commission, Washington, D.C. 20555.
    (c) Corrections of the official transcript may be made only as 
specified by the Secretary.


Sec. 2.1331  Commission action.

    (a) Upon completion of a hearing, the Commission will issue a 
written opinion including its decision on the license transfer 
application and the reasons for the decision.
    (b) The decision on the application following the hearing will be 
based on the record developed at hearing.

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

    6. 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 ll, 92 Stat. 3033-3041; 
and sec. 193, Pub. L. 101-575, 104 Stat. 2835 42 U.S.C. 2243). 
Section 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).

    7. In Sec. 51.22, a new paragraph (c)(21) is added to read as 
follows:


Sec. 51.22  Criterion for categorical exclusion; identification of 
licensing and regulatory actions eligible for categorical exclusion or 
otherwise not requiring environmental review.

* * * * *
    (c) * * *
    (21) Approvals of direct or indirect transfers of any license 
issued by NRC and any associated amendments of license required to 
reflect the approval of a direct or indirect transfer of an NRC 
license.
* * * * *
    Dated at Rockville, Maryland, this 4th day of September 1998.

    For Nuclear Regulatory Commission.
John C. Hoyle,
Secretary of the Commission.
[FR Doc. 98-24456 Filed 9-10-98; 8:45 am]
BILLING CODE 7590-01-P