[Federal Register Volume 69, Number 9 (Wednesday, January 14, 2004)]
[Rules and Regulations]
[Pages 2182-2282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-34]



[[Page 2181]]

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Part II





Nuclear Regulatory Commission





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



Changes to Adjudicatory Process; Final Rule

  Federal Register / Vol. 69, No. 9 / Wednesday, January 14, 2004 / 
Rules and Regulations  

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NUCLEAR REGULATORY COMMISSION

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

RIN 3150-AG49


Changes to Adjudicatory Process

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION: 

Contents

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

I. Background

    Among the very first actions taken by the Nuclear Regulatory 
Commission (NRC) following its creation in 1975 was an affirmation of 
the fundamental importance it attributes to public participation in the 
Commission's adjudicatory processes. Public participation, the 
Commission said, ``is a vital ingredient to the open and full 
consideration of licensing issues and in establishing public confidence 
in the sound discharge of the important duties which have been 
entrusted to us.'' N. States Power Co. (Prairie Island Nuclear 
Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975). However, 
the form and formality of the processes provided for public 
participation have long been debated, well before the NRC was 
established and well after the foregoing statement was made.
    The Commission has taken a number of steps in recent years to 
reassess its processes to identify ways in which it can conduct its 
regulatory activities more effectively. This assessment has extended 
across the full range of the NRC's programs, from its oversight and 
inspection program to evaluate and assess licensee performance, to its 
internal program management activities. One of the cornerstones of the 
NRC's regulatory approach has always been ensuring that its review 
processes and decisionmaking are open, understandable, and accessible 
to all interested parties. Its processes for achieving this goal have 
been part of the reassessment as well. Recently, steps have been taken 
to expand the opportunities for stakeholder awareness and involvement 
in NRC policy and decisionmaking through greater use of public 
workshops in rulemaking, inviting stakeholder participation in 
Commission meetings, and more extensive use of public meetings with 
interested parties on a variety of safety and regulatory matters.
    The Commission has had a longstanding concern that the adjudicatory 
(hearing) process in 10 CFR part 2, subpart G, associated with 
licensing and enforcement actions, is not as effective as it could be. 
Beginning with case-by-case actions in 1983, and with a final rule in 
1989, the Commission took steps to move away from the trial-type, 
adversarial format to resolve technical disputes with respect to its 
materials license applications. Commission experience suggested that in 
most instances, the use of the full panoply of formal, trial-like 
adjudicatory procedures in subpart G is not essential to the 
development of an adequate hearing record; yet all too frequently their 
use resulted in protracted, costly proceedings. The Commission adopted 
more informal procedures with the goals of reducing the burden of 
litigation costs, and enhancing the role of the presiding officer as a 
technical fact finder by giving him or her the primary responsibility 
for controlling the development of the hearing record beyond the 
initial submissions of the parties. A significant portion of the NRC's 
proceedings in the past ten years has been conducted under these more 
informal procedures. Although the Commission's experience to date 
indicates that some of the original objectives have been achieved, 
there have also been some aspects of the more informal procedures that 
have continued to prolong proceedings without truly enhancing the 
decisionmaking process. Given the Commission's experience, and with the 
potential in the next few years for new proceedings to consider 
applications for new facilities, to renew reactor operating licenses, 
to reflect restructuring in the electric utility industry, and to 
license waste storage facilities, the Commission concluded it needs to 
reassess its hearing processes to identify improvements that will 
result in a better use of all participants' limited resources. To that 
end, the Commission initiated certain actions related to its hearing 
processes--development of a Policy Statement on the hearing process, 
and a reexamination of the NRC's hearing process and requirements under 
the Atomic Energy Act of 1954, as amended (AEA)--as a foundation for 
possible rule changes.

A. Policy Statement

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

[[Page 2183]]

and presiding officers on methods to use, when appropriate, for 
improving the management and timely completion of proceedings. 
Statement of Policy on the Conduct of Adjudicatory Proceedings, CLI-98-
12, 48 NRC 18 (63 FR 41872; Aug. 5, 1998). The Policy Statement is an 
extension of the Commission's Statement of Policy on Conduct of 
Licensing Proceedings, CLI-81-8, 13 NRC 452 (46 FR 28533; May 27, 
1981), which provided guidance to the Atomic Safety and Licensing 
Boards (Boards) on methods to improve the timely conduct of licensing 
proceedings and ensure that hearings are fair and produce adequate 
records that support decisions made by the NRC.
    Among other things, the 1998 Policy Statement urges presiding 
officers/Licensing Boards to establish schedules for deciding issues 
before them. It also reminds presiding officers/Licensing Boards of 
their authority to set schedules, resolve discovery disputes, and take 
other action required to regulate the course of the proceedings. Case 
management by the presiding officers and Licensing Boards is an 
essential element of a fair, efficient hearing process. The Policy 
Statement also provides that the Commission may set milestones for an 
individual proceeding. If a presiding officer/Licensing Board 
determines that it would miss any milestone set by the Commission by 
more than 30 days, it is to provide the Commission with a written 
explanation of the reasons for the delay.
    The Policy Statement also sets forth the Commission's expectations 
of the parties in the proceeding. Parties are expected to adhere to the 
time frames set forth by the presiding officers/Licensing Boards. 
Petitioners are reminded, among other things, of their burden to set 
forth contentions that meet the standards of 10 CFR 2.714(b)(2) (Sec.  
2.309(f) in this final rule), and that contentions are limited by the 
nature of the application and the regulations. This guidance is 
directed to management and control of adjudicatory proceedings under 
the existing Rules of Practice. The guidance did not address more basic 
changes to the hearing process itself.

B. Reexamination of NRC's Hearing Process

    In late 1998, the NRC Office of the General Counsel (OGC) undertook 
a reexamination of the NRC's current adjudicatory practices as 
conducted under the AEA and the NRC's current regulations, as well as a 
review of the Administrative Procedure Act (APA) and the practices of 
other agencies and the federal courts, with a view to developing 
options for improving the NRC's hearing processes. This effort was 
documented in a Commission paper, SECY-99-006, January 8, 1999, that 
was made publicly available.
    As part of the analysis of possible approaches, OGC reached the 
conclusion that, except for a very limited set of hearings--those 
associated with the licensing of uranium enrichment facilities--the AEA 
did not mandate the use of a ``formal, on-the-record'' hearing within 
the meaning of the APA, 5 U.S.C. 554, 556, and 557, and that the 
Commission enjoyed substantial latitude in devising suitable hearing 
processes that would accommodate the rights of participants. In 
contrast to informal hearings for which agencies have greater 
flexibility in shaping adjudicatory procedures, ``on-the-record'' 
hearings under the APA generally resemble adversarial trial-type 
proceedings with oral presentations by witnesses and cross-examination.
    The key, statutory provision, Section 189.a. of the AEA, declares 
only that ``a hearing'' (or an opportunity for a hearing) is required 
for certain types of agency actions. It does not state that such 
hearings are to be on-the-record proceedings. Furthermore, the 
legislative history for the AEA provides no clear guidance whether 
Congress intended agency hearings to be formal, on-the-record 
hearings.\1\ As a legal matter, where Congress provides for ``a 
hearing,'' and does not specify that the adjudicatory hearings are to 
be ``on-the-record,'' or conducted as an adjudication under 5 U.S.C. 
554, 556 and 557 of the APA, it is presumed that informal hearings are 
sufficient. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 
742, 757 (1972), citing Siegel v. AEC, 400 F.2d 778, 785 (D.C. Cir. 
1968); United States v. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973). 
Significantly, these Supreme Court decisions occurred more than fifteen 
years after the period where the Atomic Energy Commission (AEC) first 
enunciated its position on the hearing requirements in Section 189.a.
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    \1\ A detailed discussion of Section 189 and its legislative 
history can be found in the Commission's decision in Kerr McGee 
Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 NRC 232 
(1982). See also Advanced Med. Sys., Inc., ALAB-929, 31 NRC 271, 
279-288 (1990).
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    The AEC of the 1950s asserted that formal hearings were required by 
Section 189.a. At that time, the AEC saw benefits in a highly formal 
process, resembling a judicial trial, for deciding applications to 
construct and operate nuclear power plants. It was thought that the 
panoply of features attending a trial--parties, sworn testimony, and 
cross-examination--would lead to a more satisfactory resolution of the 
complex issues affecting the public health and safety and would build 
public confidence in the AEC's decisions and thus in the safety of 
nuclear power plants licensed by the AEC. One study concluded that the 
use of formal hearings developed in order to address concerns that the 
pressures of promotion by the AEC could have an undue influence on the 
AEC's assessment of safety issues. By use of an expanded hearing 
process, the Commission could more fully defend the objectivity of its 
licensing actions. See William H. Berman and Lee M. Hydeman, The Atomic 
Energy Commission and Regulating Nuclear Facilities (1961), reprinted 
in 2 Improving the AEC Regulatory Process, Joint Comm. on Atomic 
Energy, 87th Cong., at 488 (1st Sess. 1961). Thus, notwithstanding the 
lack of explicit language in the statute or clear direction in the 
legislative history for the 1954 AEA regarding the use of formal, on-
the-record hearings, AEC took the official position that on-the-record 
hearings were not merely permissible under the AEA but required. AEC 
Regulatory Problems: Hearings before the Subcommittee on Legislation, 
Joint Committee on Atomic Energy, 87th Cong., at 60 (2d Sess. 1962) 
(Letter of AEC Commissioner Loren K. Olsen). However, as mentioned 
above, the AEC's determination in this regard was not informed by the 
subsequent Supreme Court decisions in Allegheny-Ludlum Steel Corp. and 
Florida East Coast Railway Co. The Commission believes, in light of the 
principles enunciated by the Supreme Court in these two decisions, that 
the better interpretation of Section 189.a. is that formal, on-the-
record hearings are not required by that section.
    However, it has been argued that two subsequent amendments to the 
AEA, both of which involve clauses beginning with the word 
``notwithstanding,'' should be read as confirming Congress's 
understanding that on-the-record adjudications are required by Section 
189.a. of the 1954 Act. The first occurred in 1962, when Congress 
amended the AEA to add a new Section 191, authorizing the use of three-
member Licensing Boards rather than hearing examiners, 
``notwithstanding'' certain provisions of the APA. Because those 
referenced APA provisions dealt with formal, on-the-record 
adjudication, the ``notwithstanding'' clause in the statute could be 
read (and by some, is read) to imply that, by 1962, Congress viewed the 
Atomic Energy Act as

[[Page 2184]]

requiring on-the-record adjudication. The crux of the argument is that 
the ``notwithstanding'' clause would have been unnecessary if an on-
the-record adjudication was not mandatory.
    In 1978, ``notwithstanding'' made its second appearance. In that 
year, Congress enacted the Nuclear Non-Proliferation Act (NNPA), which 
provided among other things for the NRC to establish procedures for 
``such public hearings [on nuclear export licenses] as the Commission 
deems appropriate.'' NNPA section 304, 42 U.S.C. 2155a(a). The statute 
said that this provision was the exclusive legal basis for any hearings 
on nuclear export licenses, adding: ``[N]otwithstanding section 189a. 
of the 1954 Act, [this] shall not require the Commission to grant any 
person an on-the-record hearing in such a proceeding.'' 42 U.S.C. 
2155a(b). Again, the argument is that the ``notwithstanding'' clause 
would be unnecessary unless Congress thought on-the-record formal 
hearings would be called for by Section 189 of the AEA.
    These two subsequent statutes do not explicitly declare the intent 
of the 1954 AEA, nor do they explicitly require the use of on-the-
record procedures in agency proceedings--in fact, they do the opposite. 
Furthermore, the legislative history accompanying both statutes 
strongly suggests that rather than agreeing with the Commission's early 
interpretation of Section 189.a. of the 1954 AEA, the Congresses took 
the position that the Commission had latitude under the existing 
language of Section 189.a. to use informal hearing procedures.\2\ Seen 
in this light, the most plausible explanation for the 
``notwithstanding'' clauses, in the Commission's view, is that they 
were intended not as a means to overcome what were viewed as fatal 
legal impediments, but rather, to counter and eliminate potential legal 
objections to the use of informal hearing procedures that may be raised 
by the Commission. It would have been only prudent of the drafters to 
eliminate ambiguity on this point when enacting additional provisions, 
even if they had been convinced that the clauses were unnecessary, 
given the Commission's insistence that Section 189.a. required on-the-
record adjudications.
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    \2\ See, e.g., H.R. Rep. No. 87-1966, at 6 (1962), quoted in 
Kerr McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982).
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    In any event, the Commission believes that to focus on Congress's 
thought processes in 1962, when it enacted Section 191 of the AEA, and 
in 1978, when it passed the NNPA, runs the risk of losing sight of what 
any reviewing court interested in legislative intent would regard as 
the central question, which is what Congress intended in 1954, when it 
enacted Section 189.a. of the AEA. And, as discussed earlier, the 
Commission now believes that in 1954 Congress did not intend Section 
189.a. hearings to be formal, on-the-record adjudications.
    For many years, the NRC did not depart from the longstanding 
assumption that the AEA requires on-the-record hearings despite the 
fact that this assumption had never been reduced to a definitive 
holding. Also, consistent with its understanding of Section 189.a., in 
1978 the NRC declared that the hearing it would hold on an application 
to construct and operate a nuclear waste repository for high-level 
waste (HLW) would be a formal hearing. In a final rule (46 FR 13971; 
Feb. 25, 1981) now codified at 10 CFR part 2, Subpart J, the Commission 
provided for a mandatory formal hearing at the construction 
authorization stage and for an opportunity for a formal hearing before 
authorizing receipt and possession of HLW at a geologic repository. 
Subsequently, Congress enacted the Nuclear Waste Policy Act of 1982, 42 
U.S.C. 10101 et seq. That law includes no specific hearing 
requirements. Instead, it seems to contemplate, at Section 114, that 
the NRC will apply existing laws applicable to the construction and 
operation of nuclear facilities. In sum, there is no statutory 
requirement for a formal hearing on a HLW repository, but without a 
rule change, the NRC's regulations would require a formal hearing. In 
1990, Congress also provided that for the licensing of a uranium 
enrichment facility, the NRC ``shall conduct a single adjudicatory 
hearing on-the-record.'' \3\ This provision can be interpreted in one 
of two ways: either as one more reflection of Congress's understanding 
that formal adjudication was the norm in NRC facility licensing 
proceedings, or as the very opposite, i.e., as showing that Congress 
understood that because of the presumption against formal hearings, 
explicit statutory language would be needed to make proceedings for 
this type of facility ``on-the-record,'' as that term is used in the 
APA.
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    \3\ Atomic Energy Act of 1954, as amended, Section 193, 42 
U.S.C. 2243.
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    In the decades since passage of the AEA, debate over the value of 
on-the-record adjudication for the resolution of nuclear licensing 
issues, and indeed for resolving scientific issues generally, has 
continued. There are now many observers who are skeptical that the use 
of formal adjudication in NRC licensing cases is the appropriate means 
to settle a regulatory issue; that whatever validity there may have 
been to the arguments for formal adjudication from the 1950s to the 
1970s, they no longer have merit; and that fewer formalized proceedings 
could mean not only greater efficiency, but also better decisions, with 
more meaningful public participation and greater public acceptance of 
the result. See, e.g., Improving Regulation of Safety at DOE Nuclear 
Facilities, Final Report of the Advisory Committee on External 
Regulation of DOE Nuclear Safety, at 39 (Dec. 1995).
    However, because of the early interpretation that formal, on-the-
record hearings under subpart G were required, as well as NRC's long-
standing practice of conducting hearings on reactor licensing actions 
under subpart G, each time that NRC has explored ways of expanding the 
use of more informal hearing procedures, it has had to confront its own 
prior statements and actions on the subject. Even so, no court has 
rendered a definitive holding on the application of the APA's ``on-the-
record'' hearing requirements to AEA proceedings. Indeed, while some 
court decisions reflected the agency's early assumption that ``on-the-
record'' hearings were required, other decisions did not. Compare Union 
of Concerned Scientists v. NRC, 735 F.2d 1437, 1444 n.12 (DC Cir. 
1984), cert. denied, 469 U.S. 1132 (1984) [UCS I] (``there is much to 
suggest that the Administrative Procedure Act's (APA) `on-the-record' 
procedures * * * apply [to section 189]'') with Union of Concerned 
Scientists v. NRC, 920 F.2d 50, 53 n.3 (DC Cir. 1990) (``it is an open 
question whether Section 189(a)--which mandates only that a `hearing' 
be held and does not provide that such hearing be held `on-the-
record'--nonetheless requires the NRC to employ in a licensing hearing 
procedures designated by the [APA] for formal adjudications''). The 
commentary in these and other cases is essentially dicta--observations 
not essential to the court's decision. See also Siegel v. AEC, 400 F.2d 
778, 785 (DC Cir. 1968)(deciding only permissibility of informal 
rulemaking procedures under section 189); Porter County Chapter of the 
Izaak Walton League v. NRC, 606 F.2d 1363, 1368 (DC Cir. 1979) 
(deciding only NRC's discretion to initiate enforcement proceedings 
subject to Section 189 hearing); City of West Chicago v. NRC, 701 F.2d 
632, 642 (7th Cir. 1983) (deciding only permissibility of informal 
procedures in materials licensing adjudication).

[[Page 2185]]

    In Chemical Waste Management v. EPA, 873 F.2d 1477, 1480 (DC Cir. 
1989), the DC Circuit stated that while the presence of the words ``on-
the-record'' is not absolutely essential in order to find that formal 
adjudicatory hearings are required, there must be, in the absence of 
those words or similar language, evidence of ``exceptional 
circumstances'' demonstrating that Congress intended to require the use 
of formal adjudicatory procedures. Although the court suggested, again 
in dicta, that Section 189.a of the AEA might be a case where 
``exceptional circumstances'' dictate formal, on-the-record hearing 
requirements, that observation has its roots in a dictum in UCS I which 
suggests that in 1961 ``the AEC specifically requested Congress to 
relieve it of its burden of `on-the-record' adjudications under section 
189(a)'' and Congress did not do so. 735 F.2d at 1444 n.12. The 
opposite is more nearly correct: The AEC argued in favor of formal 
procedures and the Joint Committee on Atomic Energy advised that 
informal procedures were permissible. See H.R. Rep. No. 87-1966, at 6 
(1962), quoted in Kerr McGee Corp., CLI-82-2, 15 NRC 232, 251 (1982). 
More recently, in Kelley v. Selin, 42 F.3d 1501, 1511-12 (6th Cir.), 
cert. denied, 515 U.S. 1159 (1995), the court emphasized the NRC's 
latitude to determine the nature of the ``hearing'' mandated by the 
AEA.
    The Commission's approach to expanding the use of more informal 
hearing procedures has been cautious, taking place in slow, incremental 
steps. One such step came in 1982, when the Commission, in the West 
Chicago case, granted an informal hearing (i.e., written submissions 
only) on an amendment to a materials license. In doing so, it observed 
that the AEA did not specifically require on-the-record hearings, and 
it called the legislative history ``unilluminating'' as to Congress's 
intent in materials licensing cases. The Commission noted that while it 
held formal hearings in all reactor licensing cases, it had not stated 
explicitly whether it did so as a matter of discretion or of statutory 
requirement. In any event, it did not view the AEA as mandating an on-
the-record hearing in every licensing case. This decision was upheld by 
a reviewing court. City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 
1983). Subsequently, the NRC issued a new subpart L to part 2, setting 
forth procedures for holding informal proceedings on all materials 
license applications and amendments (54 FR 8276; Feb. 28, 1989). In 
Section 134 of the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10154, 
Congress specified a set of hybrid procedures for licensing expansions 
of spent fuel storage capacity at reactor sites. The process called for 
written submissions, oral argument, and an adjudicatory hearing only 
after specific findings by the Commission. The Commission promulgated 
procedures--10 CFR part 2, subpart K (50 FR 41670; Oct. 15, 1985)--to 
implement this legislation.
    The West Chicago court's finding that formal hearings were not 
required for materials licenses opened the door considerably wider for 
the argument that formal hearings are not necessarily required in 
reactor licensing cases. The provision of the AEA that establishes the 
basic statutory entitlement to a ``hearing'' does not distinguish 
between reactor licenses and materials licenses. The first significant 
move toward deformalization of reactor licensing cases came in 1989, 
when the NRC completed what a reviewing court described as a ``bold and 
creative'' effort to foster standardization of nuclear power plant 
designs, as well as the early resolution of key safety issues. This was 
the issuance of a new 10 CFR part 52, which provided for issuance of 
design certifications and ``combined licenses'' for construction and 
operation of nuclear power plants (54 FR 15386; Apr. 18, 1989). The 
rule provided that standard designs could be approved by rulemaking, 
with an opportunity for an informal hearing conducted by an Atomic 
Safety and Licensing Board (this would be a ``paper'' hearing, unless 
the Licensing Board requested the authority to conduct a ``live''--that 
is, oral--hearing, and the Commission agreed). Subpart G formal 
hearings would be offered thereafter, before the issuance of the 
combined construction permit/operating license for a specific facility. 
When the facility was essentially complete and close to fuel loading 
and criticality, there would be an opportunity for members of the 
public to raise any concerns they might have about plant operation. 
These could fall into one of two categories: Either a claim that the 
facility as built did not meet the ``acceptance criteria'' specified in 
the original combined construction permit/operating license, or a claim 
that the acceptance criteria themselves (that is, the licensing 
requirements) were deficient. For claims in the former category, the 
Commission would determine whether to hold a hearing and whether it 
would be a formal or informal hearing. A request to modify the terms of 
a combined license would be handled as a request for action under 10 
CFR 2.206.
    Part 52 was promptly challenged after its promulgation. A panel of 
the U.S. Court of Appeals for the DC Circuit issued a decision that 
upheld some parts of the rule but set aside others, including the 
provisions governing the opportunities for a hearing after completion 
of construction and before operation. Nuclear Info. & Res. Serv. v. 
NRC, 918 F.2d 189 (DC Cir. 1990), vacated & rehearing en banc granted, 
928 F.2d 465 (DC Cir. 1991). However, the decision was later vacated by 
the entire DC Circuit, sitting en banc. Nuclear Information and 
Resource Service v. NRC, 969 F.2d 1169 (DC Cir. 1992). In its brief to 
the full court, the NRC argued unequivocally that AEA's hearing 
requirement for nuclear power plant licensing did not necessarily mean 
a formal hearing.
    The full court upheld part 52 in its entirety. However, on the 
question of whether hearings must be formal, it reserved judgment on 
the grounds that the NRC's argument that informal hearings were 
permissible had not been made in the rulemaking or before the original 
panel. 969 F.2d at 1180.
    The Commission has taken two more steps to further stake out its 
position that the AEA does not require formal hearings. The first was a 
rulemaking implementing the Equal Access to Justice Act (EAJA), 5 
U.S.C. 504. This statute authorizes the recovery of attorneys' fees by 
certain ``prevailing'' parties in ``adversary adjudications.'' The term 
``adversary adjudication'' is defined in 5 U.S.C. 504(b)(1)(C) to 
generally mean, for purposes of the EAJA, adjudications conducted under 
5 U.S.C. 554, the section of the APA applicable to adjudications 
required by statute to be determined on-the-record after the 
opportunity for an agency hearing. ``Adversary adjudications'' do not 
include adjudications to consider the grant or renewal of a license.
    The NRC decided to authorize the payment of attorneys' fees only 
for adjudications under the Program Fraud Civil Remedies Act, which by 
law must be on-the-record, on the grounds that no other NRC 
adjudications (other than those for the licensing of uranium enrichment 
facilities under Section 193) must by law be on-the-record. 10 CFR part 
12 (59 FR 23121; May 5, 1994). To date, no lawsuit has been filed 
challenging this determination. The second and more significant step 
was the recent promulgation of subpart M to part 2 (63 FR 66730; Dec. 
3, 1998), to cover transfers of licenses, including those for power 
reactors. Here again, the rule did not provide for formal proceedings.

[[Page 2186]]

    In a Staff Requirements Memorandum issued on July 22, 1999 (which 
is available to the public), the Commission directed OGC to develop a 
proposed rulemaking. The Commission also indicated that it would pursue 
legislation to confirm NRC's discretion to structure its procedures as 
it deemed necessary to carry out its responsibilities. The Commission 
further directed that the views of external stakeholders be obtained. 
In response, on October 26-27, 1999, OGC conducted a facilitated public 
meeting with stakeholders representing the industry, citizen groups, 
another Federal agency, academia, and the NRC's Atomic Safety and 
Licensing Board Panel. The transcribed views of all participants are 
publicly available. In addition to the broad issue of the degree of 
formality or informality of the hearing process, the issues addressed 
at this meeting encompassed matters such as requirements for standing, 
contentions, discovery, cross-examination, summary disposition, hearing 
schedules and time limits, the role of the presiding officer, and the 
number of different hearing ``tracks'' that might be appropriate, all 
having been raised directly or indirectly in SECY-99-006. The comments 
at this meeting are described below and have been considered in this 
rulemaking.

C. Comments on Policy Statement

    The NRC received a number of public comments on its 1998 Policy 
Statement on the conduct of adjudicatory proceedings (63 FR 41872; Aug. 
5, 1998). The NRC is taking this opportunity to address those comments 
as part of this final rulemaking.
    Eleven sets of comments were received on the Policy Statement. Some 
of the comments came from persons who represented the views of several 
other named persons. Two of the sets of comments opposed the Policy 
Statement; the remaining nine generally supported the Policy Statement.
    Comment. The Policy Statement and its suggestions for expedited 
proceedings that allow delays only in extreme and unavoidable 
circumstances is unfair, inconsistent with due process, violates the 
Administrative Procedure Act (APA), and emphasizes licensing over 
health and safety concerns. Expedited schedules are not necessary for 
nuclear power plant license renewal proceedings. Expedited schedules 
may not be reasonable for hearings with complex issues. An expedited 
hearing schedule is harmful to intervener groups who need more time due 
to their lack of funding.
    Response. The NRC is unaware of any judicial decision that holds 
that the type of hearing procedures being proposed in the Policy 
Statement guidance violates due process or the APA. In fact, the Policy 
Statement recognizes that there is a need to balance efforts to avoid 
delay with procedures that will ensure fair and reasonable time frames 
for taking action in the adjudication. The Commission believes that the 
guidance in the Policy Statement strikes a proper balance among all 
these considerations. The Commission also believes that providing more 
effective hearing processes will result in a better use of all 
participants' limited resources.
    Comment. Contrary to statements made in the Policy Statement, 
Licensing Boards do not have total discretion to set schedules in 
proceedings. For example, Licensing Boards must allow contentions to be 
filed anytime up to 15 days before the prehearing conference, and a 
board may not shorten this time.
    Response. Under the Commission's existing procedures, as carried 
forward into this final rule, Sec.  2.319 of the final rule (formerly 
Sec.  2.718) provides the presiding officer the power to regulate the 
course of the proceeding. In addition, under Sec.  2.307 of the final 
rule (formerly Sec.  2.711) a presiding officer may shorten or lengthen 
the time required for filings for good cause. This provision expressly 
allows a presiding officer to set deadlines for filings, such as the 
filing of contentions.
    Comment. Multiple Licensing Boards should not be used because it 
could be too burdensome for intervener groups with limited resources.
    Response. The Commission recognizes that, in some instances, the 
use of multiple Licensing Boards to address multiple separate issues in 
a single proceeding can place a burden on all parties. For that reason, 
the NRC is careful to consider and account for the circumstances of 
each case and to ensure that the use of multiple boards will not 
prejudice any party. However, it is important to have flexibility to 
use multiple boards where it will not prejudice any party, as the use 
of more than one board can allow the effective litigation and 
resolution of a number of separate issues resulting in a more timely 
completion of the record and decision for the whole case.
    Comment. The guidelines set forth in the Policy Statement should be 
codified through a rulemaking.
    Response. The Commission is codifying appropriate portions of the 
Policy Statement in this rulemaking. Because the Policy Statement deals 
primarily with case management and control, it may not be appropriate 
to convert everything in the Policy Statement to hard and fast 
requirements. The Commission believes that it is important to retain 
flexibility to manage proceedings as the situation warrants.
    Comment. A Licensing Board should be able to raise any safety issue 
that is material to health and safety, regardless of whether it is a 
substantial issue.
    Response. If a presiding officer (including a Licensing Board) 
determines in the course of a hearing that a safety issue exists that 
has not been raised by a party, it may refer the matter to the 
Commission with a recommendation on how the issue should be addressed 
under Sec.  2.340(a) of the final rule. Some issues raised by a 
presiding officer sua sponte may be addressed appropriately through 
adjudications, while others may not. In fact, the Commission has a 
process for considering the presiding officer's recommendation on sua 
sponte issues and that process can result in the issues being 
considered in the adjudication or being referred to the NRC staff for 
review and resolution without litigation. This final rule does not 
represent a significant departure from its longstanding regulation, 10 
CFR 2.760a (now codified in this final rule at Sec.  2.340).
    Comment. The Commission's suggestion that the Licensing Boards 
limit the use of summary disposition motions goes too far.
    Response. There are appropriate times for filing summary 
disposition motions. There may be times in the proceeding where these 
motions should not be entertained because consideration of the motions 
would unduly delay or complicate proceedings by distracting responding 
parties from addressing other pending issues or distracting other 
parties and the presiding officer from their preparation for a 
scheduled hearing. Moreover, there may be situations in which the time 
required to consider summary disposition motions and responses and to 
issue a ruling on these motions will substantially exceed the time 
needed to complete the hearing and record on the issues. The presiding 
officer (including a Licensing Board) is in a good position to 
determine when the use of summary disposition would be appropriate and 
would not delay the ultimate resolution of issues and the Commission 
will provide presiding officers the flexibility to make that 
determination in most proceedings. To further ensure that summary 
disposition motions are filed and ruled upon in a timely manner that 
does not detract from preparation for the oral hearing, the Commission 
is adopting in Sec.  2.710 of the final rule additional requirements on 
the timing, consideration, and

[[Page 2187]]

decisions on summary disposition motions.
    Comment. The limitation of discovery on the NRC staff until after 
the Safety Evaluation Report (SER) and final Environmental Impact 
Statement (EIS) is overly broad and could delay the proceeding.
    Response. The most fruitful time for discovery of NRC staff review 
documents is after the staff has developed its position. Subjecting the 
NRC staff to extensive discovery early in the process will often 
require the staff to divert its resources from completing its review. 
In addition, early discovery before the NRC staff has finalized the 
major part of its reviews may present a misleading impression of staff 
views. Finally, a focus on discovery against the NRC staff diverts the 
focus from the real issues in a licensing proceeding, which should be 
the adequacy of the applicant's/licensee's proposal. Nevertheless, the 
Commission recognizes the importance of timely completion of the NRC 
staff's reviews and the staff is making a concerted effort at rigorous 
planning and scheduling of staff reviews. In this regard, the NRC staff 
has continued to refine and complete its standard review plans and its 
review guidance, and has moved to a more performance-goal oriented 
approach in an effort to improve the timeliness of its reviews. 
Steering and oversight committees are sometimes formed to direct the 
course of major technical review efforts and detailed milestone 
schedules are developed and tracked. NRC managers and staff are held 
accountable for these schedules. The NRC will continue with these 
efforts to improve the timeliness of licensing reviews.
    Comment. The hearing should not be delayed until after the SER and 
the final EIS are issued as it could delay the proceedings.
    Response. In proceedings where the NRC staff is a party, the staff 
may not be in a position to provide testimony or take a final position 
on some issues until these documents have been completed. This may be 
the case in particular with regard to the NRC staff's environmental 
evaluation, less so with regard to the staff's safety evaluation. In 
many cases, it could be unproductive and cumbersome to have a two-
pronged hearing with one part of the hearing being conducted before 
issuance of the NRC staff documents and a second hearing after issuance 
of the documents.
    Nonetheless, the Commission recognizes that where the NRC staff is 
a party, the staff could prepare testimony and evidence, and take a 
final position on contested matters if its safety review has been 
completed in areas relevant to the contested matters. The Commission 
also recognizes that the current regulations governing submission of 
the SER and/or EIS are not clear and could be misleading. To address 
these matters, the Commission is taking a number of actions which are 
described below in II.A.2.(f) in the discussion of Sec.  2.337.
    Comment. Licensing Boards should rule on standing before the 
submission of contentions.
    Response. The Commission expects that standing issues would be 
among the first issues addressed by a presiding officer in an 
adjudication, but that does not dictate that the submission of 
contentions should be delayed. The Commission also expects that 
concrete issues of concern to the public would be raised on the basis 
of the application or the proposal for NRC action and can be identified 
at the same time the petition addresses the matter of standing.
    Comment. The Commission should apply the Federal Rules of Evidence 
with respect to scientific testimony.
    Response. Neither this final rule nor the superseded provisions of 
part 2 contain a special provision for scientific testimony. Scientific 
testimony can be tested and evaluated in the same manner as other 
evidence presented at a hearing. Although the Commission has not 
required the application of the Federal Rules of Evidence in NRC 
adjudicatory proceedings, presiding officers and Licensing Boards have 
always looked to the Federal Rules for guidance in appropriate 
circumstances. The Commission continues to believe that greater 
informality and flexibility in the presentation of evidence in 
hearings, rather than the inflexible use of the formal rules of 
evidence imposed in the Federal courts, can result in more effective 
and efficient issue resolution.
    Comment. The Commission should place limitations on cross-
examination.
    Response. The final rule does place limitations on cross-
examination for the less formal procedures. Under these procedures, the 
presiding officer may question witnesses who testify at the hearing, 
but parties normally may not do so. However, parties may submit to the 
presiding officer written suggestions for questions to be asked. The 
final rule also allows motions to the presiding officer to allow cross-
examination by the parties where the party believes this would be 
necessary to develop an adequate record. As a general matter, the 
presiding officer may limit and control cross-examination in 
appropriate circumstances, under Sec.  2.333 of the final rule. Among 
other things, the final rule requires the filing and use of cross-
examination plans whenever a party cross-examines witnesses.
    Comment. The Commission should be actively involved in overseeing 
proceedings and there should be expedited interlocutory review for 
novel legal or policy issues.
    Response. Providing for a Commission ruling on significant issues 
before the hearing is completed can focus the issues to be addressed in 
a hearing, and the final rule provides for presiding officer 
certification of novel legal or policy issues to the Commission. 
However, the Commission believes that the additional delay necessarily 
associated with interlocutory appeals by parties outweighs any 
potential reduction in hearing time that may come about through a 
Commission decision in such an appeal, unless a party seeking 
interlocutory review can also demonstrate that it would be threatened 
with immediate and serious irreparable harm, or if the basic structure 
of the proceeding would be affected in a pervasive or unusual manner. 
Accordingly, the Commission has decided that it should not depart from 
existing practice by permitting interlocutory appeals by parties based 
solely on the existence of novel legal or policy issues.
    Comment. The Commission should actively review the performance of 
Licensing Boards and ensure that boards make prompt decisions.
    Response. The Commission has been carefully monitoring all 
adjudicatory proceedings to ensure that they are being appropriately 
managed to avoid unnecessary delay. The Commission, through its Policy 
Statements and case-specific orders, has been encouraging presiding 
officers (including Licensing Boards) to issue timely decisions 
consistent with presiding officers' independent decisionmaking 
functions. Section 2.334(b) of the final rule explicitly addresses case 
management and would require the presiding officers to notify the 
Commission when there is non-trivial delay in completion of the 
proceeding. The Commission wishes to emphasize, however, that the 
Commission's oversight of presiding officers with respect to case 
management is not intended to intrude on the independence of presiding 
officers in discharging their decisionmaking responsibilities.

D. Comments From Hearing Process Workshop

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

[[Page 2188]]

groups, the academic community, administrative judge community, and the 
NRC. Transcripts from the workshop are available in NRC's Public 
Document Room, and are available for download on the NRC Web Page, at 
http://ruleforum.llnl.gov/cgi-bin/library?source=*&library=CAP_PRULE_lib&file=*. The major comments and the Commission's responses 
follow.
    Comment. In general, the public citizen group participants 
questioned whether there was a need to make any changes to the current 
hearing procedures. They also voiced concerns about any limitations on 
current discovery and cross-examination. Industry representatives 
advocated changes to the hearing process, which they viewed as becoming 
increasingly and needlessly time consuming.
    Response. The Commission believes that there is a need to take some 
action to improve the management of the adjudicatory process to avoid 
needless delay and unproductive litigation. Using less formal hearing 
processes with simplified procedures for most types of proceedings 
along with a requirement for well-supported specific contentions in all 
cases can improve NRC hearings, limit unproductive litigation, and at 
the same time ease the burdens in hearing preparation and participation 
for all participants.
    In the final rule, well-supported, specific contentions will be 
required in all proceedings, just as they are now required under the 
Commission's formal hearing procedures. See Sec.  2.309(f). Petitioners 
generally have been able to meet the current specific contention 
requirements and the Commission would not expect the application of 
those requirements to informal proceedings to adversely affect public 
participation. Indeed, by focusing litigation efforts on specific and 
well-defined issues, all parties will be relieved of the burden of 
having to develop evidence and prepare a case to address possibly wide-
ranging, vague, undefined issues.
    Under the final rule, early document disclosure and witness 
identification will be required of all parties (except the NRC staff) 
in every case. See Sec. Sec.  2.336, 2.704. In proceedings using 
hearing procedures other than Subparts G and J, no other discovery 
would be permitted. This approach should reduce the burden on public 
participants because petitioners would be given access to pertinent 
information without the need to file formal discovery requests, and 
would not be burdened with responding to formal discovery requests. In 
Subparts G, L, and N, the NRC staff is required to prepare a hearing 
file. In Subpart J proceedings, the NRC staff is required to maintain 
an electronic docket, and all potential parties are required to 
participate in the Licensing Support Network (LSN), which will afford 
access to all relevant documents. In sum, the Commission believes that 
in all hearing tracks the parties will have sufficient information 
available to prepare their cases.
    Under the final rule, cross-examination is retained for Subpart G 
hearings. By contrast, in informal hearings, only the presiding officer 
will question witnesses. Nevertheless, the informal procedures allow 
the parties to suggest questions for the presiding officer to ask, and 
they permit motions to allow the parties themselves to cross-examine 
witnesses. The presiding officer may grant the motion if he or she 
believes that such cross-examination is necessary to develop an 
adequate record for decision. This should ensure that there is 
questioning of witnesses sufficient to develop an adequate record. 
However, the Commission expects that the use of cross-examination in 
Subparts L, M or N proceedings will be rare.
    Comment. Some participants raised concerns regarding case 
management practices by the Licensing Boards. One concern was the 
perceived lack of control by presiding officers in some informal and 
formal proceedings. According to these participants, in informal 
proceedings, presiding officers too often allow pleadings to be amended 
or allow an unlimited number of reply briefs. Nuclear industry 
participants stated that discovery in formal proceedings takes too 
long, that the NRC staff requires too much time to issue a Final 
Environmental Impact Statement (FES) and Safety Evaluation Report 
(SER), and that the presiding officer/board takes too long to issue an 
initial decision.
    Response. Strong case management is an integral part of an 
efficient and effective hearing process. The Commission expects 
presiding officers/boards to manage all adjudications carefully and 
attentively. Tools to be used to this end are reflected in the final 
rule. The Commission has modified the intervention requirements in 
Subpart L to require the submission of specific, well-supported 
contentions as is currently required for hearings held under Subpart G. 
This should result in hearings that focus on well-defined issues and 
obviate the need to receive evidence of questionable relevance. The 
Commission also modified the less formal hearing procedures in Part 2 
in a manner that should reduce the amount of motion practice over what 
hearing procedures to use. As noted earlier, the Commission is also 
taking a number of actions (described below in II.A.2.(f) in the 
discussion of Sec.  2.337) to ensure timely preparation of NRC staff 
testimony and evidence, and to clarify the NRC documents which must be 
admitted into evidence in different proceedings conducted under Part 2.
    Comment: One of the attributes of the current formal process is 
cross-examination of witnesses. Nuclear industry participants urged 
that cross-examination not be used as it is often not an effective or 
efficient way to determine the validity of any particular matter. 
However, citizen group participants argued that cross-examination is 
effective and oppose any elimination of this tool. Some nuclear 
industry participants argued that cross-examination should only be an 
optional tool that can be used if it is determined that it is 
necessary. These representatives also asserted that cross-examination 
must be used in enforcement hearings. Other licensee representatives 
suggested that certain proceedings such as those involving license 
applications for activities posing low risk from a public health and 
safety perspective, should not use cross-examination. Citizen group 
participants pointed out that there may not be agreement as to which 
proceedings involve ``low risk'' activities.
    Response. The final rule provides for cross-examination by the 
parties in proceedings that warrant the use of Subpart G hearing 
procedures. Other NRC proceedings will utilize less formal procedures 
that do not include cross-examination by the parties unless ordered by 
the presiding officer or the Commission in a particular case. See 
Sec. Sec.  2.1207, 2.1204(b), 2.1405, 2.1402(c). Nonetheless, these 
latter proceedings involve questioning of witnesses by the presiding 
officer in response to lines of questioning proposed by parties, and 
cross-examination by the parties themselves only where the presiding 
officer determines that it is necessary to develop an adequate record 
for decision. The Commission believes that this approach strikes an 
appropriate balance in the use of cross-examination, and is consistent 
with the requirements of the Administrative Procedure Act (APA), which 
does not require cross-examination for on-the-record proceedings unless 
necessary for a ``fair and true disclosure of the facts.'' 5 U.S.C. 
556(d).
    Comment. Another attribute of the current formal proceedings is 
discovery. The representatives of citizen groups view discovery as 
essential because they do not have access to all of the

[[Page 2189]]

information that licensees and the NRC staff do and they perceive this 
as a disadvantage early in the proceedings. Citizen group 
representatives also noted ready access to information can be 
frustrated by the fact that the application may be incomplete and is 
supplemented through the NRC staff's requests for additional 
information (RAI). In response to the citizen group representatives' 
concerns, the nuclear industry representatives suggested that 
interested parties should attend staff-applicant meetings that take 
place before the submission of an application. Citizen group 
representatives suggested that interested individuals should be 
permitted to participate in these meetings instead of just observing. 
One option suggested by the administrative judge participant was that 
the NRC model its discovery rules on Rule 26 of the Federal Rules of 
Civil Procedure.
    Response. The final rule provides that in all adjudicatory 
proceedings (whether formal or informal), the parties must exchange 
relevant documents and other information at the beginning of the 
proceeding. See Sec. Sec.  2.336, 2.704. Parties other than NRC staff 
are also required to exchange the identity of expert witnesses,\4\ as 
well as existing reports of their opinions. The ``mandatory 
disclosure'' concept is expanded in subpart J by requiring the NRC and 
potential parties to disclose pertinent documents by participating in 
the ``Licensing Support Network'' (LSN) before an application is filed. 
In addition, under subparts G, L, and N the NRC staff is required to 
prepare, make available, and update a ``hearing file'' consisting of 
the application and any amendments, NRC safety and environmental 
reports relating to the application, and any correspondence between the 
NRC and the applicant that is relevant to the application. A parallel 
concept is provided in subpart J by the requirement for the NRC staff 
to maintain an ``electronic docket.'' Thus, the mandatory disclosure 
requirement in subpart C, the hearing file provision in subparts G, L, 
and N the requirement for an LSN and ``electronic docket'' in subpart 
J, go well beyond the ``discovery'' provisions for full, on-the-record 
adjudicatory hearings under the APA. See 5 U.S.C. 554 and 556(c). 
Moreover, formal discovery tools, e.g., interrogatories and 
depositions, remain for proceedings conducted under subparts G and J. 
See, e.g., Sec. Sec.  2.702 through 2.709 (subpart G), Sec.  2.1000 
(subpart J).
---------------------------------------------------------------------------

    \4\ Although in proceedings other than those under Subparts G 
and J, no further discovery will be permitted after the required 
disclosures, the identity of expert witnesses will allow the parties 
to conduct research on, and formulate challenges to the expertise 
and credibility of the identified witnesses.
---------------------------------------------------------------------------

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

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

    In sum, the Commission believes that its current policy on public 
meetings, broad public access to information, mandatory disclosures 
under Subpart C, the requirement for a hearing file under Subparts G, L 
and N, the requirement for an LSN and ``electronic docket'' under 
Subpart J, and the availability of the full panoply of formal, trial-
like discovery under Subpart G, together constitute a system for 
discovery which is tailored to the regulatory and licensing matters 
which must be resolved in NRC adjudicatory proceedings.
    Comment. The representatives of citizen groups and local 
governments argued that the rules for standing should be liberalized. 
These participants noted that NRC proceedings require much time and 
money and are not undertaken lightly.
    Response. Members of the public who have an interest that will be 
affected by a proposed action should be readily able to establish their 
standing under the standards in the final rule. At the same time, the 
Commission recognizes that there may be instances where persons who do 
not have a direct interest and cannot demonstrate standing nevertheless 
are able to make a substantial contribution to the development of the 
record in the proceeding. Accordingly, the Commission is codifying the 
six criteria for discretionary intervention which were first 
articulated in Portland General Electric Co. (Pebble Springs Nuclear 
Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 617 (1976): (1) The extent 
to which the requestor's/petitioner's participation may reasonably be 
expected to assist in developing a sound record; (2) the nature and 
extent of the requestor's/petitioner's property, financial or other 
interests in the proceeding; (3) the possible effect of any decision or 
order that may be issued in the proceeding on the requestor's/
petitioner's interests; (4) the availability of other means for 
protecting the interests of the requestor/petitioner; (5) the extent to 
which the requestor's/petitioner's interests will be represented by 
existing parties; and (6) the extent to which the requestor's/
petitioner's participation will inappropriately broaden the issues or 
delay the proceeding. See Sec.  2.309(e). Discretionary intervention, 
however, will not be allowed unless at least one other petitioner has 
established standing and at least one admissible contention.
    Comment. Citizen group representatives stated that the NRC should 
return to its pre-1989 contention standards. Some of these participants 
asserted that an intervenor, under current practice, often has to prove 
its case in order to have a contention admitted. These participants 
also believe that the current contention standard has a chilling effect 
on citizen group participation. The citizen group representatives also 
stated that they had difficulty meeting the current contention standard 
because they lacked information about the application. In addition, the 
NRC staff practice of issuing requests for information (RAIs) for a 
purportedly incomplete application is said to place additional burdens 
on intervenors to continually support their contentions on a changing 
application.
    Response. The NRC believes that the contention standard in Sec.  
2.309(f) is appropriate. The threshold standard is necessary to ensure 
that hearings cover only genuine and pertinent issues of

[[Page 2190]]

concern and that the issues are framed and supported concisely enough 
at the outset to ensure that the proceedings are effective and focused 
on real, concrete issues. The contention standard has been in effect 
for more than ten years and has been effective in focusing litigation 
on real issues. The contention standard does not contemplate a 
determination of the merits of a proffered contention. Ample 
information is provided in the application and related documents to 
allow the formulation and support of real, concrete issues.
    Comment. All citizen group participants stated that there is a need 
for intervenor funding. These participants argued that if the 
intervenors had access to resources for participation, there could be 
fewer delays in the proceeding and they could better assist the NRC in 
reaching the correct result. One participant noted that legislation 
prohibits the NRC from providing intervenor funding.
    Response. Congress, in Section 502 of the Energy and Water 
Development Appropriations Act for FY 1993, has barred the use of 
appropriated monies to pay the expenses of, or otherwise compensate, 
parties intervening in NRC adjudicatory proceedings. Public Law 102-
377, Title V, section 502, 106 Stat. 1342 (1992) (codified as amended 
at 5 U.S.C. 504). Therefore, the final rule does not provide for 
assistance to intervenors.

II. Discussion of the Final Rule

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

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

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

2. Significant Comments and Issues, and Their Resolution in Final Rule
    After consideration of the public comments received on the proposed 
rule, as well as public comments received on the 1998 Policy Statement 
and in the hearing process workshop, the Commission has decided to 
retain the proposed rule's general approach of fashioning hearing 
procedures that are tailored to the different kinds of licensing and 
regulatory activities the Commission conducts. However, in response to 
public comments, the Commission has revised the scope of proceedings to 
be governed by a hearing track, and has created a new track to provide 
for ``legislative hearings.'' The Commission expects that the revised 
hearing procedures, ranging from informal to formal, will improve the 
effectiveness and efficiency of the NRC's hearing process, and better 
focus and use the limited resources of all involved.
    The following discussion describes and sets forth the bases for the 
final rule, including the Commission's resolution of all significant 
matters raised in public comments on both individual provisions of the 
proposed rule, and the Commission's requests for comment on specific 
issues, as well as additional corrections, clarifications, and 
additional matters addressed by the Commission in the final rule. The 
Commission's response to all remaining matters raised in the public 
comments are contained in ``Responses to Comments Not Addressed in the 
Statement of Considerations for Changes to the Adjudicatory Process: 
Final Rule.'' This document may be inspected at the NRC's Public 
Document Room, 11555 Rockville Pike, Rockville, Maryland, 20852, as 
well as in the NRC's Public Electronic Reading Room, http://www.nrc.gov/NRC/ADAMS/index.html (ADAMS Accession No. ML033510327). 
Conforming changes to other Commission regulations in Title 10 of the 
Code of Federal Regulations have not been discussed, except where 
additional clarification of the basis for the change was deemed 
necessary.
    (a) Overall Organization of part 2.
    To provide for a more effective and efficient hearing process, the 
Commission is revising 10 CFR part 2 by:
    (1) Establishing a new Subpart C to consolidate the Commission's 
procedures for ruling on requests for hearing/petitions for leave to 
intervene and admission of contentions, and establishing criteria for 
determining the specific hearing procedures that are to be used in 
particular cases and to set out the hearing-related procedures of 
general applicability;
    (2) Modifying the hearing procedures in the current subpart G and 
subpart L and expanding the applicability of more informal procedures;
    (3) Establishing a new subpart N that will provide ``fast track'' 
hearing procedures;
    (4) Establishing a new subpart O that the Commission will use to 
conduct ``legislative hearings;''
    (5) Making conforming amendments as necessary throughout part 2 and 
the remainder of the Commission's regulations in title 10 to refer to 
the correct provisions of revised part 2; and
    (6) Making correcting amendments to use: (i) Consistent terminology 
(e.g., ``construction authorization for a high-level radioactive waste 
repository at a geologic repository operations area noticed under 
Sec. Sec.  2.101(f)(8) or 2.105(a)(5),'' and ``proceedings on an

[[Page 2191]]

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

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

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

[[Page 2192]]

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

[[Page 2193]]

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

[[Page 2194]]

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

[[Page 2195]]

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

[[Page 2196]]

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

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

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

[[Page 2197]]

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

[[Page 2198]]

Section 2.206--Requests for Action Under This Subpart

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

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

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

Section 2.305--Service of Papers, Methods, Proof

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

Section 2.306--Computation of Time

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

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

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

[[Page 2199]]

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

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

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

[[Page 2200]]

a limited opportunity to ask questions, the availability of 
application-related documents for reading on the NRC Web site and/or 
download, and Federal Register and/or Web notice of the filing of an 
application and acceptance of the application for docketing, 
effectively provides the public with more than sixty (60) days to 
become familiar with an application and prepare an adequate request for 
hearing/petition for intervention and contentions. License amendments 
and similar regulatory approvals for nuclear facilities, by contrast, 
are for the most part narrow in scope in terms of regulatory permission 
sought, and do not involve extensive amounts of documentary material. 
For these actions, a period substantially less than sixty (60) days 
should be sufficient to become familiar with an application and prepare 
an adequate request for hearing/petition for intervention and 
contentions. Nonetheless, the Commission will set the period for filing 
requests for hearing/petitions to intervene and contentions at sixty 
(60) days for these actions too.
    With respect to licensing actions for radioactive materials, most 
of these actions do not usually involve extensive amounts of 
documentary material to review, and there is no statutory requirement 
for publication of notice of materials licensing actions in the Federal 
Register. Thus, the sixty (60) day period provided by Sec.  2.309(b) 
should be more than ample time to review the application for a 
radioactive materials license and prepare a request for hearing/
petition to intervene and proposed contentions. For those radioactive 
materials licensing actions that are sufficiently complex or broad in 
scope, it is the Commission's intention that NRC Web site notices would 
be provided for pre-application meetings and notifications of intent to 
file an application, and notice of docketing of the application. These 
notices would ordinarily be published only on the NRC Web site inasmuch 
as there is no statutory requirement for publication in the Federal 
Register, although the Commission could, as a matter of discretion, 
decide to publish notices of opportunity for hearing in the Federal 
Register in individual cases if circumstances tend to indicate that 
such publication is desirable. The Commission believes that sixty (60) 
days is more than ample time to review the application for a complex 
and/or broad scope radioactive materials license and prepare a request 
for hearing/petition to intervene and contentions, in view of Web site 
notice of pre-application meetings, availability of application-related 
documents for reading on the NRC Web site and/or download, and Web site 
notice of the filing of an application and acceptance of the 
application for docketing.
    If a potential requestor/petitioner believes that the period 
provided for filing a request for hearing/petition to intervene is 
insufficient, it may file an appropriate motion with the Commission to 
extend the deadline for submission of requests/petitions and 
contentions. Although the Commission expects to exercise its discretion 
to extend such deadlines sparingly, the availability of such relief 
provides additional reason to set a sixty (60) day period for filing a 
request for hearing/petition to intervene for the usual cases. 
Therefore, the final rule provides for a sixty (60) day period from 
notice in the Federal Register (if no time is specified in the Federal 
Register notice) or on the NRC Web site at http://www.nrc.gov/public-involve/major-actions.html for filing of requests for hearing/petitions 
to intervene, together with proposed contentions.
    Section 2.309(b)(1) incorporates the existing twenty (20) day 
period for filing a request for hearing/petition to intervene and 
contentions on license transfers that was formerly contained in Sec.  
2.1306 (which is being removed in the final rule). Although the 
proposed rule indicated that Sec.  2.1306 would be removed, a 
corresponding requirement for filing within twenty (20) days was not 
included in proposed Subpart C. Section 2.309(b)(1) of the final rule 
corrects this oversight. Similarly, Section 2.309(b)(2) incorporates 
the existing thirty (30) day period for filing a request for hearing/
petition to intervene in connection with the licensing of a HLW 
geologic repository. Although the proposed rule indicated that Sec.  
2.1014 would be removed, a corresponding requirement for filing within 
thirty (30) days was not included in proposed Subpart C. Section 
2.309(b)(2) corrects this oversight. To accomplish these changes, 
paragraphs (b)(1) and (b)(2) of proposed Sec.  2.309 are renumbered as 
(b)(3) and (b)(4), and paragraph (b)(3) is modified to remove the 
phrase, ``the latest of.'' Finally, Sec.  2.309(b)(3)(iii) is modified 
to make clear that the sixty (60) day filing period applies where the 
Federal Register notice does not specify a time for filing requests/
petitions.
Standing
    A nuclear industry commenter indicated that Sec.  2.309(d) should 
specify that a person must establish standing in order to participate 
in Commission proceedings. Two citizen group commenters stated that the 
NRC should not rely upon NRC case law for standing requirements, but 
should go to the broadest judicial standards.
    The Commission does not believe that Sec.  2.309 needs to specify 
that a showing of standing is the general rule for participation in NRC 
hearings, inasmuch as the basic structure of the rule requires a 
demonstration of standing in order to participate as a party (standing 
is presumed for a State, local government, and Federally-recognized 
Indian Tribe where a facility is located within its political 
boundaries). The only exception where intervention may be permitted, 
despite a lack of demonstration of standing, is discretionary 
intervention under Sec.  2.309(e).
    While Article III of the Constitution does not constrain the NRC 
hearing process, our hearings therefore, are not governed by 
judicially-created standing doctrine, see Envirocare of Utah, Inc. v. 
NRC, 194 F.3d 72 (D.C. Cir. 1999), the Commission nonetheless has 
generally looked to judicial concepts of standing where appropriate to 
determine those interests affected within the meaning of Section 189.a. 
of the AEA. Commonwealth Edison Co. (Zion Nuclear Power Station, Units 
1 and 2), CLI-99-04, 49 NRC 185, 188 (1999), citing Portland Gen. Elec. 
Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 
610, 613-14 (1976). The Commission contemplates no change in this 
practice. Accordingly, no change to the rule has been made in this 
regard.
    A commenter, while supporting the proposed Sec.  2.309(d) 
requirement that a single designated representative of an affected 
State, local governmental body and affected, Federally-recognized 
Indian Tribe (Indian Tribe) be granted party status, suggested that the 
designated representative must take a position on any contentions for 
which the affected State, local governmental body or Indian Tribe 
wishes to participate. The Commission believes that the language of the 
proposed Sec.  2.309(d) may have led the commenter incorrectly to 
conclude that the Commission would permit an affected State, 
governmental body, or affected Indian Tribe admitted as a party under 
Sec.  2.309 to ``participate as a party without taking sides.'' On the 
contrary, the Commission intended to maintain the distinction between a 
State, local governmental body, or Indian Tribe participating as 
parties under Sec.  2.309, versus their participation in a hearing as 
an ``interested'' State, local governmental body or Indian Tribe under 
Sec.  2.315(c) (formerly Sec.  2.715(c)). A

[[Page 2201]]

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

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

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

[[Page 2202]]

matter of the proceeding'' (10 CFR 2.1205(e)(3)). This sometimes leads 
to protracted ``paper'' litigation over ill-defined issues and the 
resulting development of an unnecessarily large, unfocused evidentiary 
record. The presiding officer is then burdened with the need to sift 
through the record to identify the basic issues and pertinent evidence 
necessary for a decision. The requirement to have specific contentions 
with a supporting statement of the facts alleged or expert opinion that 
provides the bases for them in all hearings should focus litigation on 
concrete issues and result in a clearer and more focused record for 
decision.
    Several commenters supported the Commission's proposal to extend to 
Subpart L proceedings the requirement to proffer specific, adequately 
supported contentions rather than simply state issues. One commenter 
argued that the formulation of contentions is necessary to efficiently 
develop an accurate record in an informal hearing. The commenter also 
suggested that the Commission require that a contention show that the 
petitioner is entitled to relief. Other commenters opposed requiring 
contentions in informal proceedings, with one commenter asserting that 
the Commission could accomplish its goal by clarifying the ``areas of 
concern'' procedure, rather than forcing the public to bear the 
increased cost of formulating admissible contentions. Citizen group 
commenters also urged that the Commission adopt provisions permitting 
requestors/petitioners/parties to be able to freely amend or add new 
contentions based upon new information and documents such as the filing 
of the NRC staff's SER and EIS. Nuclear industry commenters, by 
contrast, argued that the Commission should instead take one or more 
actions to make clear that SERs and EISs are not necessary to 
resolution of contentions, and that the Commission take appropriate 
actions to ensure that the NRC staff is able to provide its safety 
position on any contention in a timely manner in a proceeding.
    The Commission seeks to ensure that the adjudicatory process is 
used to address real, concrete, specific issues that are appropriate 
for litigation. The Commission continues to believe that a request for 
hearing/petition to intervene should include proposed contentions. The 
Commission should not have to expend resources to support the hearing 
process unless there is an issue that is appropriate for, and 
susceptible to, resolution in an NRC hearing. This principle applies 
regardless of whether a hearing is to be conducted under informal or 
formal procedures. The Sec.  2.309(f) contention requirement is 
intended to support an early NRC determination whether there are issues 
that are appropriate for and susceptible to NRC resolution with respect 
to an NRC regulatory/licensing action. The suggestion for clarifying 
the ``areas of concern'' approach would not accomplish that goal, 
inasmuch as requestors/petitioners would not have to show at the outset 
whether there is a real, cognizable dispute amenable to resolution by 
the NRC. Nonetheless, the Commission does not agree with the 
commenter's suggestion that still another requirement--that a 
contention show that the petitioner is entitled to relief, should be 
added to the petitioner's contention pleading burden. Such a criterion 
overlaps the requirement in Sec.  2.309(d)(1)(iv) with respect to 
standing, requiring the request/petition to address ``the possible 
effect of any decision or order that may be issued in the proceedings 
on the requestor's/petitioner's interest.'' Because a new criterion in 
Sec.  2.309(f) on this matter would place an unneeded additional 
requirement on the contention pleading provisions, the Commission 
declines to adopt the commenter's suggestion.
    The Commission also declines to adopt the thrust of the suggestions 
to allow free amendment and addition of contentions based upon new 
information such as the SER. The NRC staff has the independent 
authority, indeed the responsibility, to review all safety matters. 
See, e.g., S. Cal. Edison Co. (San Onofre Nuclear Generating Station, 
Units 2 and 3), ALAB-680, 16 NRC 127, 143 (1982); Commonwealth Edison 
Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 
1400, 1420, n.36 (1982); Philadelphia Elec. Co. (Limerick Generating 
Station, Units 1 and 2), ALAB-778, 20 NRC 42, 48 (1984). The adequacy 
of the applicant's license application, not the NRC staff's safety 
evaluation, is the safety issue in any licensing proceeding, and under 
longstanding decisions of the agency, contentions on the adequacy of 
the SER are not cognizable in a proceeding. Curators of the Univ. of 
Mo., CLI-95-1, 41 NRC 71, 121-22 (1995), affirmed on motion for 
consideration, CLI-95-8, 41 NRC 386, 396 (1995), La. Power & Light Co. 
(Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56 
(1985); Pac. Gas Electric Co. (Diablo Canyon Nuclear Power Plant, Units 
1 and 2), ALAB-728, 17 NRC 777, 807 (1983), review denied, CLI-83-32, 
18 NRC 1309 (1983). If information in the SER bears upon an existing 
contention or suggests a new contention, it is appropriate for the 
Commission to evaluate under Sec.  2.309(c) the possible effect that 
the admission of amended or new contentions may have on the course of 
the proceeding. The commenters' proposal appears to be based upon the 
misapprehension that, absent consideration in a hearing, safety 
concerns will not be addressed by the NRC. On the contrary, the NRC may 
not issue a license until all appropriate safety findings have been 
made. See, e.g., Commonwealth Edison Co. (Byron Nuclear Power Station, 
Units 1 and 2), ALAB-678, 15 NRC 1400, 1420 n.36 (1982), citing S.C. 
Elec. & Gas Co. (Virgil C. Sumner Nuclear Station, Unit 1), ALAB-642, 
13 NRC 881, 895-896 (1981). Furthermore, any member of the public who 
believes that he or she has significant safety information may, at any 
time, submit a request for NRC action under 10 CFR 2.206 to modify, 
suspend, or revoke a license, or for any other action (e.g., refuse to 
issue a license) that may be appropriate. In sum, the hearing process 
is directed at resolving issues identified and conceptualized by an 
interested member of the public, not at supervising the NRC staff's 
independent safety review.
    With respect to the EIS, the current regulations in 10 CFR Part 51 
provide for hearing consideration of environmental matters. See 10 CFR 
51.94. Accordingly, Sec.  2.309(f)(2) will control the admission of 
amended and new contentions based upon issuance of the NRC staff's EIS, 
and Sec.  2.337(g) will govern the introduction of the EIS or EA into 
evidence in a proceeding.
    One commenter suggested that the Commission adopt a new Sec.  
2.309(f)(3) to specify, where a petitioner adopts an admitted 
contention of another party, that the presiding officer or Licensing 
Board must require one of the petitioners to act as lead. The 
Commission agrees that a new Sec.  2.309(f)(3) should be adopted to 
include such a requirement, and concludes that the paragraph should 
also include an analogous requirement for a lead representative where 
two or more requestors/petitioners co-sponsor a contention.
Timing of Identification of Appropriate Hearing Procedures
    In the proposed rule, Sec.  2.309(g) would require that the request 
for hearing/petition to intervene address the question of the type of 
hearing procedures (e.g., formal hearings under Subpart G, informal 
hearings under Subpart L, or ``fast track'' informal procedures under 
Subpart N) to be used for the proceeding. The Commission

[[Page 2203]]

indicated that this would not be a requirement for admission as a party 
to the proceeding, but a requestor/petitioner who fails to address the 
hearing procedure issue would not later be heard to complain in any 
appeal of the hearing procedure selection ruling. The Commission 
requested public comment on whether, if the Commission adopts the 
alternative proposal that requests for hearing be filed within thirty 
(30) days of appropriate notice, but that contentions be filed later 
(e.g., within seventy-five (75) days of such notice), the Commission 
should require the petitioner to set forth its views on appropriate 
hearing procedures at the deadline for filing contentions, rather than 
in the petition/request for hearing. Commenters did not specifically 
address the Commission's question, and no changes were made in the 
final rule with respect to this matter.
Answers and Replies
    In the proposed rule, Sec.  2.309(h) would allow the applicant or 
licensee and the NRC staff twenty-five (25) days to file written 
answers to requests for hearing/petitions to intervene, and would 
permit the petitioner to file a written reply to the applicant/licensee 
and NRC staff answers within 5 days after service of any answer. No 
other written answers or replies would be entertained. The Commission 
sought public comment on whether the proposed time limits for replies 
and answers should be expanded.
    A commenter representing a number of organizations indicated that 
the five (5) days allotted in Sec.  2.309(h)(2) is too short a time to 
respond to NRC, applicant or licensee answers. Instead, the rule should 
provide for at least ten (10) days to respond. By contrast, NEI argued 
that the periods allowed in the proposed rule for answering requests 
for hearing/petitions to intervene and replies should be expanded only 
in situations where time limits are ``unworkable.''
    The Commission has decided to provide seven (7) days for a 
requestor/petitioner to respond to an applicant/licensee and NRC staff 
answer on a request for hearing/petition to intervene. Any reply should 
be narrowly focused on the legal or logical arguments presented in the 
applicant/licensee or NRC staff answer; a seven-day period to prepare 
such a focused reply is not unreasonable. If there are special 
circumstances, the requestor/petitioner may request a short extension 
from the presiding officer.
    A commenter suggested that Subpart C should provide that the 
presiding officer issue a decision on standing and admissibility of 
contentions within 45 days of the completion of the parties' filings on 
those issues. The Commission agrees with this suggestion, and a new 
paragraph (i) has been added to Sec.  2.309 requiring the presiding 
officer to issue a decision on standing and admissibility of 
contentions within forty-five (45) days of the completion of the 
parties' filings. The Commission believes that this is an appropriate 
and reasonable time period for a presiding officer to issue a decision 
on standing and admissibility of contentions, considering the 
thoroughness of the petitions and responses. Additional time beyond the 
45 days may be provided if circumstances warrant.

Section 2.310--Selection of Hearing Procedures

    (1) Subpart G Hearing Procedures.
    The Commission requested comment on the criteria for identification 
of cases where the use of Subpart G hearing procedures would be of 
benefit. Comments will be discussed under each criterion in the 
proposed rule.
    Uranium Enrichment Facilities. The single exception to the 
Commission's broad authority to select hearing procedures involves 
proceedings on licensing the construction and operation of uranium 
enrichment facilities. Section 193 of the AEA requires that hearings on 
uranium enrichment facility construction and operation be ``on-the-
record,'' thus requiring formal trial-type hearing procedures to be 
used. Section 2.310(b) of the proposed rule reflected this requirement 
by specifying that a proceeding on licensing the construction and 
operation of a uranium enrichment facility must be conducted using the 
hearing procedures of Subpart G. No comments were received on this 
criterion and no change to the substance of the proposed rule was made 
in this regard. However, the Commission reorganized Sec.  2.310 in the 
final rule. Accordingly, Sec.  2.310(c) in the final rule specifies the 
use of Subpart G hearing procedures in proceedings on the licensing of 
the construction and operation of uranium enrichment facilities.
    Enforcement Matters. In its July 22, 1999 Staff Requirements 
Memorandum on SECY-99-006, Reexamination of the NRC Hearing Process, 
the Commission noted that Subpart G hearing procedures would seem to be 
appropriate for hearings on enforcement actions. Several participants 
in the October 1999 hearing process workshop agreed, noting that 
Subpart G hearing procedures would give the entity subject to the 
proposed enforcement action the opportunity to fully confront the 
proponent of the proposed enforcement action. The Commission requested 
comments on the proposal to require the application of Subpart G 
hearing procedures in hearings involving enforcement matters and views 
on whether and when to allow the use of less formal hearing procedures 
for these matters.
    All commenters agreed that Subpart G hearing procedures should be 
available in enforcement cases, with one commenter noting that Subpart 
G should be available in enforcement actions against both individuals 
and licensees. However, one commenter asserted that enforcement matters 
should be the only proceedings where Subpart G procedures should be 
applied. Two commenters stated that individuals and licensees should be 
able to request use of informal procedures in enforcement cases. One of 
those commenters indicated that the NRC staff should not have ``veto 
power'' over a licensee's choice to use Subpart N in enforcement and 
civil penalty cases, while the other implicitly suggested that the NRC 
staff should not be able to choose to use more informal procedures.
    The Commission continues to believe that Subpart G hearing 
procedures should be applied in enforcement actions against both 
individuals and licensees. The Commission does not agree with the 
suggestion that the subject of an enforcement action alone should be 
able to choose informal procedures. As one commenter pointed out, 
enforcement actions usually involve making determinations of intent and 
credibility, for which the use of Subpart G hearing procedures--in 
particular, cross-examination--are especially suited. On the other 
hand, if all parties agree to the use of one of the more informal 
hearing procedures in an enforcement proceeding (e.g., Subpart L or 
Subpart N), there does not appear to be any significant public policy 
mitigating against such a choice by all parties. Therefore, the 
substance of the final rule remains unchanged from the proposed rule in 
providing that all parties must agree and jointly request an 
enforcement proceeding to be conducted under the procedures of Subpart 
L or Subpart N.
    High Level Waste (HLW) Repository Licensing. Until the adoption of 
Subpart L in 1989 (54 FR 8276; Feb. 28, 1989), all proceedings 
conducted by the AEC and NRC were formal adjudicatory hearings. 
Consistent with that established practice, in 1978 the NRC declared 
that it would hold Subpart G hearings on an application to construct 
and operate a repository for HLW. In

[[Page 2204]]

final rules published in 1981, the Commission provided for a mandatory 
Subpart G hearing at the construction authorization stage and for an 
opportunity for a Subpart G hearing before issuing a license to receive 
and possess HLW at a geologic repository. Subsequently, Congress 
enacted the Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq. 
That law does not include any specific hearing requirements. Instead, 
it seems to contemplate, in Section 114, that the NRC will apply 
existing laws applicable to the construction and operation of nuclear 
facilities. In sum, there is no statutory requirement for a formal, on-
the-record hearing using Subpart G procedures on a HLW repository, but 
without a rule change, the NRC's regulations would require a Subpart G 
hearing.
    Although the Commission generally seeks to use more informal 
procedures for its hearings, the proposed rule reflected the 
Commission's tentative conclusion that the hearing procedures of 
Subpart G should be used in proceedings for the initial authorization 
to construct a HLW repository, and proceedings for issuance of an 
initial license to receive and possess HLW at a HLW repository. The 
initial authorization of construction of a HLW repository and the 
initial issuance of a license to receive and possess HLW are likely to 
be highly contested. The President's recommendation to proceed with 
repository development at the Yucca Mountain site has been upheld by 
Congress. The adjudication is likely to involve multiple parties, 
including the State of Nevada, as well as possible participation by 
other States, local governmental bodies, and Federally recognized 
Indian Tribes. The issues to be adjudicated will undoubtedly involve a 
large number of disputes over material facts. Moreover, the Commission 
has long taken the position that for this unique, first-of-its-kind 
proceeding, it would provide an on-the-record hearing under Subpart G 
for repository licensing, thereby creating certain public expectations 
on the hearing procedures to be used for this particular proceeding. A 
change in Commission position now to permit the use of more informal 
procedures for authorizing construction of a HLW geologic repository 
and issuance of a license to receive and possess HLW at a geologic 
repository operations area would not advance public confidence in the 
Commission's repository licensing process. Based on these 
considerations, Sec.  2.310(e) of the proposed rule provided that the 
initial application for authorization to construct a HLW repository, 
and initial issuance of a license to receive and possess HLW at a 
geologic repository operations area use the hearing procedures of 
Subpart G. Section 2.310(e) of the proposed rule provided that 
amendments to the construction authorization for the HLW repository, 
and amendments to the application and/or license to receive and possess 
HLW at a geologic repository operations area should be subject to the 
same criteria as other proceedings in determining what hearing 
procedures will be used. The Commission requested public comment on 
these proposals.
    In general, industry commenters opposed the use of Subpart G 
procedures for initial authorization to construct a geologic repository 
and issuance of the initial license to receive and possess HLW at a 
geologic repository. One industry commenter stated that the nature and 
subject matter of the HLW proceedings are similar to those involving 
reactor licensees and there is no reason to apply different hearing 
procedures; accordingly, the commenter argued that HLW proceedings 
should be conducted under proposed Subparts L or N. Another commenter 
indicated that the Commission should not prejudge the nature of the 
issues that will be raised regarding the HLW repository and instead 
should maintain flexibility to decide, based on the nature of 
contentions at the time they are raised, what kind of hearing procedure 
will best serve the interests of the stakeholders. Two citizen group 
commenters, while not directly addressing the type of procedure to be 
used in HLW repository authorizations, argued that it is inconsistent 
for the Commission to provide formal hearings for HLW authorizations, 
while moving to ``deformalize'' nuclear power plant and materials 
licensing proceedings.
    The Commission continues to believe that, while not required by 
statute, any hearings in connection with the initial authorization to 
construct a HLW geologic repository, and the initial license to receive 
and possess HLW at a geologic repository operations area should be held 
using Subpart G hearing procedures. None of the comments received on 
this subject raised any new arguments or considerations that were not 
already considered by the Commission in making its tentative 
determination for the proposed rule. Accordingly, the hearing procedure 
selection provision in Sec.  2.310(f) specifies the use of Subparts G 
and J hearing procedures for the initial authorization to construct a 
high-level radioactive waste geologic repository, and initial issuance 
of a license to receive and possess high-level waste at a geologic 
repository operations area. In response to a commenter, the Commission 
removed a typographic error that resulted in a partial sentence in this 
paragraph of the proposed rule. The Commission also modified the 
language to clarify that Subpart G proceedings apply only to the 
initial authorization to construct and to initial issuance of the 
license to receive and possess HLW.
    Complex Issues in Reactor Licensing. Section 2.310(c) of the 
proposed rule included a criterion that would call for the use of the 
hearing procedures of Subpart G in those reactor licensing proceedings 
that involve a large number of complex issues which the presiding 
officer determines can best be resolved through the application of 
formal hearing procedures. The Commission requested public comments on 
the appropriateness of this proposed ``numerous/complex issues'' 
criterion, and representative examples of the type of ``complex 
issues'' that would benefit from the use of Subpart G hearing 
procedures. The Commission also requested comment on whether this 
criterion should be modified to instead provide for Subpart G hearings 
in initial power reactor construction permit proceedings, initial 
operating license proceedings, combined license issuance proceedings 
under 10 CFR Part 52, Subpart C, and hearings associated with 
authorizations to operate under a combined license under 10 CFR 52.103.
    The nuclear industry commenters on this matter uniformly opposed 
the proposed numerous/complex issues criterion. Several commenters 
indicated that the proposed standard is too subjective and would be 
difficult to interpret and apply, consequently leading to overuse of 
this criterion. Another commenter argued that the criterion undermines 
the advantages to be derived from less formal procedures and creates 
additional opportunities for argument and litigation over procedural 
matters. A third commenter suggested that it is not always true that 
``very complex cases'' will benefit from formal hearings, pointing out 
that it is the nature of the issues to be decided that determines 
whether formal procedures are appropriate. No citizen group 
specifically addressed the ``numerous/complex issues'' criterion, 
although their general support for Subpart G procedures for all nuclear 
power plant licensing proceedings implies their opposition to this 
criterion.
    Upon reconsideration, the Commission agrees that the proposed

[[Page 2205]]

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

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

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

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

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

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

[[Page 2206]]

not meet the criteria set forth in section 2.310(d) for use of Subpart 
G hearing procedures. Under this provision, Subpart L procedures would 
be used, as a general matter, for hearings on power reactor 
construction permit and operating license applications under parts 50 
and 52, power reactor license renewal applications under part 54, power 
reactor license amendments under part 50, reactor operator licensing 
under part 55, and nearly all materials and spent fuel licensing 
matters. This is a significant change from current hearing practice for 
reactor licensing matters. Under existing practice, proceedings on 
applications for reactor construction permits, operating licenses and 
operating license amendments have used the hearing procedures of 
Subpart G. Similarly, in the Statement of Considerations for the 1991 
rule on reactor license renewal, the Commission stated that it would 
provide an ``opportunity for a formal public hearing'' on reactor 
license renewal applications (56 FR 64943, 64946; Dec. 13, 1991). The 
hearing procedures of Subpart L could also be applied in hearings 
involving enforcement matters if all parties agree.
    As discussed earlier with respect to the Commission's proposed move 
away from use of Subpart G trial-type hearing procedures, significant 
comments were received that both supported and opposed this direction. 
The Commission has decided, also for the reasons discussed earlier, 
that greater use of more informal hearing procedures is desirable and 
has decided to adopt in large part the proposed rule's provisions 
expanding the use of Subpart L hearing procedures.
    Subpart N--Fast Track Procedures. Proposed Sec.  2.310(h) would 
apply the informal ``fast track'' hearing procedures of new Subpart N 
in any proceeding (other than those designated in Sec.  2.310(a)-(g) as 
requiring other procedures) in which the hearing is estimated to take 
no more than 2 days to complete or where all parties agree to the use 
of the ``fast track'' hearing procedures. The Commission requested 
comments and suggestions on the appropriate criteria for the use of 
Subpart N.
    A citizen group commenter asserted that the Commission should not 
adopt a ``fast track'' hearing procedure, arguing that to presuppose 
that safety issues can be handled in a fast track proceeding ``invites 
disaster.'' The Commission continues to believe there is a need for an 
expedited hearing track to provide for the expeditious resolution of 
issues in cases where the contentions are few and not particularly 
complex and might be efficiently addressed in a short hearing using 
simple procedures and oral presentations. The Commission views the 
``fast track'' procedures of Subpart N as particularly useful for some 
reactor operator licensing cases or for small materials licensees cases 
where the parties want to be heard on the issues in a simple, 
inexpensive, informal proceeding that can be conducted quickly before 
an independent decisionmaker. The commenter provided no basis for the 
assertion that proper application of fast-track procedures would result 
in erroneous resolution of public health and safety issues. Therefore, 
the Commission declines to adopt the commenter's suggestion. The 
hearing procedure selection provision in Sec.  2.310(h) specifies the 
circumstances for which Subpart N hearing procedures may be used.

Reorganization of Sec.  2.310

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

Section 2.311--Interlocutory Review

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

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

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

[[Page 2207]]

headings are added to each paragraph of Sec.  2.313.

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

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

Section 2.315--Participation by a Person Not a Party

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

Section 2.319--Power of Presiding Officer

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

Section 2.323--Motions

    Proposed Sec.  2.323 incorporated the provisions in Sec.  2.730 in 
Subpart G on the general form, content, timing, and requirements for 
motions and responses to motions. The Commission requested public 
comment on whether Sec.  2.323(a) should specify a time limit of ten 
(10) days for filing of motions, beginning from the action or 
circumstance that engenders the motion. One nuclear industry commenter 
indicated that Sec.  2.323 should set time limits on the filing of 
motions, preferably requiring them to be filed no later than ten (10) 
days after the occurrence or circumstance from which the motion arises. 
However, another nuclear industry commenter opposed setting a time 
limit because of the ``broad nature'' of motions. The Commission has 
decided that expeditious management of a hearing requires that motions 
be filed reasonably promptly after the underlying circumstances occur 
which engender a motion. Accordingly, a ten (10) day limit for filing 
motions is included in the final version of Sec.  2.323(a).
    Proposed Sec.  2.323(e) included a standard for evaluating motions 
for reconsideration, viz., compelling circumstances, such as the 
``existence of a clear and material error in a decision, which could 
not have reasonably been anticipated, that renders the decision 
invalid'' (this standard is also reflected in proposed Sec.  2.344(b)). 
The Commission requested public comment on whether this ``compelling 
circumstances'' standard in the proposed rule should be adopted or 
eliminated from the final rule. A commenter supported inclusion of a 
``compelling circumstance'' standard for reconsideration embodied in 
proposed Sec.  2.323(e). Another commenter instead argued that the 
current standard for motions for reconsideration, as defined by NRC 
case law, should be retained. The existing standard allows for motions 
requesting the presiding officer to reexamine existing evidence that 
may have been misunderstood or overlooked, or to clarify a ruling on a 
matter. The Commission has decided that the ``compelling 
circumstances'' standard should be utilized for motions for 
reconsideration. This standard, which is a higher standard than the 
existing case law, is intended to permit reconsideration only where 
manifest injustice would occur in the absence of reconsideration, and 
the claim could not have been raised earlier. In the Commission's view, 
reconsideration should be an extraordinary action and should not be 
used as an opportunity to reargue facts and rationales which were (or 
should have been) discussed earlier.
    Finally, the proposed rule addressed the referral of rulings and 
certified questions by the presiding officer to the Commission. With 
regard to referrals, proposed Sec.  2.323(f) would provide for 
referrals of decisions or rulings where the presiding officer 
determines that the decision or ruling involves a novel issue that 
merits Commission review at the earliest opportunity. The proposed 
section also differs from the existing requirements by allowing any 
party to file with the presiding officer a petition for certification 
of issues for early Commission review and guidance. This is consistent 
with the Commission's direction in the 1998 Statement of Policy on 
Adjudicatory Proceedings stating that issues or rulings involving novel 
questions which would benefit from early Commission guidance should be 
certified to the Commission. No comments were received on this 
provision, and the Commission adopts Sec.  2.323(f) without change.

Section 2.327--Official Recording; Transcript

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

Section 2.332--General Case Scheduling and Management

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

[[Page 2208]]

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

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

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

Section 2.334--Schedules for Proceedings

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

Section 2.336--General Discovery

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

Section 2.337--Evidence at a Hearing

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

[[Page 2209]]

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

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

    The Commission has long encouraged the resolution of contested 
issues in licensing and enforcement proceedings through settlement, 
consistent with the hearing requirements of the Atomic Energy Act. See 
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 
NRC 452 (45 FR 28533; May 27, 1981); Policy Statement on Alternative 
Means of Dispute Resolution (57 FR 36678; Aug. 14, 1992). In this 
rulemaking, the Commission considered expanding the role of alternative 
dispute resolution (ADR) in NRC adjudications. ADR can be defined as 
any technique that results in the conciliatory resolution of a dispute, 
including facilitation, mediation, fact finding, mini-trials, early 
neutral evaluation, and arbitration. Although ``unassisted'' 
negotiation to resolve disputes has long been effectively used in 
resolving disputed matters before NRC tribunals, the focus of the ADR 
Act, and the efforts of the Interagency Working Group on Alternative 
Dispute Resolution chaired by the Attorney General (Interagency Working 
Group), has been on ``formal'' ADR techniques that require the use of a 
third party neutral. The Commission's consideration of ADR techniques 
for use in the hearing process also focuses on these formal ADR 
techniques. Although the Commission believes that a broad array of ADR 
options could be made available to the parties in an NRC proceeding, 
its view at the proposed rule stage was that ``non-binding'' 
techniques, such as mediation, would be the most appropriate. For 
example, mediation is a process by which an impartial third party--a 
mediator--facilitates the resolution of a dispute by promoting a 
voluntary agreement by the parties to the dispute. The parties are free 
to develop a mutually acceptable resolution to their dispute. The role 
of the mediator is to help the parties reach this resolution. The 
mediator does not decide the case or dictate the terms of a settlement. 
In addition to the foregoing, in response to suggestions by several 
workshop participants, the Commission indicated that it was considering 
providing further guidance on the use of alternative dispute resolution 
(ADR) as part of its hearing procedures.
    In considering expanding the role of ADR in NRC adjudications, the 
Commission's focus is consistent with the NRC's continuing 
participation in the activities of the Interagency Working Group, as 
well as with the Administrative Dispute Resolution Act

[[Page 2210]]

of 1996 (ADR Act). The Working Group was established to facilitate the 
implementation of a May 1, 1998, memorandum from President Clinton that 
directed all executive departments and Federal agencies to develop 
dispute resolution programs. Nonetheless, the Commission recognizes 
that because of the Commission's statutory responsibility under the AEA 
to make required public health and safety findings, the use of ADR may 
not be appropriate in all circumstances.
    Section 2.337 of the proposed rule would not only have consolidated 
the former provisions in part 2 on settlement (10 CFR 2.203, 2.759, 
2.1241), it would also have provided guidance on the use of settlement 
judges as mediators in NRC proceedings. The Commission previously 
endorsed the appropriate use of settlement judges in Rockwell 
International Corp., CLI-90-05, 31 NRC 337 (1990). The proposed rule 
was modeled on a provision in the Model Adjudication Rules prepared in 
1993 for the Administrative Conference of the United States (ACUS). See 
Cox, The Model Adjudication Rules, 11 T.M. Cooley L. Rev. 75 (1994). 
The Commission sought public comment on the text of proposed Sec.  
2.337 as well as on the following questions:
    [sbull] Should the Commission formally provide for the use of ADR 
in its hearing process?
    [sbull] Should the use of ADR be codified in the Commission's 
regulations or provided for in some other manner, such as a policy 
statement?
    [sbull] At what stage of the hearing process should an opportunity 
for ADR be provided?
    [sbull] What types of issues would be amenable to resolution 
through ADR? What types of issues should not be considered for 
resolution through ADR?
    [sbull] How should the use of ADR operate in the context of the 
hearing process? Who could propose its use? What should be the role of 
the presiding officer? Who should be parties to the ADR process? What 
should be the role of the NRC staff in the ADR process? What happens to 
the proceeding while the ADR process is being implemented? How would 
the resolution of a dispute be incorporated into the hearing process? 
What should the role of the Commission be in the ADR process?
    [sbull] Should there be a source of third-party neutrals other than 
settlement judges appointed from the members of the Atomic Safety and 
Licensing Board Panel to assist in the ADR process, such as the roster 
of neutrals established by the U.S. Institute for Conflict Resolution 
or the National Energy Panel of the American Arbitration Association? 
How should such individual neutrals be selected? What arrangements 
should be made to compensate neutrals for their services?
    A wide range of comments were received on ADR. Most commenters 
supported Commission efforts to encourage the use of ADR, but all 
indicated that ADR should not be required. While a commenter indicated 
that a proceeding should be suspended during ADR, other commenters 
argued that the use of ADR should not upset the hearing schedule. The 
Commission continues to believe that the use of ADR has the potential 
to eliminate unnecessary litigation of licensing issues, shorten the 
time that it takes to resolve disputes over issues, and achieve better 
resolution of issues with the expenditure of fewer resources. However, 
the Commission agrees that parties should not be forced to use ADR, and 
the final rule continues to make the use of ADR subject to voluntary 
agreement of all parties to any given contention. The Commission also 
believes that hearings should continue while ADR is ongoing, unless all 
parties agree to suspend the hearing and present an appropriate motion 
to the presiding officer. Thus, Sec.  2.338 remains largely unchanged 
from the text of proposed Sec.  2.337.
    Section 2.337(i) of the proposed rule provided that a settlement or 
compromise must be embodied in a decision or order ``settling and 
terminating the proceeding.'' However, some settlements or compromises 
may resolve only some of the contentions/controverted matters, and may 
not result in termination of the proceedings. Accordingly, the 
Commission removed that phrase in Sec.  2.338(i) of the final rule.

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

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

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

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

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

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

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

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

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

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

[[Page 2211]]

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

Section 2.703--Examination by Experts

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

Section 2.704--Discovery: Required Disclosures

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

Section 2.705--Discovery--Additional Methods

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

Section 2.709--Discovery Against NRC Staff

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

Section 2.710--Summary Disposition Motions

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

[[Page 2212]]

determination. The Commission is retaining the provisions set forth in 
the final two sentences of proposed Sec.  2.710(a) allowing the 
presiding officer not to consider a summary disposition motion which 
the presiding officer believes would not expedite the proceeding if the 
motion were granted, and to either summarily dismiss or hold in 
abeyance a summary disposition motion filed shortly before or during 
the oral hearing, if the presiding officer believes that substantial 
resources must be diverted to adequately respond to the motion. The 
provisions, however, have been moved into new paragraph (d)(1) of Sec.  
2.710.
    (h) Subpart I.
    The Commission is adopting a conforming change to Sec.  2.901to 
specify that the procedures for handling Restricted Data and National 
Security Information in Subpart I apply to proceedings under subparts 
G, J, K, L, M, and N. Section 2.901, which specified that Subpart I 
procedures apply only to proceedings conducted under subpart G, was 
adopted in 1962, and underwent minor changes in 1976 but was not 
modified to reflect the Commission's adoption of subparts J, K, L, and 
M. The procedures in Subpart I for handling Restricted Data and 
National Security Information are generic and appropriate for use in 
NRC adjudicatory proceedings. However, it is highly unlikely that the 
Commission will choose to hold Subpart O legislative-style hearings 
requiring the handling and consideration of Restricted Data and 
National Security Information. Accordingly, the final rule specifies 
that Subpart I procedures will apply to proceedings under subparts G, 
J, K, L, M, and N. However, should the Commission determine that access 
to Restricted Data and National Security Information should be provided 
in Subpart O legislative-style hearings, the Commission may specify the 
use of Subpart I procedures under Sec.  2.1502(c)(6).
    In a conforming change, the definition of a ``party'' in Sec.  
2.902(e) is amended to refer to Sec. Sec.  2.309 (former Sec.  2.714) 
and 2.315 (former Sec.  2.715).
    (i) Subpart J.
    The Commission proposed a number of changes to Sec. Sec.  2.1000, 
2.1001, 2.1010, 2.1012, 2.1013, 2.1014, 2.1015, 2.1016, 2.1018, 2.1019, 
2.1021, and 2.1023. The changes are intended to: (1) Correct references 
to rules of general applicability in existing Subpart G that are being 
transferred to Subpart C, and (2) eliminate redundant or duplicate 
provisions in Subpart J that would be covered by the generally 
applicable provisions in Subpart C.
    One commenter suggested that Sec.  2.1013(b) be clarified to 
provide that exhibits used in connection with cross-examination need 
not be tendered in advance to opposing parties. The Commission declines 
to adopt the commenter's suggestion. The Commission has adopted in Part 
2 the principle of broad disclosure of relevant documents and 
information to all parties. That principle is manifested in Subpart J 
by the requirement for the Licensing Support Network (LSN), in which 
the parties are to file certain documents as described in Subpart J, 
including Sec. Sec.  2.1003 and 2.1004. Thus, all documents that may be 
used in cross-examination must be disclosed to other parties. However, 
nothing in Subpart J requires that such documents must be identified as 
to their intended use by a party in the proceeding. Therefore, an 
exhibit to be used in cross-examination need not be identified as such, 
nor must that exhibit be marked to show the portions of the exhibit to 
be used in cross-examination. Accordingly, all parties will have access 
to all relevant documents, including those to be used in cross-
examination, without knowing which document (if any), or portion 
thereof, may be used in cross-examination.
    The Commission has adopted the proposed revision to Subpart J with 
some additional conforming and correcting changes. Section 2.1000 is 
revised to provide for consistent organization and terminology among 
all scope statements in part 2. In addition, Sec.  2.1000 is revised to 
add references to provisions of Subparts C and G, where existing Sec.  
2.1000 erroneously omitted reference to the parallel provisions in 
former Subpart G. Section 2.1000 now references Sec. Sec.  2.301 and 
2.701, which authorize the Commission to use alternative procedures to 
the extent that the conduct of military or foreign affairs functions 
are involved; Sec.  2.317(a), which permits separate hearings in a 
proceeding; Sec.  2.324, which authorizes the presiding officer to 
determine the order of procedure; and Sec.  2.710, which addresses the 
use of summary disposition motions.
    Conforming changes are made in Sec.  2.1001 to provide correct 
references to Sec. Sec.  2.309, 2.315, and 2.1021, and to use 
consistent terminology. Section 2.1006 is conformed to refer to Sec.  
2.390. Section 2.1018 is conformed to refer to Sec.  2.708. A 
conforming change is made to Sec.  2.1022 to correct a reference to the 
general provisions governing late-filed contentions in Sec.  2.309(c). 
Finally, the newly-adopted provisions in Subpart J are changed to be 
consistent with Subpart C of this final rule and newly-adopted 10 CFR 
Part 63 (66 FR 55732; Nov. 2, 2001), by referring to a ``construction 
authorization'' for a HLW geologic repository, and a ``license to 
receive and possess'' HLW at a HLW geologic repository.
    (j) Subpart K.
    The Commission proposed several simple changes to Sec. Sec.  2.1109 
and 2.1117. In addition, Sec.  2.1111 on discovery would be removed 
because discovery for Subpart K hybrid hearings will be addressed by 
the general discovery provisions of Subpart C. The proposed changes 
were intended: (1) To conform Subpart K to the rules of general 
applicability of Subpart C, particularly with regard to the need to 
request hybrid hearing procedures in the petition to intervene, and (2) 
to make it clear that a hearing on any contentions that remain after 
the oral argument under Subpart K will be conducted using the informal 
hearing procedures of proposed Subpart L.
    A commenter argued that, because the first spent fuel pool capacity 
expansion license amendment case to use Subpart K, Carolina Power & 
Light Co. (Shearon Harris Nuclear Power Plant), LBP-00-12, 51 NRC 247 
(2000) (Shearon Harris), took over two (2) years to reach resolution, 
many changes should be made to Subpart K which are not being made at 
this time. Specifically, the commenter suggested that Sec.  2.1113(a) 
should allow issues of whatever nature that are identified for oral 
argument to be heard together; Sec.  2.1113(b) should allow experts who 
prepare affidavits in support of written submissions to respond 
directly to questions posed by the hearing examiner at the oral 
argument; Sec.  2.1115(a) should establish firm deadlines after oral 
argument for the presiding officer to rule on whether any issues remain 
to be heard in an adjudicatory hearing, and all issues admitted should 
be heard together; and Sec.  2.1115(b) should specify that the party 
raising an issue of fact or law for consideration has the burden of 
proof as to whether the issue meets the standards for holding such a 
hearing.
    The Commission does not agree with the commenter's suggestion that 
all issues be heard together at oral argument, and resolved in an 
adjudicatory hearing if one is held. The commenter did not explain how 
the lack of provisions in Subpart K addressing these matters resulted 
in unnecessarily prolonging the time needed for resolution in Shearon 
Harris.
    On the other hand, the Commission agrees with the commenter's 
observation that ``restrictions on oral argument''--presumably the fact 
that it is inappropriate for attorneys

[[Page 2213]]

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

[[Page 2214]]

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

[[Page 2215]]

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

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

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

B. Section-by-Section Analysis

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

[[Page 2216]]

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

Section 2.100--Scope of Subpart

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

Section 2.101--Filing of Application

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

Section 2.102--Administrative Review of Application

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

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

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

Section 2.104--Notice of Hearing

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

Section 2.105--Notice of Proposed Action

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

Section 2.106--Notice of Issuance

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

Section 2.107--Withdrawal of Application

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

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

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

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

    Conforming changes were made to this section to reflect the new 
section numbers in part 2.
4. Subpart B--Sections 2.200--2.206
    Section 2.206 is amended to provide the Secretary with the 
authority (formerly set forth in Sec.  2.772(g)) to extend upon the 
Commission's motion the time for Commission review under Sec.  
2.206(c)(1) of a Director's denial of a petition submitted under Sec.  
2.206.
5. Subpart C--Sections 2.300-2.348, 2.390
    Subpart C contains the rules of general applicability for 
considering hearing requests, petitions to intervene and proffered 
contentions, for determining the appropriate hearing procedures to use 
for a particular proceeding, and for establishing the general powers 
and duties of presiding officers for the NRC hearing process. The 
provisions of Subpart C generally apply to all NRC adjudications 
conducted under the authority of the Atomic Energy Act of 1954, the 
Energy Reorganization Act of 1974, and 10 CFR part 2.
    A large part of Subpart C essentially restates and updates the 
substance of many of the rules of general applicability that were 
formerly contained in Subpart G. The Commission has prepared Table 1, 
which cross-references the new provisions in Subpart C and the 
renumbered Subpart G to the superseded provisions of Subpart G, and 
Table 2 which cross-references the superseded provisions of Subpart G 
to new Subparts C and G.

     Table 1.--Cross-References Between New Subparts C and G and Old
                         Provisions of Subpart G
[NA = no comparable provision in former Subpart G. None = no substantive
    or editorial change; references to Part 2 sections are corrected]
------------------------------------------------------------------------
                                                        Description/
          New section              Old section          modification
------------------------------------------------------------------------
                    Cross-References to New Subpart C
------------------------------------------------------------------------
2.301.........................  2.700a...........  Paragraph (b) on
                                                    applicability is
                                                    removed.
2.302.........................  2.701............  Addresses facsimile
                                                    transmissions and
                                                    electronic mail.
2.303.........................  2.702............  Clarified; no
                                                    substantive change.
2.304.........................  2.708, 2.709.....  Addresses electronic
                                                    mail; modifies
                                                    format requirements
                                                    of documents.

[[Page 2217]]

 
2.305.........................  2.712............  Addresses facsimile
                                                    and electronic mail.
                                                    Adds provision
                                                    requiring service by
                                                    most expeditious
                                                    means, and provision
                                                    on service on NRC
                                                    staff when not a
                                                    party. Deletes
                                                    provisions on proof
                                                    of service and free
                                                    copying.
2.306.........................  2.710............  Addresses computation
                                                    of time for
                                                    electronic mail and
                                                    facsimile
                                                    transmissions.
2.307.........................  2.711............  Clarified.
2.308.........................  NA...............  New section on
                                                    Secretary's duty to
                                                    forward petitions/
                                                    requests for hearing
                                                    to Commission or
                                                    Chief Judge.
2.309.........................  2.714............  Changes requirement
                                                    for standing;
                                                    requires filing of
                                                    contentions with
                                                    petition/request for
                                                    hearing. Adds
                                                    provision with
                                                    standards for
                                                    discretionary
                                                    intervention, and
                                                    adds provision on
                                                    time limit for
                                                    issuance of
                                                    presiding officer's
                                                    decision on
                                                    petitions/requests
                                                    for hearing.
2.310.........................  NA...............  New section setting
                                                    forth criteria for
                                                    different hearing
                                                    tracks.
2.311.........................  2.714a...........  Clarified; adds
                                                    provision on appeals
                                                    with respect to
                                                    selection of hearing
                                                    procedure.
2.312.........................  2.703............  Clarified; adds
                                                    provision on
                                                    statement of hearing
                                                    procedures or
                                                    subpart for order or
                                                    notice of hearing.
2.313.........................  2.704............  Clarified and
                                                    reorganized.
2.314.........................  2.713............  Simplified and
                                                    expanded.
2.315.........................  2.715............  Clarified; adds
                                                    requirement for
                                                    designation of
                                                    single
                                                    representative for
                                                    interested States,
                                                    local governmental
                                                    bodies, and affected
                                                    Federally-recognized
                                                    Indian Tribes not
                                                    admitted as parties.
2.316.........................  2.715a...........  Clarified and
                                                    simplified; expanded
                                                    to cover all
                                                    proceedings.
2.317.........................  2.716, 2.761a....  Simplifies provision
                                                    for establishment of
                                                    separate hearings;
                                                    no change to
                                                    provision on
                                                    consolidation of
                                                    proceedings.
2.318.........................  2.717............  Conforming changes
                                                    made to refer to
                                                    administrative law
                                                    judge.
2.319.........................  2.718, 2.1233(e).  Clarified;
                                                    consolidates several
                                                    provisions relating
                                                    to authority of
                                                    presiding officer.
2.320.........................  2.707............  None.
2.321.........................  2.721............  Conforming changes
                                                    made to refer to
                                                    Chief Administrative
                                                    Judge.
2.322.........................  2.722............  None.
2.323.........................  2.730............  Clarified and
                                                    expanded to address
                                                    motions for
                                                    referral,
                                                    reconsideration and
                                                    certification, and
                                                    accuracy in filing.
2.324.........................  2.731............  None.
2.325.........................  2.732............  None.
2.326.........................  2.734............  None.
2.327.........................  2.750............  Replaces subsection
                                                    on provision of free
                                                    transcripts, and
                                                    adds new provisions
                                                    on video recordings.
2.328.........................  2.751............  None.
2.329.........................  2.752, 2.751a....  Consolidates and adds
                                                    provisions on
                                                    purpose and
                                                    objectives of
                                                    prehearing
                                                    conferences.
2.330.........................  2.753............  None.
2.331.........................  2.755............  None.
2.332.........................  NA...............  New section on case
                                                    scheduling and
                                                    management.
2.333.........................  2.757............  Clarifies authority
                                                    of presiding
                                                    officer, and adds
                                                    provisions on cross-
                                                    examination plans as
                                                    conforming changes.
2.334.........................  NA...............  New section setting
                                                    forth schedules for
                                                    proceedings.
2.335.........................  2.758............  Clarifies that
                                                    paragraph (a)
                                                    applies to all
                                                    adjudicatory
                                                    proceedings.
2.336.........................  NA...............  New requirement for
                                                    disclosure of
                                                    materials.
2.337.........................  2.743(c)-(f),      Consolidates
                                 (h), (i).          provisions on
                                                    evidence at hearing;
                                                    no substantive
                                                    changes.
2.338.........................  NA...............  New section on
                                                    Alternative Dispute
                                                    Resolution (ADR).
2.339.........................  2.761............  None.
2.340.........................  2.760a, 2.764....  Consolidates
                                                    provisions on
                                                    effectiveness of
                                                    initial decisions.
2.341.........................  2.786............  Clarified; codifies
                                                    Commission practice
                                                    of discretionary
                                                    review of requests
                                                    for interlocutory
                                                    appeals; modifies
                                                    provision on
                                                    exhaustion of
                                                    administrative
                                                    remedies.
2.342.........................  2.788............  Modified to include
                                                    service affected by
                                                    electronic means.
2.343.........................  2.763............  None.
2.344.........................  2.770............  None.
2.345.........................  2.771............  NRC staff not
                                                    provided additional
                                                    time to respond to
                                                    petitions for
                                                    reconsideration.
2.346.........................  2.772............  Clarified; removes
                                                    provision on
                                                    Secretary's
                                                    authority to extend
                                                    time for Commission
                                                    review of a
                                                    Director's denial
                                                    under 10 CFR
                                                    2.206(c) (now
                                                    addressed in
                                                    2.206(c)).
2.347.........................  2.780............  None.
2.348.........................  2.781............  Clarified; no
                                                    substantive change.
2.390.........................  2.790............  None.
------------------------------------------------------------------------

[[Page 2218]]

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


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

[[Page 2219]]

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

Section 2.300--Scope

    This section indicates that the provisions of this subpart apply to 
all adjudications conducted under the authority of the Atomic Energy 
Act of 1954, as amended, the Energy Reorganization Act of 1974, and 10 
CFR part 2, unless otherwise specified. Subpart C by its terms does not 
apply to adjudications conducted under the authority of other statutes 
or to adjudications provided by the NRC under other parts of title 10 
of the Code of Federal Regulations, e.g., procedures governing access 
to restricted data or national security information or employment 
clearance under 10 CFR part 10.

Section 2.301--Exceptions

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

Section 2.302--Filing of Documents

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

[[Page 2220]]

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

Section 2.303--Docket

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

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

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

Section 2.305--Service of Papers, Methods, Proof

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

Section 2.306--Computation of Time

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

Section 2.307--Extension and Reduction of Time Limits

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

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

    Section 2.308 is a ``housekeeping provision'' that describes the 
action the Secretary of the Commission would take when requests for 
hearing/petitions to intervene, contentions, answers and replies are 
received by the Secretary. Under this section, the Secretary would not 
take action on the merits or substance of the pleadings, but would 
forward the papers to the Commission or to the Chief Administrative 
Judge of the Atomic Safety and Licensing Board Panel, as appropriate, 
for further action.

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

    Section 2.309 establishes the basic requirements for all requests 
for hearing or petitions to intervene in any NRC adjudicatory 
proceeding. The section incorporates the basic standing and ``one good 
contention'' requirements of existing Sec.  2.714 and applies those 
requirements to all NRC adjudicatory proceedings, whether formal 
(Subpart G and J), informal (Subparts L and M), hybrid (Subpart K) or 
``fast track'' (Subpart N).\17\
---------------------------------------------------------------------------

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

    Standing. The requirements to establish standing for intervention, 
as set forth in existing Sec.  2.714, continues under Sec.  2.309. For 
intervention in the proceeding on the licensing of the HLW geologic 
repository, Sec.  2.309 continues the existing Subpart J requirement 
that an additional factor--relating to the petitioner's compliance with 
prehearing disclosure requirements under Subpart J--must be considered 
in any ruling on intervention. Otherwise, the Commission expects its 
boards and presiding officers to look to the ample NRC caselaw on 
standing to interpret and apply this standard. The Commission intends 
the term, ``among other things,'' in paragraph (d)(3) to mean that it 
will consider the totality of information made known to it--not just 
information submitted in the request for hearing/petition to 
intervene--in determining whether standing exists.
    Discretionary Intervention. Under this section, the presiding 
officer would consider admitting the petitioner as a matter of 
discretion where the petitioner has failed to establish his or her 
standing to intervene as-of-right, if the petitioner requests such 
consideration. In Sec.  2.309(e), the Commission codifies the 
discretionary intervention factors that were established in its Pebble 
Springs decision (Portland General Electric Co. (Pebble Springs Nuclear 
Plant, Units 1 & 2), CLI-76-27, 4 NRC 610 (1976)) and requires a 
presiding officer or Licensing Board to apply those factors in all 
cases where a petitioner is found to lack standing to intervene under 
Sec.  2.309(d) and the petitioner, in the initial petition, has asked 
for such consideration and addressed the pertinent factors. In this 
way, the Commission hopes to ``underscore the fundamental importance of 
meaningful public participation in [its] adjudicatory process.'' See N. 
States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 
2), CLI-75-1, 1 NRC 1, 2 (1975). Of these criteria, the most important 
weighing in favor of discretionary intervention is whether the person 
seeking discretionary intervention has demonstrated the capability and 
willingness to contribute to the development of the evidentiary record, 
even though they cannot show the traditional interest in the 
proceeding. The most important factor weighing against discretionary 
intervention is the potential to appropriately broaden or delay the 
proceeding.
    Timing of Requests for Hearing/Petitions to Intervene and 
Contentions. Section 2.309 establishes the requirements for the filing 
of a petition/hearing request, the content of the request, and the 
standards that must be met for a late-filed request. For those 
proceedings for which a Federal Register notice has been published, the 
requirements are much the same as those in former Sec.  2.714(a)(1), 
except that Sec.  2.309(b)(1) incorporates the twenty (20) day period 
for filing of a request for hearing/petition to intervene in license 
transfer cases governed under Subpart M (the twenty (20) day 
requirement in former Sec.  2.1306 is deleted by the final rule), Sec.  
2.309(b)(2) incorporates the thirty (30) day period for filing of a 
request for hearing/petition to intervene in proceedings for the 
licensing of a HLW geologic repository (the thirty (30) day requirement 
in former Sec.  2.1014 is deleted in the final rule), and section Sec.  
(b)(3) generally establishes a sixty (60) day period for submission of 
most requests for hearing/petitions to intervene.
    Section 2.309(b)(3)(iii) provides that where a time for submission 
is not specified in the Federal Register notice, the time period is 
sixty (60) days from the date of publication in the Federal Register.
    For proceedings in which a Federal Register notice is not 
published, the requirements in Sec.  2.309(b)(4) are derived

[[Page 2221]]

from former Sec.  2.1205 but have been supplemented to allow for 
publication of notice on the NRC Web site at http://www.nrc.gov/public-involve/major-actions.html, as providing official notice for purposes 
of Sec.  2.309(b)(4). Where Federal Register notice is not required by 
statute or regulation, any notice of agency action (for which an 
opportunity to request a hearing may be required) published on the 
portion of the NRC Web site designated as providing official notice for 
purposes of Sec.  2.309(b)(4) initiates the sixty (60) day period in 
which timely requests for hearing must be filed.
    Regardless of whether notice of the proceeding and opportunity for 
hearing is required to be published in the Federal Register, all 
proposed contentions must be filed as part of the initial request for 
hearing/petition to intervene. The final rule provides a minimum of 
sixty (60) days from the date of publication (either in the Federal 
Register or on the NRC Web site) of the notice of opportunity to 
request a hearing for the filing of requests/petitions to intervene and 
contentions, except for license transfer cases, for which a period of 
twenty (20) days is provided, initial authorization to construct a HLW 
geologic repository and the initial license to receive and posses HLW 
at a geological repository operations area, for which a period of 
thirty (30) days is provided. Late-filed requests for hearing/petitions 
are governed by the criteria set forth in Sec.  2.309(c) (formerly 
Sec.  2.714(a)(1)(i) through (v)).
    Contentions. Section 2.309(f) requires that the petition to 
intervene include the contentions that the petitioner proposes for 
litigation along with documentation and argument supporting the 
admission of the proffered contentions. Paragraphs (f)(1) and (2) of 
Sec.  2.309 incorporate the longstanding contention support 
requirements of former Sec.  2.714--no contention will be admitted for 
litigation in any NRC adjudicatory proceeding unless these requirements 
are met. Paragraph (f)(2) addresses the standards for amending existing 
contentions, or submitting new contentions based upon documents or 
other information not available at the time that the original request 
for hearing/petition to intervene was required to be filed. Paragraph 
(f)(2) incorporates the substance of existing Sec.  2.714 (b)(2)(iii) 
with regard to new or amended environmental contentions--new or amended 
environmental contentions may be admitted if the petitioner shows that 
the new or amended contention is based on data or conclusions in the 
NRC's environmental documents that differ significantly from the data 
or conclusions in the applicant's documents. Of course, new or amended 
environmental documents must be submitted promptly after the NRC's 
environmental documents are issued. For all other new or amended 
contentions the rule makes clear that the criteria in Sec.  
2.309(f)(2)(i) through (iii) must be satisfied for admission. Include 
in these standards is the requirement that it be shown that the new or 
amended contention has been submitted in a timely fashion based on the 
timing of availability of the subsequent information. See Sec.  
2.309(f)(2)(iii). This requires that the new or amended contention be 
filed promptly after the new information purportedly forming the basis 
for the new or amended contention become available. Included in these 
standards is the requirement that it be shown that the new or amended 
contention has been submitted in a timely fashion based on the 
availability of the subsequent information. See Sec.  2.302(f)(iii). 
This requires that the new or amended contention be filed promptly 
after the new information purportedly forming the basis for the new or 
amended contention becomes available. A significant change, relative to 
existing requirements, is that the requirement to proffer specific, 
adequately supported contentions in order to be admitted as a party to 
the proceeding is extended to informal proceedings under Subpart L, as 
well as Subparts K, M, and N.
    Another significant area of change is where two or more requestors/
petitioners seek to co-sponsor a contention, and where a requestor/
petitioner seeks to adopt the contention of another sponsoring 
requestor/intervenor. Under Sec.  2.309(f)(3), requestors/petitioners 
cosponsoring a contention must jointly designate a representative who 
shall have the authority to act for all requestors/petitioners. 
Similarly, if a requestor/petitioner seeks to adopt the contention of 
another sponsoring requestor/intervenor, the requestor/petitioner must 
agree that the sponsoring requestor/petitioner shall act as the 
representative with respect to that contention. If the sponsoring party 
is subsequently dismissed from the proceeding for reasons other than 
resolution of its contentions, the party who adopted the contention may 
continue to pursue the contention, or seek dismissal.
    Appropriate Hearing Procedures. Section 2.309(g) requires that the 
request for hearing/petition to intervene address the question of the 
type of hearing procedures (e.g., formal hearings under Subpart G, 
informal hearings under Subpart L, ``fast track'' informal procedures 
under Subpart N) that should be used for the proceeding. This is not a 
requirement for admission as a party to the proceeding, but a 
requestor/petitioner who fails to address the hearing procedure issue 
would not later be heard to complain in any appeal of the hearing 
procedure selection ruling. In addition, the final rule requires that 
if the requestor/petitioner asks for a formal hearing on the basis of 
Sec.  2.310(d), the request for hearing/petition to intervene must 
demonstrate, by reference to the contention and the bases provided and 
the specific procedures in Subpart G, that resolution of the contention 
necessitates resolution of material issues of fact which may be best 
determined through the use of the identified procedures.
    State and Local Governments and Affected Indian Tribes. Section 
2.309(d)(2) addresses the participation of States, local governmental 
bodies, and affected, Federally-recognized Indian Tribes as parties in 
NRC adjudicatory proceedings. The final rule continues the existing 
requirement in Sec.  2.1014(c) that a State, local governmental body, 
or affected Federally-recognized Indian Tribe who wishes to be a party 
in a HLW geologic repository proceeding must file at least one good 
contention. A significant change, relative to the former requirement in 
Sec.  2.714, is that a State, local governmental body, or affected 
Federally-recognized Indian Tribe who wishes to be a party in a 
proceeding for a facility which is located within its boundary are 
explicitly relieved of the obligation to demonstrate standing in order 
to be admitted as a party. A State, local governmental body, or 
Federally-recognized Indian Tribes who wishes to be a party in a 
proceeding for a facility which is not located within its boundary must 
address standing. However, a State, local governmental body, or 
Federally-recognized Indian Tribe which is adjacent to a facility or, 
for example, has responsibilities as an offsite government for purposes 
of emergency preparedness, and presents such information in its 
request/petition, would ordinarily be accorded standing.
    Another significant change from the requirements of former Sec.  
2.714 is that under Sec.  2.309(d)(2) each State, local governmental 
body, and Federally-recognized Indian Tribe who wishes to be a party in 
a proceeding must each designate a single representative in the 
proceeding (an analogous requirement requiring ``interested'' States, 
local governmental bodies, and Federally-recognized Indian Tribes to 
each

[[Page 2222]]

designate a representative is included in Sec.  2.315(c) of the final 
rule). Where a State's constitution provides that both the Governor and 
another State official or State governmental body may represent the 
interests of the State in a proceeding, the Governor and the other 
State official/government body will be considered separate potential 
parties. Each must separately satisfy the relevant contention 
requirement, and each must designate its own representative (that is, 
the Governor must designate a single representative, and the State 
official must separately designate a representative).
    The Commission has deleted the language in the second sentence of 
the proposed Sec.  2.309(d)(ii) regarding identifying contentions on 
which a State, local governmental body or Federally-recognized Indian 
Tribe ``wishes to participate,'' inasmuch as that provision applies 
only to ``interested'' States, local governmental bodies, and 
Federally-recognized Indian Tribes under Sec.  2.315(c).
    Answers and Replies. Section 2.309(h) allows the applicant or 
licensee and the NRC staff twenty-five (25) days to file written 
answers to requests for hearing/petitions to intervene and contentions, 
and allows the petitioner to file a written reply to the applicant/
licensee and staff answers within seven (7) days after service of any 
answer. No other written answers or replies will be entertained.
    Decision on Request/Petition. Section 2.309(i) is a new provision 
that requires the presiding officer to render a decision on each 
request for hearing/petition to intervene within forty-five (45) days 
after the filing of all answers and replies under paragraph (h) of this 
section. If additional time is needed, Sec.  2.309(i) permits the 
presiding officer to seek an extension from the Commission.

Section 2.310--Selection of Hearing Procedures

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

[[Page 2223]]

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

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

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

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

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

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

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

Section 2.315--Participation by a Person Not a Party

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

Section 2.316--Consolidation of Parties

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

Section 2.317--Separate Hearings; Consolidation of Proceedings

    This section expands upon the general concept in existing Sec.  
2.761a that separate hearings may be appropriate in certain instances. 
In addition, this section incorporates without change the provisions 
for consolidation of proceedings currently in Sec.  2.716.

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

    This section continues without change the existing provisions in 
Sec.  2.717 with respect to the commencement and termination of the 
jurisdiction of a presiding officer. A conforming change is made to 
Sec.  2.107, ``Withdrawal of application,'' to clarify that the 
Commission shall dismiss a proceeding when an application has been 
withdrawn before a notice of hearing has been issued.

Section 2.319--Power of the Presiding Officer

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

Section 2.320--Default

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

[[Page 2224]]

Section 2.321--Atomic Safety and Licensing Boards

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

Section 2.322--Special Assistants to the Presiding Officer

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

Section 2.323--Motions

    This section incorporates the substance of existing Sec.  2.730 in 
Subpart G on the general form, content, timing, and requirements for 
motions and responses to motions. The final rule departs from former 
Sec.  2.730 by establishing a ``compelling circumstances'' standard for 
evaluating motions for reconsideration. Such circumstances include the 
``existence of a clear and material error in a decision, which could 
not have reasonably been anticipated, that renders the decision 
invalid'' (this standard is also reflected in Sec.  2.345(b)). Section 
2.323 also addresses referral of rulings and certified questions by the 
presiding officer to the Commission. With regard to referrals, Sec.  
2.323(f) provides for referrals of decisions or rulings where the 
presiding officer determines that the decision or ruling involves a 
novel issue that merits Commission review at the earliest opportunity. 
Section 2.323 also differs from the existing requirements by including 
a specific provision in paragraph (f)(2) which allows any party to file 
with the presiding officer a petition for certification of issues for 
early Commission review and guidance.

Section 2.324--Order of Procedure

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

Section 2.325--Burden of Proof

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

Section 2.326--Motions To Reopen

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

Section 2.327--Official Reporter; Transcript

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

Section 2.328--Hearings To Be Public

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

Section 2.329--Prehearing Conference

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

Section 2.330--Stipulations

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

Section 2.331--Oral Argument Before the Presiding Officer

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

Section 2.332--General Case Scheduling and Management

    This section addresses general case scheduling and management. It 
requires a presiding officer to consult with the parties early in the 
proceeding in order to set schedules, establish deadlines for discovery 
and motions, where appropriate, and set the ground rules for the 
control and management of the proceeding. The section also addresses 
integration of the NRC staff's preparation of its safety and 
environmental review documents into the hearing process schedules.

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

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

Section 2.334--Schedules for Proceedings

    Section 2.334 codifies the guidance in the Commission's 1998 
Statement of Policy on the Conduct of Adjudicatory Proceedings that 
suggested that presiding officers should establish and maintain 
``milestone'' schedules for the completion of hearings and the issuance 
of initial decisions. The section requires a presiding officer to 
establish a hearing schedule, and to notify the Commission if there are 
slippages that would delay the issuance of the initial decision more 
than sixty (60) days from the date established in the schedule. The 
notification must include an explanation of the reasons for the delay 
and a description of the actions, if any, that can be taken to avoid or 
mitigate the delay.

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

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

[[Page 2225]]

Section 2.336--General Discovery

    Section 2.336 generally imposes a disclosure requirement on all 
parties except the NRC staff, whose disclosure obligations are 
addressed in 2.336(b)) in all proceedings under Part 2, except for 
proceedings using the procedures of Subparts G and J. This generally 
applicable discovery provision requires each party to disclose and/or 
provide the identity of witnesses and copies of the analysis or other 
authority upon which that person bases his or her opinion. The duty of 
disclosure continues during the pendency of the proceeding. If a 
document, data compilation, or tangible thing required to be disclosed 
is publicly available from another source such as at the NRC Web site, 
http://[email protected], and/or the NRC Public Document Room, a sufficient 
disclosure would be the location, the title and a page reference to the 
relevant document, data compilation, or tangible thing. Section 
2.336(b) sets forth the disclosure obligations of the NRC staff, 
regardless of whether it is a party. The discovery required by Sec.  
2.336 constitutes the totality of the discovery that may be obtained in 
informal proceedings. The final rule makes clear that the mandatory 
disclosure obligations of the NRC staff in Sec.  2.336 do not apply in 
Subpart J proceeding, unless the Commission, presiding officer, or 
Atomic Safety and Licensing Board specifically orders. Section 2.336 
authorizes the presiding officer to impose sanctions against parties 
who fail to comply with this general discovery provision, including 
prohibiting the admission into evidence of documents or testimony that 
a party failed to disclose as required by this section unless there was 
good cause for the failure (this sanction is similar to that provided 
in the rules of practice of the Environmental Protection Agency, 40 CFR 
22.19(a), 22.22(a)).

Section 2.337--Evidence at a Hearing

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

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

Section 2.338--Settlement of Issues; Alternate Dispute Resolution

    Section 2.338 is a new provision that consolidates and amplifies 
the previous rules pertaining to settlement (10 CFR 2.203, 2.759, 
2.1241). Section 2.338 describes the required form and content of 
settlement agreements and provides guidance on the use of settlement 
judges as mediators in NRC proceedings. The Commission intends no 
change in the bases for accepting a settlement under the new rule.

Section 2.339--Expedited Decisionmaking Procedure

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

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

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

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

    This section essentially restates former Sec.  2.786. However, 
paragraph (f) clarifies that the Commission will entertain in its 
discretion petitions by a party for review of an interlocutory matter 
in the circumstances described in paragraph (f). This is consistent 
with the current Commission practice under former Sec.  2.786. Minor 
changes are also being made to give guidance on the form and content of 
briefs. For example, the final rule increases the number of pages 
permitted for a petition for review of a decision of a presiding 
officer and any replies to the petition, from the current limit of ten 
(10) pages to twenty-five (25) pages.

Section 2.342--Stays of Decisions

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

Section 2.343--Oral Argument

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

Section 2.344--Final Decision

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

Section 2.345--Petition for Reconsideration

    This section continues largely unchanged the provisions in former 
Sec.  2.771, but no longer provides the NRC staff with two additional 
days to file a reply brief. The NRC staff would be treated as any other 
party and have ten

[[Page 2226]]

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

Section 2.346--Authority of the Secretary

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

Section 2.347--Ex Parte Communications

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

Section 2.348--Separation of Functions

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

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

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

Section 2.700--Scope of Subpart G

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

Section 2.701--Exceptions

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

Section 2.702--Subpoenas

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

Section 2.703--Examination by Experts

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

Section 2.704--Discovery--Required Disclosures

    New Sec. Sec.  2.704 and 2.705 revise the general provisions for 
discovery in Subpart G proceedings, except for discovery against the 
NRC staff. These new discovery provisions, which are analogous to the 
disclosure provisions in Sec.  2.336, provide for the prompt and open 
disclosure of relevant information by the parties, without resort to 
formal processes, unless intercession by the presiding officer becomes 
necessary. Section 2.704 sets forth the disclosures that all parties 
must make to other parties; a party need not file a request for the 
information required to be disclosed under Sec.  2.704.

Section 2.705--Discovery--Additional Methods

    Section 2.705 sets forth the additional methods of discovery that 
are permitted. It is expected that the new regulations would eliminate 
or substantially limit the need for formal discovery in adjudicatory 
proceedings, and at the same time, make explicit the presiding 
officer's authority to limit the scope and quantity of discovery in a 
particular proceeding, should the need arise.

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

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

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

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

Section 2.708--Admissions

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

Section 2.709--Discovery Against the NRC Staff

    This section consolidates former Sec. Sec.  2.720(h)(2) and 2.744, 
both of which addressed discovery against the NRC. The need for formal 
discovery against the NRC staff should be minimal, in view of the 
Commission's general policy of making all available documents public 
(see, e.g., 10 CFR 9.15), subject only to limited restrictions (e.g., 
those needed to protect enforcement, proprietary information, under 10 
CFR 9.17). Except for the foregoing, the substantive aspects of the 
former regulations are unchanged.
    Section 2.709 provides that when the NRC is a party, the Executive 
Director for Operations (EDO) will designate the NRC staff personnel to 
perform a number of functions relevant to the conduct of the 
proceeding, including answering written interrogatories and being 
witnesses for oral hearing or deposition (as applicable). As is the 
current practice, the EDO may delegate this function to a person or 
persons designated by the EDO.

[[Page 2227]]

Section 2.710--Motions for Summary Disposition

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

Section 2.711--Evidence

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

Section 2.712--Proposed Findings and Conclusions

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

Section 2.713--Initial Decision and Its Effect

    This section restates the requirements in former Sec.  2.760 
without change.
7. Subpart I--Sections 2.900-2.913
    Section 2.901 has been revised to specify that the procedures for 
handling Restricted Data and National Security Information in Subpart I 
apply to proceedings under subparts G, J, K, L, M, and N.
    The definition of ``party'' for this subpart has been amended to 
refer to Sec. Sec.  2.309 and 2.315. No substantive change is intended 
by the corrected references.
8. Subpart J--Sections 2.1000-2.1027
    The Commission is making a number of changes to Sec. Sec.  2.1000, 
2.1001, 2.1010, 2.1012, 2.1013, 2.1014, 2.1015, 2.1016, 2.1018, 2.1019, 
2.1021, and 2.1023. The changes are intended to: (1) Correct references 
to rules of general applicability in former provisions of Subpart G 
that are being transferred to Subpart C, and (2) eliminate redundant or 
duplicate provisions in Subpart J that would be covered by the 
generally applicable provisions in Subpart C. Because these are 
conforming changes, a section-by-section analysis of the revisions to 
Subpart J is not provided.
9. Subpart K--Sections 2.1101-2.1119
    Subpart K continues to be the Commission's specialized hearing 
track for contested proceedings on licenses or license amendments to 
expand spent fuel storage capacity at a civilian nuclear power plant 
site. Subpart K is to be used in conjunction with the rules of general 
applicability in Subpart C. Following is a section-by-section analysis 
of the revisions to Subpart K.

Section 2.1109--Requests for Oral Argument

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

Section 2.1111

    This section is removed and reserved for future use.

Section 2.1113--Oral Argument

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

Section 2.1117--Burden of Proof

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

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

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

Section 2.1200--Scope of Subpart

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

[[Page 2228]]

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

Section 2.1201--Definitions

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

Section 2.1202--Authority and Role of NRC Staff

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

Section 2.1203--Hearing File and Prohibition on Other Discovery

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

Section 2.1204--Motions and Requests

    Section 2.1204(a) makes clear that the provisions in Subpart C on 
motions, requests, and responses are to be applied in informal 
proceedings under Subpart L. Section 2.1204(b) allows the parties to 
request that the presiding officer permit cross-examination by the 
parties on particular contentions or issues. The presiding officer may 
allow the parties to cross-examine if he/she finds that cross-
examination is necessary for the development of an adequate record for 
decision. However, the Commission expects that the use of cross-
examination will be rare.

Section 2.1205--Summary Disposition

    Section 2.1205 provides a simplified procedure for summary 
disposition in informal proceedings. The standards to be applied in 
ruling on such motions are those set out in Subpart G.

Section 2.1206--Informal Hearings

    Section 2.1206 specifies that informal hearings under the new 
Subpart L will be oral hearings unless all the parties agree to a 
hearing consisting of written submissions (this is a significant change 
from the existing Subpart L which generally involves hearings 
consisting of written submissions). No motion to hold a hearing 
consisting of written submissions may be entertained absent unanimous 
consent of the parties.

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

    Section 2.1207 specifies the process and schedule for submissions 
and presentations in oral hearings under the revised Subpart L. This 
section addresses the sequence and timing for the submission of direct 
testimony, rebuttal testimony, statements of position, suggested 
questions for the presiding officer to ask witnesses, and post-hearing 
proposed findings of fact and conclusions of law. The section also 
contains provisions on the actual conduct of the hearing, including the 
stipulation that only the presiding officer may question witnesses.

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

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

[[Page 2229]]

addresses the sequence and timing for the submission of written 
statements of position, written direct testimony, written rebuttal 
testimony, proposed questions on the written testimony and written 
concluding statements of position on the contentions. Paragraph (a)(3) 
was revised to clarify that proposed questions may be submitted on 
written responses and rebuttal testimony filed under paragraph (a)(2), 
and that the presiding officer has the discretion whether these 
questions are to be posed to the sponsors of the responses and rebuttal 
testimony.

Section 2.1209--Findings of Fact and Conclusions of Law

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

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

    Under new Sec.  2.1210, an initial decision resolving all issues 
before the presiding officer is effective upon issuance unless stayed 
or otherwise provided by the regulations in part 2. Under Sec.  
2.1210(a), the Commission, at its discretion, will determine whether 
initial decisions which are inconsistent with any staff action taken 
under Sec.  2.1202(a) warrant Commission review. Once an initial 
decision becomes final, Sec.  2.1210(e) provides that the Secretary 
transmits the decision to the NRC staff for action in accordance with 
the decision. Section 2.1211 restates former Sec.  2.765, which 
specifies that initial decisions directing the issuance of a license or 
license amendment under Part 61 relating to land disposal of 
radioactive waste will become effective only upon the order of the 
Commission.

Section 2.1212--Petitions for Commission Review of Initial Decision

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

Section 2.1213--Applications for a Stay

    Section 2.1213 specifies the procedures for applications to stay 
the effectiveness of the NRC staff's actions on a licensing matter 
involved in a hearing under Subpart L. Applications for a stay of an 
initial decision issued under Subpart L must be filed under the stay 
provisions of Sec.  2.342 in Subpart C.
11. Subpart M--Sections 2.1300-2.1331
    Subpart M continues to be the Commission's specialized hearing 
track applicable to proceedings for the direct or indirect transfer of 
licenses for which prior NRC approval is required under governing 
statutes, the Commission's regulations, or an existing license 
condition. Subpart M is to be used in conjunction with the provisions 
of Subpart C listed in Sec.  2.1304.
    Section 2.1308 has been amended to remove provisions which are now 
covered under the generally-applicable provisions in Subpart C, but 
retains the language indicating that Subpart M hearings will ordinally 
be oral hearings unless the parties unanimously agree to a hearing 
consisting of written submissions and file a joint motion requesting a 
written hearing within 15 days of the notice or order granting a 
hearing.
    Section 2.1315 states that a license amendment for an ISFSI that is 
intended to conform the license to reflect a license transfer, involves 
``no genuine issue as to whether the health and safety of the public 
will be significantly affected.''
    Sections 2.1321, 2.1322 and 2.1331 have been amended to remove 
references to deleted sections and to reflect the fact that requests 
for hearing/petitions to intervene for proceedings under Subpart M will 
be considered under the generally applicable requirements of Sec.  
2.309 in Subpart C.
    Section 2.1323(d) provides that either the EDO or the EDO's delegee 
shall designate the NRC staff witnesses who will testify in a Subpart M 
hearing.
12. Subpart N--Sections 2.1400-2.1407
    Subpart N is a new, specialized hearing track that contains the 
Commission's ``fast track'' hearing procedures. This subpart provides 
for the expeditious resolution of issues in cases where the contentions 
are few and not particularly complex and might be efficiently addressed 
in a short hearing using simple procedures and oral presentations. 
However, this subpart may be used for more complex issues if all 
parties agree. The Commission expects that the rendering of an initial 
decision should be accomplished within about two to three months of the 
issuance of the order granting a hearing if the issues are 
straightforward and deadlines are met. Subpart N is to be used in 
conjunction with the rules of general applicability contained in 
Subpart C. The following is a section-by-section analysis of Subpart N.

Section 2.1400--Purpose and Scope

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

Section 2.1401--Definitions

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

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

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

Section 2.1403--Authority and Role of the NRC Staff

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

[[Page 2230]]

underlying regulatory matter despite the pendency of the contested 
matter before the presiding officer. In licensing proceedings, that 
explanation should ordinarily address why the public health and safety 
is protected and common defense and security is promoted despite the 
pendency of the contested matter. In no event, however, should the 
staff's explanation set forth a position on, or otherwise assume an 
advocacy position with respect to the contested matter in the 
adjudication before the presiding officer. The NRC staff's action on 
the application or matter is effective upon issuance except in 
proceedings involving an application to construct and/or operate a 
production or utilization facility, an application for the construction 
and operation of an ISFSI or an MRS at a site other than a reactor 
site, and proposed reactor licensing actions that involve significant 
hazards considerations.
    Similar to the situation in informal hearings under Subpart L, the 
NRC staff is not required to be a party in most ``fast track'' 
proceedings, but would be required to be a party in any Subpart N 
proceeding involving an application denied by the staff, an enforcement 
action proposed by the staff, or a proceeding where the presiding 
officer determines that resolution of any issue would be aided 
materially by the staff's participation as a party. In all other 
instances, the NRC staff may choose to be a party, in which case it 
must notify the presiding officer and the parties that it desires party 
status.

Section 2.1404--Prehearing Conference

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

Section 2.1405--Hearing

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

Section 2.1406--Initial Decision--Issuance and Effectiveness

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

Section 2.1407--Appeal and Commission Review of Initial Decision

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

Section 2.1500--Purpose and Scope

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

Section 2.1501--Definitions

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

Section 2.1502--Commission Decision To Hold Legislative Hearing

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

Section 2.1503--Authority of Presiding Officer

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

[[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.

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


Sec.  2.300  Scope of subpart C.

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


Sec.  2.301  Exceptions.

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


Sec.  2.302  Filing of documents.

    (a) Documents must be filed with the Commission in adjudications 
subject to this part either 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, [email protected];
    (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, [email protected]; 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://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.

    (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

[[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

* * * * *
    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
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

* * * * *
    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

[[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.

[[Page 2281]]

2073, 2167, 2201); sec. 201, as amended, 204, 88 Stat. 1242, as 
amended, 1245, sec. 1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 
5841, 5844, 2297f). Section 73.1 also issued under secs. 135, 141, 
Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C, 10155, 10161). 
Section 73.37(f) also issued under sec. 301, Pub. L. 96-295, 94 
Stat. 789 (42 U.S.C. 5841 note). Section 73.57 is issued under sec. 
606, Pub. L. 99-399, 100 Stat. 876 (42 U.S.C. 2169); sec. 1704, 112 
Stat. 2750 (44 U.S.C. 3504 note).


0
107. In Sec.  73.21, paragraph (c)(1)(vi) is revised to read as 
follows:


Sec.  73.21  Requirements for the protection of safeguards information.

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

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

0
108. The authority citation for part 75 continues to read as follows:

    Authority: Secs. 53, 63, 103, 104, 122, 161, 68 Stat. 930, 932, 
936, 937, 939, 948, as amended (42 U.S.C. 2073, 2093, 2133, 2134, 
2152, 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 
sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
    Section 75.4 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161).


0
109. In Sec.  75.12, paragraph (c) is revised to read as follows:


Sec.  75.12  Communication of information to IAEA.

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

PART 76--CERTIFICATION OF GASEOUS DIFFUSION PLANTS

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

    Authority: Secs. 161, 68 Stat. 948, as amended, secs. 1312, 
1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-
349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204, 
206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846). 
Sec 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 
1321, 1321-349 (42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 (44 
U.S.C. 3504 note).
    Sec. 76.7 also issued under Pub. L. 95-601. sec. 10, 92 Stat 
2951 (42 U.S.C. 5851). Sec. 76.22 is also issued under sec. 193(f), 
as amended, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat. 
1321, 1321-349 (42 U.S.C. 2243(f)). Sec. 76.35(j) also issued under 
sec. 122, 68 Stat. 939 (42 U.S.C. 2152) STET.


0
111. In Sec.  76.41, paragraph (b) is revised to read as follows:


Sec.  76.41  Record underlying decisions.

* * * * *
    (b) All public comments and correspondence in any proceeding 
regarding an application for a certificate must be made a part of the 
public docket of the proceeding, except as provided under 10 CFR 2.390.

0
112. In Sec.  76.70, paragraph (c)(2)(v) is revised to read as follows:


Sec.  76.70  Post-issuance.

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

0
113. In Sec.  76.72, paragraphs (a), (b), (c), and (d) are revised to 
read as follows:


Sec.  76.72  Miscellaneous procedural matters.

    (a) The filing of any petitions for review or any responses to 
these petitions are governed by the procedural requirements set forth 
in 10 CFR 2.302(a) and (c), 2.304, 2.305, 2.306, and 2.307. Additional 
guidance regarding the filing and service of petitions for review of 
the Director's decision and responses to these petitions may be 
provided in the Director's decision or by order of the Commission.
    (b) The Secretary of the Commission has the authority to rule on 
procedural matters set forth in 10 CFR 2.346.
    (c) There are no restrictions on ex parte communications or on the 
ability of the NRC staff and the Commission to communicate with one 
another at any stage of the regulatory process, with the exception that 
the rules on ex parte communications and separation of functions set 
forth in 10 CFR 2.347 and 2.348 apply to proceedings under 10 CFR Part 
2 for imposition of a civil penalty.
    (d) The procedures set forth in 10 CFR 2.205, and in 10 CFR part 2, 
subparts C, G, L and N will be applied in connection with NRC action to 
impose a civil penalty pursuant to Section 234 of the Atomic Energy Act 
of 1954, as amended, or Section 206 of the Energy Reorganization Act of 
1974 and the implementing regulations in 10 CFR part 21 (Reporting of 
Defects and Noncompliance), as authorized by section 1312(e) of the 
Atomic Energy Act of 1954, as amended.
* * * * *

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

0
114. The authority citation for part 110 continues to read as follows:

    Authority: Secs. 51, 53, 54, 57, 63, 64, 65, 81, 82, 103, 104, 
109, 111, 126, 127, 128, 129, 161, 181, 182, 183, 187, 189, 68 Stat. 
929, 930, 931, 932, 933, 936, 937, 948, 953, 954, 955, 956, as 
amended (42 U.S.C. 2071, 2073, 2074, 2077, 2092-2095, 2111, 2112, 
2133, 2134, 2139, 2139a, 2141, 2154-2158, 2201, 2231-2233, 2237, 
2239); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec 5, 
Pub. L. 101-575, 104 Stat 2835 (42 U.S.C.2243); sec. 1704, 112 Stat. 
2750 (44 U.S.C. 3504 note).
    Sections 110.1(b)(2) and 110.1(b)(3) also issued under Pub. L. 
96-92, 93 Stat. 710 (22 U.S.C. 2403). Section 110.11 also issued 
under sec. 122, 68 Stat. 939 (42 U.S.C. 2152) and secs. 54c and 
57d., 88 Stat. 473, 475 (42 U.S.C. 2074). Section 110.27 also issued 
under sec. 309(a), Pub. L. 99-440. Section 110.50(b)(3) also issued 
under sec. 123, 92 Stat. 142 (42 U.S.C. 2153). Section 110.51 also 
issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). 
Section 110.52 also issued under sec. 186, 68 Stat. 955 (42 U.S.C. 
2236). Sections 110.80-110.113 also issued under 5 U.S.C. 552, 554. 
Sections 110.130-110.135 also issued under 5 U.S.C. 553. Sections 
110.2 and 110.42 (a)(9) also issued under sec. 903, Pub. L. 102-496 
(42 U.S.C. 2151 et seq.).


0
115. In Sec.  110.73, paragraph (b) is revised to read as follows:


Sec.  110.73  Availability of NRC records.

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

    Dated at Rockville, Maryland, this 24th day of December 2003.


[[Page 2282]]


    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 04-34 Filed 1-13-04; 8:45 am]
BILLING CODE 7590-01-P