[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10781-10805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4345]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 76, No. 39 / Monday, February 28, 2011 / 
Proposed Rules  

[[Page 10781]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2, 51, and 54

[NRC-2008-0415]
RIN 3150-AI43


Amendments to Adjudicatory Process Rules and Related Requirements

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is proposing to amend its adjudicatory rules of practice. This proposed 
rule would make changes to the NRC's adjudicatory process that NRC 
believes will promote fairness, efficiency, and openness in NRC 
adjudicatory proceedings. This proposed rule would also correct errors 
and omissions that have been identified since the major revisions to 
the NRC's Rules of Practice in early 2004.

DATES: Comments on the proposed rule must be received on or before May 
16, 2011. Comments received after this date will be considered if it is 
practical to do so. However, the NRC is able to ensure consideration 
only of comments received on or before this date.

ADDRESSES: Please include Docket ID NRC-2008-0415 in the subject line 
of your comments. For instructions on submitting comments and accessing 
documents related to this action, see Section I, ``Submitting Comments 
and Accessing Information'' in the SUPPLEMENTARY INFORMATION section of 
this document. You may submit comments by any one of the following 
methods:
    Federal rulemaking Web site: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2008-0415. Address 
questions about NRC dockets to Carol Gallagher, telephone: 301-492-
3668; e-mail: [email protected].
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected]. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at 301-415-1966.
    Hand-deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852 between 7:30 a.m. and 4:15 p.m. during Federal workdays 
(telephone: 301-415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.

FOR FURTHER INFORMATION CONTACT: Tison Campbell, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-415-8579, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Submitting Comments and Accessing Information
II. Background
III. The Decision to Issue a Proposed Rule
IV. Effectiveness of the Final Rule
V. Discussion of Changes and Corrections of Errors
    A. Part 2--Title
    B. Subpart C--Sections 2.300 Through 2.390
    C. Subpart G--Sections 2.700 Through 2.713
    D. Subpart L--Sections 2.1200 Through 2.1213
    E. Subpart M--Sections 2.1300 Through 2.1331
    F. Subpart N--Sections 2.1400 Through 2.1407
    G. Other Changes
VI. Additional Issues for Public Comment
    A. Scope of Mandatory Disclosures
    B. Alternative Approaches on Interlocutory Appeals
VII. Section-by-Section Analysis
    A. Introductory Provisions--Sections 2.1 Through 2.8
    B. Subpart A--Sections 2.100 Through 2.111
    C. Subpart C--Sections 2.300 Through 2.390
    D. Subpart G--Sections 2.700 Through 2.713
    E. Subpart H--Sections 2.800 Through 2.819
    F. Subpart L--Sections 2.1200 Through 2.1213
    G. Subpart M--Sections 2.1300 Through 2.1331
    H. Subpart N--Sections 2.1400 Through 2.1407
    I. Parts 51 and 54
VIII. Plain Language
IX. Voluntary Consensus Standards
X. Environmental Impact: Categorical Exclusion
XI. Paperwork Reduction Act Statement
    Public Protection Notification
XII. Regulatory Analysis
XIII. Regulatory Flexibility Act Certification
XIV. Backfit Analysis

I. Submitting Comments and Accessing Information

    Comments submitted in writing or in electronic form will be posted 
on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov. Because your comments will not be edited to remove 
any identifying or contact information, the NRC cautions you against 
including any information in your submission that you do not want to be 
publicly disclosed. The NRC requests that any party soliciting or 
aggregating comments received from other persons for submission to the 
NRC inform those persons that the NRC will not edit their comments to 
remove any identifying or contact information, and therefore, they 
should not include any information in their comments that they do not 
want publicly disclosed.
    You can access publicly available documents related to this action 
using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Room 
O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to 
[email protected].
    Federal rulemaking Web site: Public comments and supporting 
materials related to this proposed rule can be found at http://www.regulations.gov by

[[Page 10782]]

searching on Docket ID NRC-2008-0415.

II. Background

    In a final rulemaking published in the Federal Register on January 
14, 2004, 69 FR 2181 (2004 part 2 revisions), the NRC substantially 
modified its rules of practice governing agency adjudications--Title 10 
of the Code of Federal Regulations (10 CFR) part 2. Portions of 10 CFR 
parts 1, 50, 51, 52, 54, 60, 63, 70, 72, 73, 75, 76 and 110 also were 
amended at that time. On May 11, 2004 (69 FR 25997), the NRC corrected 
errors in 10 CFR part 2, Appendix D.
    Since the new rules of practice became effective, provisions 
requiring correction or clarification of ambiguities, and several areas 
where further improvements could be achieved, have been identified. 
Therefore, the NRC is publishing this proposed rule to solicit public 
comments on proposed corrections of those errors and proposed 
improvements to the rules governing its adjudicatory proceedings. 
Participants in NRC adjudicatory proceedings who will use these rules 
should note that several revisions to 10 CFR part 2 also were adopted 
in recent years:
     Licenses, Certifications, and Approvals for Nuclear Power 
Plants (72 FR 4935; August 28, 2007) (Part 52 Rule);
     Use of Electronic Submissions in Agency Hearings (72 FR 
49139; August 28, 2007) (E-Filing Rule);
     Limited Work Authorizations for Nuclear Power Plants (72 
FR 57415; October 9, 2007);
     Delegated Authority To Order Use of Procedures for Access 
to Certain Sensitive Unclassified Information (73 FR 10978; February 
29, 2008);
     Interlocutory Review of Rulings on Requests by Potential 
Parties for Access to Sensitive Unclassified Non-Safeguards Information 
and Safeguards Information (73 FR 12627; March 10, 2008); and
     Protection of Safeguards Information (73 FR 63545; October 
24, 2008).

III. The Decision To Issue a Proposed Rule

    The amendments in this proposed rulemaking are procedural rules 
exempt from the notice and comment requirements of the Administrative 
Procedure Act (APA) and NRC regulations. 5 U.S.C. 553(b)(3)(A) and 10 
CFR 2.804(d)(1). Nonetheless, the NRC is issuing this rulemaking as a 
proposed rule for public comment in order to benefit from stakeholder 
input.

IV. Effectiveness of the Final Rule

    The new and amended requirements in the final rule would not be 
retroactively applied to presiding officer determinations and decisions 
issued prior to the effective date of the final rule (e.g., a presiding 
officer order in response to a petition or motion), nor would these 
requirements be retroactively imposed on parties, such that a party 
would have to compensate for past activities that were accomplished in 
conformance with the requirements in effect at the time, but would no 
longer meet the new or amended requirements in the final rule. Further, 
in ongoing adjudicatory proceedings if there is a dispute over an 
adjudicatory obligation or situation arising prior to the effective 
date of the new rule, such disputes would be governed by the former 
rule provisions. However, the new or amended requirements would be 
effective and govern all obligations and disputes that arise after the 
effective date of the final rule. For example, if a Board issues, prior 
to the effective date of the final rule, a scheduling order 
incorporating by reference Sec.  2.336(d), which requires parties to 
update their disclosures every 14 days, that obligation would change to 
30 days once the effective date of the rule is reached. Therefore, 
Licensing Boards should be aware of the effectiveness of the final rule 
and take the necessary steps to notify parties of their obligations 
once the final rule becomes effective.

V. Discussion of Changes and Corrections of Errors

A. Part 2--Title

    The current title of 10 CFR part 2, Rules of Practice for Domestic 
Licensing Proceedings and Issuance of Orders, does not accurately 
reflect the scope, nor does it track the language of the APA. The NRC 
is proposing a new title for 10 CFR part 2: Agency Rules of Practice 
and Procedure, which would better reflect the scope of its subparts and 
would mirror the language of the APA.

B. Subpart C--Sections 2.300 Through 2.390

    1. Section 2.305--Service of documents; methods; proof.
    Section 2.305(c)(4) currently refers to ``any paper,'' which could 
be interpreted to exclude electronic documents filed through the NRC's 
E-Filing system. The NRC is therefore proposing to clarify that a 
signed certificate of service must be included with ``any document'' 
served upon the parties in a proceeding under 10 CFR part 2. Under this 
rule, the certificate of service must include the name and address of 
each person upon whom service is being made (which for electronic 
submissions under the E-Filing system should include, at a minimum, the 
name and e-mail address used for service of each person in the E-Filing 
system service list for a proceeding upon whom service needs to be 
made) and the date and method of service. Because it is the 
responsibility of a participant submitting a document to the E-Filing 
system to comply with the service requirements, a certificate of 
service that simply states the document is being served ``per the 
service list in the E-Filing system'' without listing the names and 
addresses of each of those being served is insufficient to comply with 
Sec.  2.305(c)(4). The NRC notes that Sec.  2.304 requires that 
electronic documents be signed using a participant's digital 
certificate; in such circumstances it is not necessary to submit an 
electronic copy of the document that includes an actual signature.
    Paragraph 2.305(g)(1) does not currently provide an address for 
service upon the NRC staff when a filing is not being made through the 
E-Filing system and no attorney representing the NRC staff has filed a 
notice of appearance in the proceeding. The proposed paragraph (g)(1) 
would provide addresses to be used to accomplish service on the NRC 
staff in these circumstances.
    2. Section 2.309--Hearing requests, petitions to intervene, 
requirements for standing, and contentions.
    Section 2.309 contains the generally applicable procedures for 
requesting hearings and submitting petitions to intervene in NRC 
proceedings, and sets forth the requirements for submitting contentions 
and establishing legal standing to participate in NRC proceedings. The 
NRC is proposing to make several changes to Sec.  2.309.
    a. Section 2.309(b)--Timing.
    Section 2.309(b)(5) currently references orders issued under Sec.  
2.202, but does not reference notices of violation imposing a civil 
penalty issued under Sec.  2.205. Section 2.205 notices of violation, 
like Sec.  2.202 orders, provide ``twenty (20) days * * * or other time 
specified in the notice'' for individuals to file an answer. This 
provision does not match the 60 days allowed by Sec.  2.309(b), which 
could be interpreted as applying to Sec.  2.205 notices of violation. 
The proposed Sec.  2.309(b)(5) would correct this omission by adding a 
reference to Sec.  2.205 to reflect that notices of violation issued in 
Sec.  2.205 civil penalty proceedings have timing requirements similar 
to those of Sec.  2.202 orders.

[[Page 10783]]

    b. Sections 2.309(c) and (f)--Subsequent Submission of Petition/
Request or New or Amended Contentions.
    Current Sec.  2.309(c)(1) contains eight balancing factors that 
determine whether to grant or admit ``nontimely'' hearing requests, 
intervention petitions, or contentions. These factors include the three 
factors for standing--also found at Sec.  2.309(d)(1)(ii) through 
(iv)--and the following five factors: Good cause for the failure to 
file on time; the availability of other means to protect the 
requestor's or petitioner's interest; the extent to which the 
requestor's or petitioner's interest will be represented by other 
parties; the extent to which the requestor's or petitioner's interest 
will broaden the issues or delay the proceeding; and the extent to 
which the requestor's or petitioner's participation may reasonably be 
expected to assist in developing a sound record. The ``good cause'' 
factor is given the most weight, and ``[i]f a petitioner cannot show 
good cause, then its demonstration on the other factors must be 
`compelling.''' Dominion Nuclear Connecticut, Inc. (Millstone Nuclear 
Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 564-65 (2005) 
(footnote with citation omitted).
    Good cause is not defined in the regulations, but has been defined 
by the NRC in case law as a showing that the petitioner ``not only * * 
* could not have filed within the time specified in the notice of 
opportunity for hearing, but also that it filed as soon as possible 
thereafter.''  Id. In addition, Sec.  2.309(f)(2) identifies three 
factors to be considered in determining whether to admit a new or 
amended contention. These factors include whether the new or amended 
contention is based on information that was not previously available. 
For example, if a document has not been prepared and is referred to as 
a forthcoming document, the appropriate time to file a contention based 
upon the document is after its publication. The two remaining factors 
in Sec.  2.309(f)(2) include whether the information that was not 
previously available is materially different from information that was 
previously available, and whether the new or amended contention has 
been submitted in a timely fashion after the availability of the new 
information. The Sec.  2.309(f) three factor test appears to be a 
specific application of the case law definition of ``good cause.''
    Thus, in practice, the admissibility of late-filed contentions 
usually depends on whether good cause is found. A showing that many of 
the other factors support the admission of a late-filed contention is 
rarely sufficient to overcome a lack of good cause. See, e.g., Private 
Fuel Storage (Independent Spent Fuel Storage Installation), LBP-00-28, 
52 NRC 226, 239-240 (2000) and Tennessee Valley Authority (Watts Bar 
Nuclear Plant, Unit 2), CLI-10-12, ---- NRC ---- (Mar. 26 2010) (slip 
op.) (the Commission noted that ``it would be a rare case where we 
would excuse a non-timely petition absent good cause'') Id. at 2. And 
in other cases, the NRC's determination on the existence of good cause 
appears to turn on one or two factors unique to that proceeding, with a 
generic recitation or cursory acknowledgement of the other factors and 
how they offset each other. See, e.g., Crow Butte Resources (North 
Trend Expansion Project) LBP-08-06, 67 NRC 241, 259-260 (2008).
    The proposed rule would simplify the requirements governing 
requests for hearing, intervention petitions, or new or amended 
contentions filed after the deadlines in Sec.  2.309(b) by: (1) Making 
good cause the sole factor to be considered when evaluating whether to 
review the admissibility of a new or amended contention, petition, or 
hearing request; (2) defining good cause as those factors currently in 
Sec.  2.309(f)(2)(i) through (iii); (3) adding clarifying information 
regarding the need to address interest and standing; and (4) referring 
to ``nontimely'' contentions as ``new or amended.'' Although we would 
no longer use the terms ``late-filed'' or ``nontimely'' and would use 
the term ``new or amended'' to refer to contentions filed after the 
initial filing date for contentions had expired, the current NRC case 
law would continue to be applied in ruling on those requests.
    The proposed amendments to Sec.  2.309 would apply the good cause 
factor to all filings after the initial filing deadline and would adopt 
the current Sec.  2.309(f)(2)(i) through (iii) factors as the standards 
to be applied when evaluating whether good cause exists. This change 
would simplify the review of filings after the deadlines in Sec.  
2.309(b). These changes would allow the parties, participants, and the 
presiding officer to focus their resources on the most relevant 
questions related to the admissibility of new or amended contentions 
(i.e., whether good cause exists and whether the contentions meet the 
admissibility requirements of Sec.  2.309(f)).
    Section 2.309(c)(1) would require a requestor or petitioner to 
provide a justification supporting the filing after the deadlines in 
Sec.  2.309(b), consisting of ``good cause'' as defined in Sec.  
2.309(c)(2). Paragraph (c)(2) would treat the three criteria for 
considering new or amended contentions that are currently contained in 
paragraph (f)(2) as the factors that must be considered under the good 
cause determination of proposed paragraph (c)(1). The NRC believes that 
the factors in current Sec.  2.309(f)(2)(i) through (iii) are a useful, 
specific application of ``good cause.'' Presiding officers should 
evaluate whether a filing after the deadlines in Sec.  2.309(b) 
satisfies the factors in Sec.  2.309(c)(2)(i) through (iii) to 
determine whether a petitioner has demonstrated good cause.
    Proposed paragraph (c)(3) would make clear that, apart from 
demonstrating good cause, a petitioner seeking admission to the 
proceeding after the deadlines in Sec.  2.309(b) would need to satisfy 
standing and contention admissibility requirements. Paragraph (c)(4) 
would apply to a participant or a party who seeks admission of a new or 
amended contention, and who has already satisfied the standing 
requirements in Sec.  2.309(d).
    This revision would, in part, adopt a line of reasoning first 
proposed by an Atomic Safety and Licensing Board in the Vermont Yankee 
power uprate proceeding; the Board concluded that new or amended 
contentions filed after the initial filing need not satisfy the Sec.  
2.309(c)(1) factors if the Sec.  2.309(f)(2)(i) through (iii) factors 
are met. Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear 
Power Station), LBP-05-32, 62 NRC 813 (2005). The NRC believes that 
this should be the appropriate standard for presiding officers to apply 
when evaluating whether good cause exists.
    The NRC invites comments on the effect (if any) of eliminating the 
other late-filing factors and relying solely on good cause. As 
discussed above, case law has shown that good cause is given the most 
weight when evaluating new or amended contentions, and absent good 
cause, the other factors must be--but are rarely found to be--
compelling. Would limiting the late-filing criteria to good cause have 
a detrimental effect on a petitioner's ability to have new or amended 
contentions admitted? How often, without showing good cause, have 
petitioners been able to rely on the other factors to meet the 
requirements of Sec.  2.309(c)? Should the NRC consider removing only 
some of the other late-filing requirements? If so, which ones?
    c. Section 2.309(d)--Standing.
    Section 2.309(d) sets forth the standing requirements and also 
contains some requirements that do not generally relate to standing. To 
clarify and to better articulate the generally applicable standing 
requirements, several revisions to Sec.  2.309(d) are being proposed. 
The

[[Page 10784]]

general standing criteria in Sec.  2.309(d)(1) would remain the same. A 
revised Sec.  2.309(d)(2) would adopt the requirements of the first 
sentence of current Sec.  2.309(d)(3), which requires the presiding 
officer to consider the paragraph (d)(1) factors when determining 
whether the petitioner has an interest affected by the proceeding. 
Revised paragraph (d)(3) would retain the existing provision that in 
enforcement proceedings the licensee or other person against whom the 
action is taken is deemed to have standing. Current Sec.  2.309(d)(2) 
contains special requirements for States, local governmental bodies, 
and Federally-recognized Indian Tribes that seek status as parties in 
proceedings. But some of these requirements (e.g., the need to propose 
one or more contentions; the need to designate a single representative) 
do not relate to standing. The present Sec.  2.309(d)(2) provisions 
would be revised and would be moved to a new Sec.  2.309(h), which is 
discussed in the next section.
    d. Section 2.309(d)(2) moved to 2.309(h)--State, local governmental 
body, and Federally-recognized Indian Tribe.
    As stated, the present Sec.  2.309(d)(2) provisions for government 
participation, which do not contain generally applicable standing 
requirements like the rest of Sec.  2.309, would be revised and moved 
to a new Sec.  2.309(h). The proposed Sec.  2.309(h)(1), based on the 
existing Sec.  2.309(d)(2)(i), would require any State, local 
governmental body or Federally-recognized Indian Tribe seeking to 
participate as a party to submit at least one admissible contention. 
This section would also include the requirement that each governmental 
entity designate a single representative for the hearing. If a request 
for hearing or petition to intervene were granted, the NRC would admit 
as a party 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 Federally-recognized Indian Tribe, as 
applicable. This proposed section would also require, as provided in 
the statement of considerations for the 2004 part 2 revisions, that:

    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). (69 FR 
2182, 2222; January 14, 2004).

    The proposed Sec.  2.309(h)(2) would be based on the existing Sec.  
2.309(d)(2)(ii), which states that in any potential proceeding for a 
facility (the term ``facility'' is defined in Sec.  2.4) located within 
its boundaries, the State, local governmental body or Federally-
recognized Indian Tribe seeking party status need not further establish 
its standing. As revised, proposed Sec.  2.309(h)(1) and (h)(2) would 
delete the word ``affected'' from the phrase ``Federally-recognized 
Indian Tribe.'' The use of ``affected'' in this context is proper only 
in a high-level radioactive waste disposal proceeding. For the same 
reason, the NRC proposes to remove ``affected'' from Sec.  2.315(c) 
(regarding interested government participation) and from the definition 
of ``Participant'' added to Sec.  2.4 in the E-Filing Rule (August 28, 
2007; 49139, 49149). Existing Sec.  2.309(d)(2)(iii) would be 
redesignated as Sec.  2.309(h)(3).
    e. Section 2.309(h) moved to 2.309(i)--Answers to requests for 
hearing and petitions to intervene; Replies to answers.
    The present Sec.  2.309(h), governing the filing of answers and 
replies to hearing requests and petitions to intervene, would be 
redesignated as Sec.  2.309(i) and would be further revised. The 
current Sec.  2.309(h)(1) refers to ``proffered contentions,'' the 
preamble of current Sec.  2.309(h) limits paragraph (h) to filing 
deadlines for hearing requests and intervention petitions, and there is 
no clear reference to contentions submitted after the initial filing. 
The NRC believes that the same deadlines should apply to answers and 
replies for new or amended contentions as apply to intervention 
petitions and hearing requests filed after the deadlines in Sec.  
2.309(b). The NRC is therefore proposing to amend this section to 
include answers and replies to requests to admit new or amended 
contentions after the initial filing. Because this change would cover 
all filings after the deadlines in Sec.  2.309(b), the reference to 
``proffered contentions'' in paragraph (h)(1) (proposed paragraph 
(i)(1)) would no longer be necessary and would be removed. The 
reference in current paragraph (h)(1) to ``paragraphs (a) through (g)'' 
would be changed to ``paragraphs (a) through (h)'' due to the addition 
of proposed new paragraph (h).
    f. Section 2.309(i) moved to new 2.309(j)--Decision on request/
petition.
    The current Sec.  2.309(i) would be redesignated as Sec.  2.309(j). 
The redesignated Sec.  2.309(j) would contain a new citation reference 
made necessary by the new Sec.  2.309(h). Also, proposed Sec.  2.309(j) 
would be revised to provide that if the presiding officer cannot issue 
a decision on each request for hearing or petition to intervene within 
45 days of the conclusion of the pre-hearing conference, the presiding 
officer shall issue a notice advising the Commission and the parties as 
to when the decision will issue. If no pre-hearing conference is 
conducted, the 45-day period begins after the filing of answers and 
replies under Sec.  2.309(i).
    3. Section 2.311--Interlocutory review of rulings on requests for 
hearings/petitions to intervene, selection of hearing procedures, and 
requests by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.
    Section 2.311(b) allows parties to appeal orders of the presiding 
officer to the Commission concerning a request for hearing, petition to 
intervene, or a request to access SUNSI or SGI within ten days after 
the service of the order. Any party who opposes the appeal may file a 
brief in opposition within ten days after service of the appeal. 
Experience has demonstrated that the filing time provided under this 
section is unnecessarily short, and sometimes results in superficial 
appellate briefs. Most adjudicatory bodies allow substantially more 
time for litigants to frame appellate arguments and to perform the 
necessary research and analysis. Well-considered briefs enable the 
appellate body, here the Commission, to make faster and better-reasoned 
decisions. The NRC is therefore proposing to extend the time to file an 
appeal and a brief in opposition to an appeal from ten to 25 days. The 
NRC does not expect the proposed change in appeal deadlines to result 
in any delays in licensing. For one thing, higher-quality briefs should 
expedite appellate decision-making. Moreover, most of the appellate 
litigation at the NRC is preliminary to any final licensing decisions; 
it takes place before the NRC staff finishes its safety and 
environmental reviews and generally does not affect the timing of those 
reviews.
    4. Section 2.314--Appearance and practice before the Commission in 
adjudicatory proceedings.
    Paragraph 2.314(c)(3) allows anyone disciplined under Sec.  
2.314(c) to file an appeal with the Commission within ten days after 
issuance of the order. Experience since the 2004 revisions of part 2 
has demonstrated that ten days frequently is not adequate for parties 
to prepare quality appeals. The NRC is therefore proposing to extend 
the time to file an appeal of an order disciplining

[[Page 10785]]

a party from ten to 25 days. The NRC believes that extending the time 
for appeals will result in higher-quality appeals.
    5. Section 2.315--Participation by a person not a party.
    Current Sec.  2.315(c) allows interested State, local governmental 
bodies, and Federally-recognized Indian Tribes that have not been 
admitted as parties under Sec.  2.309 a reasonable opportunity to 
participate in hearings. The NRC is proposing to amend Sec.  2.315(c) 
to clarify that States, local governmental bodies, or Federally-
recognized Indian Tribes that are allowed to participate in hearings 
take the proceeding as they find it, consistent with longstanding NRC 
case law. See, e.g., Pacific Gas and Electric Co. (Diablo Canyon 
Nuclear Power Plant, Units 1 and 2), ALAB-600, 12 NRC 3, 8 (1980); Long 
Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-
13, 17 NRC 469, 471-72 (1983), citing 10 CFR 2.714(c) (current 
2.315(c)); Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nuclear 
Station), LBP-80-6, 11 NRC 148, 151 (1980).
    6. Section 2.319--Power of the presiding officer.
    As part of the 2004 revisions to part 2, the NRC eliminated 
``redundant or duplicate provisions in Subpart J that would be covered 
by the generally applicable provisions in Subpart C'' (69 FR 2212; 
January 14, 2004). Section 2.319(l) would be updated to clarify the 
scope of the power of the presiding officer to refer rulings or certify 
questions to the Commission, consistent with the change to Sec.  2.323, 
discussed in the next section.
    7. Section 2.323--Motions.
    The NRC proposes to amend Sec.  2.323(f) to clarify the criteria 
for referrals in this paragraph, and to make the referral criteria 
consistent with the Commission's standards for consideration of such 
referrals. The criterion on ``prompt decision * * * necessary to 
prevent detriment to the public interest or unusual delay or expense'' 
would be removed to make clear that this criterion concerns the prompt 
decision of the Commission. The second criterion on ``the decision or 
ruling involves a novel issue that merits Commission review'' would be 
revised to make clear that: (1) This criterion concerns the presiding 
officer's decision, and (2) the presiding officer's decision must raise 
or create ``significant and novel'' issues that may be either ``legal 
or policy'' in nature.
    8. Section 2.335--Consideration of Commission rules and regulations 
in adjudicatory proceedings.
    Section 2.335 details the procedures through which a challenge to 
the Commission's regulations may be raised as part of an adjudicatory 
proceeding. The current text of the rule limits these challenges to ``a 
party to an adjudicatory proceeding,'' which would seem to exclude 
petitioners from challenging the Commission's regulations. The 
Commission recognizes that challenges to the Commission's regulations 
are frequently contained in petitions to intervene and requests for 
hearing. Further, the Commission recognizes that petitioners may have a 
legitimate interest in raising such challenges before they are granted 
party status and that Atomic Safety and Licensing Boards have allowed 
petitioners to raise these concerns before being admitted as parties. 
See, e.g., Carolina Power and Light Co. (Shearon Harris Nuclear Power 
Plant, Unit 1), LBP-07-11, 66 NRC 41, 57-58 (2007).

    Also, a contention that challenges any Commission rule is 
outside the scope of the proceeding because, absent a waiver, `no 
rule or regulation of the Commission * * * is subject to attack * * 
* in any adjudicatory proceeding.' Similarly, any contention that 
amounts to an attack on applicable statutory requirements must be 
rejected by a licensing board as outside the scope of the 
proceeding. A petitioner may, however, within the adjudicatory 
context submit a request for waiver of a rule under 10 CFR 2.335, 
and outside the adjudicatory context file a petition for rulemaking 
under 10 CFR 2.802 or a request that the NRC Staff take enforcement 
action under 10 CFR 2.206. Id. (citations omitted).

    The NRC is therefore proposing to amend this section to clarify 
that, in accordance with NRC practice, ``participants to an 
adjudicatory proceeding,'' not just parties, may seek a waiver or an 
exception for a particular proceeding.
    9. Section 2.336--General Discovery.
    Section 2.336(d) currently requires parties to update their 
mandatory disclosures every 14 days. Experience with adjudications 
since early 2004 has demonstrated that the current disclosure 
provisions are much more burdensome for litigants than was initially 
anticipated. Part of the burden is the frequency of required updates to 
the mandatory disclosures. The NRC is therefore proposing to replace 
the requirement to disclose information or documents within 14 days of 
discovery with a continuing duty to provide a disclosure update every 
30 days. The Commission is also considering an alternative timeline to 
the proposed rule for disclosure updates. Like the proposed rule, this 
approach would require disclosure updates every thirty days, but, as 
specified hearing milestones approach, this would mirror the 14-day 
disclosure requirements of the current version of Sec.  2.336(d). This 
hearing-sensitive timeline would mitigate the burdens of the current 
rule, while preserving the utility of more frequent disclosure updates 
as hearing milestones approach.
    Each update under the proposed versions of Sec.  2.336(d) would 
include documents subject to disclosure under this section that have 
not been disclosed in a prior update and that are developed, obtained, 
or discovered during the period that runs from five business days 
before the last disclosure update to five business days before the 
filing of the update. It is anticipated that this change to Sec.  
2.336(d) would reduce the burden and increase the robustness of updated 
disclosures. The NRC also proposes to add a sentence to the end of 
Sec.  2.336(d), stating that the duty of mandatory disclosure with 
respect to new information or documents relevant to a contention ends 
when the presiding officer issues a decision on that contention, or 
when otherwise specified by the presiding officer or the Commission.
    10. Section 2.340--Initial decision in certain contested 
proceedings; immediate effectiveness of initial decisions; issuance of 
authorizations, permits, and licenses.
    Sections 2.340(a) and (b) currently imply that the presiding 
officer must reach a decision prior to the issuance of a license or 
license amendment. But this is not necessarily the case. For operating 
licenses associated with production and utilization facilities, both 
the Atomic Energy Act and the NRC's regulations allow for the issuance 
of a license amendment upon a determination of ``no significant hazards 
consideration.'' See, e.g., 42 U.S.C. 2239, 10 CFR 50.91. Further, 
subparts L and N of 10 CFR part 2 allow the staff to act on an 
application, including an application for an initial or renewed 
operating license or operating license amendment, and in proceedings 
for an initial license or license amendment not involving a production 
and utilization facility, prior to the completion of any contested 
hearing, assuming that all other relevant regulatory requirements are 
met. 10 CFR 2.1202(a), 2.1210(c)(3), and 2.1403(a). The NRC is 
proposing to revise Sec.  2.340 to clarify that production and 
utilization facility applications--for an initial license, a renewed 
license, or a license amendment where the NRC has made a determination 
of no significant hazards consideration--could be acted upon prior to 
the completion of a contested hearing. The NRC also would make 
conforming amendments to paragraphs

[[Page 10786]]

(d) and (e) of this section to clarify that in proceedings involving a 
manufacturing license under subpart C of 10 CFR part 52, and in 
proceedings not involving production and utilization facilities, the 
NRC staff--provided it is able to make all of the necessary findings 
associated with the licensing action--may act on a license, permit, or 
license amendment prior to the completion of a contested hearing.
    Finally, this section would be amended to clarify that the 
presiding officer could make findings of fact and conclusions of law on 
any matter not put into controversy by the parties, but only to the 
extent that the presiding officer determines that a serious safety, 
environmental or common defense and security matter exists, and only to 
the extent the Commission, upon a required referral by the presiding 
officer, approves an examination of and decision on the referred 
matters.
    11. Section 2.341--Review of decisions and actions of a presiding 
officer.
    a. Section 2.341(b)--Petitions for review.
    Section 2.341 contains requirements pertaining to the review of 
decisions and actions of a presiding officer by the Commission. Current 
Sec.  2.341(b)(1) allows parties to file a petition for review of a 
full or partial initial decision by a presiding officer or any other 
decision or action by a presiding officer with respect to which a 
petition for review is authorized by this part. Under the current 
regulations a petition for review must be filed with the Commission 
within 15 days of service of the decision. Similarly, Sec.  2.341(b)(3) 
allows other parties to file an answer supporting or opposing 
Commission review within ten days after service of a petition for 
review. And the petitioning party is allowed to file a reply brief 
within five days of service of any answer. Experience has demonstrated 
that the time the NRC's rules allow for petitions for review of an 
order of a presiding officer (15 days) is unnecessarily short, and 
sometimes results in superficial appellate briefs. Most adjudicatory 
bodies allow substantially more time for litigants to frame appellate 
arguments and to perform the necessary research and analysis. Well-
considered briefs enable the appellate body, here the Commission, to 
make faster and better-reasoned decisions. The NRC is therefore 
proposing to extend the time to file a petition for review and an 
answer to the petition from ten to 25 days. The NRC also is proposing 
to extend the time to file a reply to an answer from five to ten days.
    The NRC does not expect the proposed change in appeal deadlines to 
result in any unnecessary delays in licensing. For one thing, higher-
quality briefs should expedite appellate decisionmaking. Moreover, most 
of the appellate litigation at the NRC is preliminary to any final 
licensing decisions; it takes place before the NRC staff finishes its 
safety and environmental reviews and generally does not affect the 
timing of those reviews. Finally, even when a final presiding officer 
decision approving a license comes before the Commission on a petition 
for review, the license can be issued immediately, notwithstanding the 
pendency of a petition for review. See 10 CFR 2.340(f), 2.341(e).
    b. Section 2.341(c)--Petitions for review not acted upon deemed 
denied.
    As stated in the 2004 part 2 revisions, Sec.  2.341 was intended to 
essentially restate the provisions of former Sec.  2.786 (See 69 FR 
2225; January 14, 2004). But the provisions of former Sec.  2.786(c), 
under which petitions for Commission review not acted upon were deemed 
denied, were inadvertently omitted from Sec.  2.341. Accordingly, the 
NRC proposes to add a new Sec.  2.341(c)(1); existing Sec.  2.341(c)(1) 
would be redesignated as Sec.  2.341(c)(2), and existing Sec.  
2.341(c)(2) would be redesignated as Sec.  2.341(c)(3). Proposed Sec.  
2.341(c)(1) would adopt the deemed denied provisions of the former 
Sec.  2.786(c) with the exception of the 30-day time limit, which would 
be extended to allow 120 days for Commission review. As a practical 
matter, the 30-day timeframe has necessitated extensions of time in 
most proceedings, as the prescribed briefing period comprehends 30 
days. A 120-day Commission review period would allow for sufficient 
time to review the filings at the outset, without the unintended 
consequence of the frequent need for extensions. The NRC therefore is 
proposing to adopt the deemed denied provisions of former Sec.  2.786 
with a 120-day time limit as a new Sec.  2.341(c)(1).
    c. Section 2.341(a)--Time to act on a petition for review.
    Section 2.341(a)(2) currently provides the Commission with 40 days 
to act on a decision of a presiding officer or a petition for review. 
The current 40-day timeframe has necessitated extensions of time in 
most proceedings, as the prescribed briefing period comprehends 30 
days, often leaving the Commission insufficient time for an effective 
review of the filings. As discussed above with respect to the ``deemed 
denied'' provision, a 120-day Commission review period provides for a 
reasonable period to review the filings without the unintended 
consequence of the frequent need for extensions. The NRC therefore is 
proposing to extend the time for Commission review from 40 days to 120 
days. As has always been the case, the Commission may act before that 
time or extend that period as it deems necessary.
    d. Section 2.341(f)--Standards for Atomic Safety Licensing Board 
certifications and referrals.
    The NRC proposes to revise paragraph (f) of this section to address 
a perceived inconsistency in the standards for Atomic Safety Licensing 
Board certifications and referrals to the Commission and Commission 
review of these issues. Section 2.323(f) currently allows a presiding 
officer to refer a ruling to the Commission if 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. Current Sec.  2.341(f) states that referred or 
certified rulings ``will be reviewed'' by the Commission only if the 
referral or certification ``raises significant and novel legal or 
policy issues, and resolution of the issues would materially advance 
the orderly disposition of the proceeding'' (emphasis added). This 
language has been interpreted as allowing the Commission to accept 
referrals or certifications only if both standards in Sec.  2.341(f) 
are met, even though Sec.  2.323(f) allows a presiding officer to refer 
or certify a question or ruling if either of the comparable criteria in 
Sec.  2.323(f) is met. Tennessee Valley Authority (Bellefonte Nuclear 
Power Plant, Units 3 and 4), CLI-09-3, 69 NRC 68, 72 (2009). The 
proposed revision to Sec.  2.341(f) would provide the Commission with 
maximum flexibility by allowing, but not requiring, the Commission to 
review an issue if it raises significant legal or policy issues, or if 
resolution of the issue would materially advance the orderly 
disposition of the proceeding, or if both standards are met.
    12. Section 2.346--Authority of the Secretary.
    Currently, Sec.  2.346(j) authorizes the Secretary to ``[t]ake 
action on minor procedural matters.'' Since 2004, experience with the 
subpart C hearing procedures has shown that greater efficiencies could 
be achieved if the Secretary is given explicit authority to take action 
on more than minor procedural matters. The NRC is therefore proposing 
to authorize the Secretary to ``take action on procedural or other 
minor matters.'' This change would allow the Secretary to take action 
on a variety of non-substantive

[[Page 10787]]

procedural matters, such as motions raising matters that do not 
explicitly fit within the Secretary's existing authority (e.g., a 
motion to suspend a hearing notice or the unopposed withdrawal of 
construction and operating license applications). Time is frequently of 
the essence on some minor matters; requiring Commission orders and 
affirmation sessions can sometimes result in undesirable delay in 
issuing needed procedural directives because of the need to schedule 
affirmation sessions. Accordingly, the NRC is proposing to amend Sec.  
2.346(j) to give the Secretary the authority to ``take action on 
procedural or other minor matters.'' The NRC is also proposing removing 
the reference to Sec.  2.311 in paragraph (e). Requests for review 
under Sec.  2.311 are termed ``appeals'' rather than ``petitions for 
review.'' Moreover, there are no deadlines for Commission action on 
appeals under Sec.  2.311.
    13. Section 2.347--Ex parte communications.
    Section 2.347 prohibits what are known as ex parte communications 
between persons outside the NRC and NRC adjudicatory personnel on 
matters relevant to the merits of an ongoing hearing; this section 
currently applies to Sec.  2.204 demands for information. Unlike the 
NRC actions subject to Sec. Sec.  2.104(a), 2.105(e)(2), 2.202(c), 
2.205(e) and 2.312 (which would continue to be referenced in Sec.  
2.347(e)(1)(i) and (ii)), hearing rights do not attach to a demand for 
information because it is not an order; it is a pre-enforcement 
document requesting information. 56 FR 40663, 40670, 40682; August 15, 
1991. The NRC is therefore proposing to amend the ex parte 
communication provisions in Sec.  2.347(e)(1)(i) and (ii) by deleting 
the two references to Sec.  2.204. Formerly, Sec.  2.204 pertained to 
orders for modification of licenses and orders to show cause, and these 
orders did involve the right to a hearing. (50 FR 38113; September 20, 
1985). Thus, when Sec.  2.780--the precursor to Sec.  2.347--was 
established in 1988, the references to Sec.  2.204 were proper. But in 
1991 the references became erroneous when the provisions for orders for 
modification of licenses were deleted and replaced by the Sec.  2.204 
provisions regarding demands for information. Accordingly, the NRC is 
proposing conforming changes to Sec.  2.347(e)(1)(i) and (ii).
    14. Section 2.348--Separation of functions.
    The separation of functions provisions in Sec.  2.348 prohibit 
certain communications between specified sets of NRC personnel on 
matters relevant to the merits of an ongoing adjudicatory hearing. 
Similar to the Sec.  2.347 proposal discussed above, the NRC is 
proposing to correct the separation of functions provisions in Sec.  
2.348(d)(1)(i) and (ii) by deleting the two references to Sec.  2.204. 
As explained above, unlike the other specified NRC actions, hearing 
rights do not attach to a demand for information. When Sec.  2.781--the 
precursor to Sec.  2.348--was established in 1988, the references to 
Sec.  2.204 were proper. But the references became erroneous in 1991 
for the reasons stated above with respect to Sec.  2.347(e)(1)(i) and 
(ii). Accordingly, the NRC is now proposing the conforming changes to 
Sec.  2.348(d)(1)(i) and (ii).

C. Subpart G--Sections 2.700 through 2.713

    1. Section 2.704--Discovery--required disclosures.
    Sections 2.704(a) through (c) set forth the required disclosures 
that parties other than the NRC staff must make in formal NRC 
adjudications. To conform with the timing provisions of Sec.  2.336(d), 
a change in Sec.  2.704(a)(3) is being proposed. Presently, Sec.  
2.704(a)(3) requires that the initial disclosures be made within 45 
days after a prehearing conference order following the initial 
prehearing conference specified in Sec.  2.329. And Sec.  2.704(e) 
requires a party that has made a disclosure under Sec.  2.704 to 
supplement its disclosure if the party learns that in some material 
respect the information disclosed was incomplete or incorrect (provided 
the additional or new information was not made available to other 
parties during the discovery process or in writing). In addition, with 
respect to the testimony of an expert from whom a report is required 
under Sec.  2.704(b), the duty to supplement under Sec.  2.704(e) 
extends to both the information contained in the report and provided 
through a deposition of the expert. The proposed Sec.  2.704(a)(3) 
would require that unless otherwise stipulated or directed by order of 
the presiding officer, a party's initial disclosures must be made 
within 30 days of the order granting a hearing and that parties must 
provide disclosure updates every 30 days. Each update would include 
documents subject to disclosure under this section that have not been 
disclosed in a prior update, and that are developed, obtained, or 
discovered during the period that runs from the last disclosure update 
to 5 business days before the filing of the update.
    2. Section 2.705--Discovery--additional methods.
    Section 2.705(b)(2) allows the presiding officer to ``alter the 
limits in these rules on the number of depositions and 
interrogatories.'' But the rules do not limit the number of depositions 
or interrogatories. The NRC is therefore proposing to amend this 
section to allow the presiding officer to set reasonable limits on the 
number of interrogatories and depositions. This proposed change would 
remove the confusion in this section and improve the efficiency of NRC 
adjudicatory proceedings.
    3. Sections 2.709--Discovery against NRC staff and 2.336--General 
Discovery.
    a. Sections 2.709(a)(6)--Required initial disclosures in 
enforcement proceedings and 2.336--General Discovery.
    The NRC is proposing to amend the NRC staff's mandatory disclosure 
obligations for enforcement proceedings conducted under subpart G of 10 
CFR part 2. The current regulation that applies to these proceedings, 
Sec.  2.336, requires the disclosure of documents that are outside of 
the scope of the enforcement proceeding, which results in the inclusion 
of many unrelated documents in the mandatory disclosures. Therefore, 
the NRC is proposing to amend Sec.  2.336(b) to remove subpart G 
enforcement proceedings from the general discovery requirements; a 
corresponding amendment would be made to Sec.  2.709 to specify the 
staff's disclosure obligations in a subpart G enforcement proceeding. 
This amended section would limit the scope of the staff's disclosures 
to documents relevant to disputed issues alleged with particularity in 
the pleadings. Not only would these amended disclosure requirements 
benefit the NRC staff (by reducing the resources necessary to review, 
prepare, and provide the required documents), but they would also aid 
the other parties to the proceeding (by reducing the number of 
documents they need to review to only documents that are relevant to 
the issues in the proceeding).
    Further, this disclosure requirement would parallel the initial 
document disclosure requirement in Sec.  2.704(a)(2) for parties other 
than the NRC staff. Although parties other than the NRC staff are also 
required by Sec.  2.704(a)(1) to identify individuals likely to have 
discoverable information relevant to disputed issues, the NRC considers 
a similar disclosure requirement for the NRC staff to be unnecessary. 
The discoverable portions of any pertinent Office of Investigations 
report or related inspection report should identify many of the 
individuals likely to have discoverable information relevant to 
disputed issues.

[[Page 10788]]

    Proposed Sec.  2.709(a)(6)(i) would also require that if a claim of 
privilege or protected status is made by the NRC staff for any 
documents, a list of these documents must be provided with sufficient 
information for assessing the claim of privilege or protected status. 
Finally, proposed Sec.  2.709(a)(6)(ii) would require the NRC staff to 
provide disclosure updates every 30 days. Each update would include 
documents subject to disclosure under this section that have not been 
disclosed in a prior update and that are developed, obtained, or 
discovered during the period that runs from 5 business days before the 
last disclosure update to 5 business days before the filing of the 
update, as would be required of other parties by proposed Sec.  
2.704(a)(3).
    b. Section 2.709(a)(7)--Form and type of NRC staff disclosures.
    Proposed Sec.  2.709(a)(7) would specify the manner in which the 
NRC staff may disclose information in subpart G proceedings. For 
publicly available documents, data compilations, or other tangible 
things, the NRC staff's duty to disclose such information to the other 
parties and the presiding officer would be met by identifying the 
location, the title, and a page reference to the subject information. 
If the publicly available documents, data compilations, or other 
tangible things can be accessed at either the NRC Web site, http://www.nrc.gov, or at the NRC Public Document Room, the staff would 
provide the parties and the presiding officer with any citations 
necessary to access this information. This addition parallels Sec.  
2.704(a)(2) for disclosures by parties other than the NRC Staff.

D. Subpart L--Sections 2.1200 Through 2.1213

    1. Subpart L--Title.
    Subpart L of 10 CFR part 2 contains the adjudicatory procedures 
that the NRC uses to conduct most of its licensing proceedings. The 
procedures in subpart L were substantially revised in 2004 (69 FR 2182; 
January 14, 2004), and are intended to be used with the generally 
applicable provisions in subpart C of 10 CFR part 2. Under the 
provisions of 10 CFR part 2 as revised in 2004, a hearing conducted 
under subpart L meets the APA requirements for an ``on the record'' or 
``formal'' hearing. Citizens Awareness Network, Inc. v. NRC, 391 F.3d 
338, 351 (2004). This is true despite the fact that the NRC also 
provides more formal adjudicatory procedures under subpart G of part 2. 
However, the title of subpart L was not revised in 2004 to reflect the 
changed (i.e., less formal) character of its procedures. To eliminate 
any confusion caused by the current title of subpart L, the NRC 
proposes to revise the title of subpart L to ``Simplified Hearing 
Procedures for NRC Adjudications.'' The revised title would reflect 
that these proceedings are less formal than the formal part 2 subpart G 
hearings, but are still formal ``on the record'' hearings under the 
APA, and not ``informal'' hearings as might be inferred from the 
current title.
    2. Section 2.1202--Authority and role of NRC staff.
    Section 2.1202 pertains to the authority and role of the NRC staff 
in less formal hearings. The introductory text of Sec.  2.1202(a) could 
be erroneously interpreted as suggesting that the staff is required to 
advise the presiding officer on the merits of contested matters. The 
NRC proposes to revise Sec.  2.1202(a) to require that in subpart L 
proceedings the staff's notice to parties regarding relevant staff 
licensing actions must include an explanation of why both the public 
health and safety is protected and the action is in accord with the 
common defense and security, despite the ``pendency of the contested 
matter before the presiding officer.''
    A conforming change to the introductory text of Sec.  2.1403(a) 
also is being proposed to require the NRC staff to provide this 
explanation when the same situation arises in subpart N proceedings.
    3. Sections 2.1205 and 2.710--Summary disposition; Motions for 
summary disposition; Authority of the presiding officer to dispose of 
certain issues on the pleadings.
    The summary disposition motion requirements in Sec.  2.1205 do not 
require the inclusion of a statement of material facts. Before the 2004 
amendments to 10 CFR part 2, the NRC's requirements governing motions 
for summary disposition required these motions to be accompanied by a 
``separate, short and concise statement of material facts as to which 
the moving party contends that there is no genuine issue to be heard.'' 
When the summary disposition motion requirements were included in the 
hearing procedures in 10 CFR part 2, subpart L, the requirement for a 
statement of material facts was inadvertently omitted from Sec.  
2.1205. Proposed Sec.  2.1205 would restore the requirement for a 
statement of material facts for which the moving party contends that 
there is no genuine issue. This section would not include the 
requirement for a ``separate'' statement of material facts in dispute, 
as the rule already requires that the statement be ``attached'' to the 
motion. The NRC is proposing a conforming change to Sec.  2.710 to 
remove the word, ``separate,'' which would ensure that Sec. Sec.  2.710 
and 2.1205 are identical in this regard.
    4. Section 2.1209--Findings of fact and conclusions of law.
    Section 2.712(c) specifies the format for proposed findings of fact 
and conclusions of law in subpart G proceedings, but a similar format 
provision does not exist in subpart L. The NRC, therefore, is proposing 
to amend Sec.  2.1209 by adding the format requirements now contained 
in Sec.  2.712(c). These format requirements would aid presiding 
officers in subpart L proceedings by ensuring that proposed findings of 
fact and conclusions of law clearly and precisely communicate the 
parties' positions on the material issues in the proceeding, with exact 
citations to the factual record.
    5. Section 2.1213--No significant hazards consideration 
determinations not subject to stay provisions.
    The proposed amendment to Sec.  2.1213 would add a new paragraph 
(f). The proposed paragraph would exclude from the stay provisions 
matters limited to whether a no significant hazards consideration 
determination for a power reactor license amendment was proper. No 
significant hazards consideration determinations may be made in license 
amendment proceedings for production or utilization facilities that are 
subject to the 10 CFR part 50 requirements; challenges to these 
determinations are not allowed in accordance with 10 CFR 50.58(b)(6). 
Excluding no significant hazards consideration determinations from the 
stay provisions also is consistent with Federal case law holding that 
these findings are final agency actions, which are not appealable to 
the Commission. Center for Nuclear Responsibility, Inc. v. U.S. Nuclear 
Regulatory Comm'n, 586 F.Supp. 579, 580-81 (D.DC 1984).

E. Subpart M--Sections 2.1300 Through 2.1331

    The following changes are being proposed to subpart M of 10 CFR 
part 2, which sets forth the procedures that are applicable to hearings 
on license transfer applications.
    1. Sections 2.1300 and 2.1304--Provisions governing hearing 
procedures for subpart M hearings.
    Section 2.1300 states that the provisions of subpart M, together 
with subpart C, govern all adjudicatory proceedings on license 
transfers, but current Sec.  2.1304 states that the procedures in 
subpart M ``will constitute the exclusive basis for hearings on license 
transfer applications.'' Section 2.1304, part of the original subpart 
M, was effectively replaced by Sec.  2.1300 in

[[Page 10789]]

the 2004 part 2 revisions, and could have been removed as part of that 
rulemaking. The NRC is now proposing to remove Sec.  2.1304 and amend 
Sec.  2.1300 to clarify that, in subpart M hearings on license 
transfers, both the generally applicable intervention provisions in 
subpart C and the specific subpart M hearing procedures govern.
    2. Section 2.1316--Authority and role of NRC staff.
    Section 2.1316(c) provides the procedures for the NRC staff to 
participate as a party in subpart M hearings. These procedures would be 
updated to mirror the requirements of Sec.  2.1202(b)(2) and (3), which 
set forth the NRC staff's authority and role in subpart L hearings. 
Proposed Sec.  2.1316(c)(1) would require the NRC staff--within 15 days 
of the issuance of an order granting requests for hearing or petitions 
to intervene and admitting contentions--to notify the presiding officer 
and the parties whether it desires to participate as a party in the 
proceeding. If the staff decides to participate as a party, its notice 
would identify the contentions on which it will participate as a party. 
If the NRC staff later desires to be a party, the NRC staff would 
notify the presiding officer and the parties, and identify the 
contentions on which it wished to participate as a party, and would 
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. Once the NRC staff chooses to 
participate as a party in a subpart M license transfer proceeding, it 
would have all the rights and responsibilities of a party with respect 
to the admitted contention or matter in controversy on which the staff 
chose to participate. As with Sec.  2.1202, ``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.'' (69 FR 2228; January 14, 2004).

F. Subpart N--Sections 2.1400 Through 2.1407

    Section 2.1407--Appeal and Commission review of initial decision.
    Current Sec.  2.1407(a)(1) allows parties to appeal orders of the 
presiding officer to the Commission within 15 days after the service of 
the order. Similarly, Sec.  2.1407(a)(3) allows parties that are 
opposed to an appeal to file a brief in opposition within 15 days of 
the filing of the appeal. Experience has demonstrated that the time the 
NRC's rules allow for appeals from an order of a presiding officer is 
unnecessarily short, and sometimes results in superficial appellate 
briefs. Most adjudicatory bodies allow substantially more time for 
litigants to frame appellate arguments and to perform the necessary 
research and analysis. Well-considered briefs enable the appellate 
body, here the Commission, to make faster and better-reasoned 
decisions. The NRC is therefore proposing to extend the time to file an 
appeal and a brief in opposition to an appeal from 15 to 25 days. The 
NRC does not expect the proposed change in appeal deadlines to result 
in any delays in licensing. For one thing, higher-quality briefs should 
expedite appellate decision-making. Moreover, most of the appellate 
litigation at the NRC is preliminary to any final licensing decisions; 
it takes place before the NRC staff finishes its safety and 
environmental reviews and generally does not affect the timing of those 
reviews.

G. Other Changes

    1. Section 2.4--Definitions.
    The current definition of ``Participant'' applies to an 
``individual or organization,'' and does not explicitly apply to 
governmental entities that have petitioned to intervene in a 
proceeding. The NRC proposes to correct this definition by adding a 
parenthetical reference to ``individual or organization'' so that it 
reads: ``individual or organization (including governmental 
entities).''
    The current definition of ``NRC personnel'' in Sec.  2.4 contains 
outdated references to Sec. Sec.  2.336 and 2.1018. The proposed 
revision of ``NRC personnel'' would update this definition by removing 
references to Sec. Sec.  2.336 and 2.1018, neither of which references 
the term ``NRC personnel.''
    2. Section 2.101--Filing of application.
    In 2005, Sec.  2.101 was amended to remove paragraph (e) and 
redesignate (f) and (g) as paragraphs (e) and (f). (70 FR 61887; 
October 27, 2005) The internal references to paragraph (g) were not 
updated to reflect the new paragraph designations. References in this 
section to Sec.  2.101(g) would be corrected to reference Sec.  
2.101(f). There are no references to former Sec.  2.101(f) in this 
section.
    3. Section 2.105--Notice of proposed action.
    Proposed Sec.  2.105 would make three changes to the current 
regulation: (1) The introductory text of paragraph (a) would be revised 
by inserting a reference to the NRC's Web site; (2) The introductory 
text of paragraph (b) would be clarified by specifying that the 
referenced notice pertains to one published in the Federal Register; 
and, (3) The introductory text of paragraph (d) would be corrected to 
reference the time period stated in Sec.  2.309(b).
    4. Section 2.802--Petition for rulemaking.
    The proposed Sec.  2.802(d), in accordance with the proposed 
definition of ``Participant'' in Sec.  2.4 and the proposed amendment 
to the procedures for challenging the NRC's regulations in Sec.  2.335, 
would replace the word ``party'' with ``participant.''
    5. Corrections of other outdated and incorrect references.
    Section 51.102(c) contains an outdated reference to ``Subpart G of 
Part 2.'' The reference would be corrected to refer generally to part 
2. Also, the reference to the former Atomic Safety and Licensing Appeal 
Board would be removed from Sec.  51.102.
    Sections 51.4, 51.34, 51.109(f), and 51.125 contain outdated 
references to the former Appeal Board, which would be removed from 
these sections.
    6. Section 54.27--Hearings.
    Section 54.27 (pertaining to license renewal hearings for nuclear 
power reactors) contains an outdated reference to a 30-day period to 
request a hearing. As discussed in the 2004 part 2 revisions, except 
for license transfer and HLW proceedings, the time in which to request 
a hearing was extended to 60 days from the date a notice of opportunity 
for hearing is published (either in the Federal Register or on the 
NRC's Web site). (January 4, 2004; 69 FR 2200). The proposed Sec.  
54.27 would be corrected to reflect the proper 60-day period to request 
a hearing, and a reference to 10 CFR 2.309 would be added. The proposed 
Sec.  54.27 would retain the provision that in the absence of any 
hearing requests, a renewed operating license may be issued without a 
hearing upon 30-day notice and publication in the Federal Register.
    7. Part 2--Rules of Practice for Domestic Licensing Proceedings and 
Issuance of Orders.
    Throughout 10 CFR part 2, the terms ``Presiding Officer'' and 
``presiding officer'' are used interchangeably, but with different 
capitalization, unlike 10 CFR part 51, which uses the term ``presiding 
officer'' uniformly without capitalization. This proposed rule would 
change all references to the term ``Presiding Officer'' to ``presiding 
officer'' to bring 10 CFR part 2 into conformance with 10 CFR part 51.

VI. Additional Issues for Public Comment

A. Scope of Mandatory Disclosures

    Section 2.336 contains the general procedures governing disclosure 
of information before a hearing in

[[Page 10790]]

contested NRC adjudicatory proceedings. The NRC is soliciting public 
comment on whether it should revise the Sec.  2.336 mandatory 
disclosures to focus the staff's disclosure obligations under Sec.  
2.336(b)(3) on documents related to the parties' admitted contentions. 
Section 2.336(b) contains the NRC staff's mandatory disclosure 
obligations. Specifically, under Sec.  2.336(b)(3) the NRC staff must 
disclose all documents supporting the staff's review of the application 
or proposed action that is the subject of the proceeding without regard 
to whether the documents are relevant to the admitted contentions.
    The 2004 revision to part 2 imposed mandatory disclosure provisions 
on all parties that were intended to reduce the overall discovery 
burden in NRC adjudicatory proceedings. The NRC is concerned that this 
has not been the case and that the overall discovery burden has not 
been reduced. The NRC believes that the primary source of the burden 
stems from the disclosure of hundreds or thousands of documents by the 
NRC staff that are unrelated to any admitted contention; disclosure of 
voluminous material by the staff also burdens other parties to the 
proceeding with searching through hundreds or thousands of unrelated 
documents to find the material that is relevant to the issues in 
dispute (other parties' disclosures are already limited to documents 
relevant to the admitted contentions; the staff's disclosures are not).
    All parties also are required to produce privilege logs (a list of 
discoverable documents that are not being disclosed because the party 
asserts a privilege to protect the documents). Due to the large number 
of documents that are captured by the current regulations, the NRC 
staff must prepare a log of privileged documents, most of which are 
entirely unrelated to the contentions. Limiting the disclosure 
obligations to the issues in dispute would reduce the number of 
documents produced by the NRC staff, and also would provide the other 
parties to the proceeding with a list of relevant documents that were 
withheld, which would make it easier for the parties to identify any 
withheld documents that they may seek to obtain. This change would also 
align the scope of the NRC staff's disclosure obligations with those of 
the other parties to the proceeding. At the same time, the parties' 
opportunity to obtain publicly available documents would not be 
affected, as these proposed changes would not affect the full scope of 
documents that will be available to parties and other members of the 
public through ADAMS.
    The NRC is also seeking comments on whether it should add a new 
requirement to the end of Sec.  2.336(d) to clarify that the duty of 
mandatory disclosure with respect to new information or documents 
relevant to a contention ends when the presiding officer issues a 
decision on that contention or when specified by the presiding officer 
or the Commission.
1. Specific Questions for Public Comment
    (a) Would applying NRC staff disclosures under Sec.  2.336(b)(3) to 
documents related only to the admitted contentions aid parties other 
than the NRC staff by reducing the scope of documents they receive and 
review through the mandatory disclosures?
    (b) Is the broad disclosure obligation imposed on the NRC staff by 
current Section 2.336(b) warranted in light of (a) the other parties' 
more limited disclosure obligations and (b) the parties' ability to 
find these same documents in an ADAMS search?
    (c) Would a shorter, more relevant privilege log aid parties to the 
proceeding?
    (d) Would potential parties prefer to maintain the status quo?
    (e) Would limiting the mandatory disclosures of documents as 
described in Federal Rule of Civil Procedure 26(a)(1)(A)(ii) be the 
preferred option?
2. Draft Rule Text That Would Limit the Scope of NRC Staff's Mandatory 
Disclosures
     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 must, within 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 make available 
the following documents:
    [cir] The application and applicant or licensee requests associated 
with the application or proposed action that is the subject of the 
proceeding;
    [cir] NRC correspondence (including e-mail) with the applicant or 
licensee associated with the application or proposed action that is the 
subject of the proceeding;
    [cir] 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 are 
relevant to the contentions that have been admitted into the 
proceeding;
    [cir] 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. Documents representing the NRC staff's 
determination include published NRC reports and published draft or 
final environmental impact statements or environmental assessments; and
    [cir] 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.

B. Alternative Approaches on Interlocutory Appeals

    The NRC is seeking public comments as to whether to amend 10 CFR 
part 2 regarding interlocutory review of rulings by a presiding officer 
granting or denying a request for hearing or intervention petition, 
including late-filed requests or petitions. Currently, Sec.  2.311(c) 
effectively allows the requestor or petitioner to appeal an order 
wholly denying an intervention petition or request for hearing. 
Therefore, if the presiding officer grants the intervention petition 
and denies the admissibility of one or more proposed contentions, the 
petitioner may not appeal the denial of any proposed contentions until 
the presiding officer issues a final decision at the end of the 
proceeding. Conversely, any party other than the petitioner may 
immediately appeal the order on the grounds that the requestor or 
petitioner lacks standing or that all of their proposed contentions 
were inadmissible. Although this basic scheme for interlocutory review 
of intervention petitions and requests for hearing has been in place 
since 1972 (see 37 FR 28710; December 29, 1972), there have been some 
suggestions that a change to the current practice might be warranted to 
either provide earlier appellate review of contention admissibility or, 
alternatively, to discourage frivolous appeals. The NRC is considering 
two options for a potential amendment. The NRC requests comment on the 
options and on the possible rule language that would implement each 
option, including comments on the resource implications of both options 
for all parties and for the Commission.

[[Page 10791]]

Option 1
    The first option would amend Sec.  2.311(c) and (d) to allow any 
party to appeal an order granting a request for hearing or petition to 
intervene in whole or in part within 25 days of the presiding officer's 
issuance of the order. This amendment would effectively allow all 
parties to immediately appeal rulings on the admissibility of any 
particular contention (including late-filed contentions).
    The potential advantage of amending Sec.  2.311 is that it allows 
early resolution of contention admissibility issues. Specifically, it 
eliminates the possibility that, after a Board has issued its final 
order in the proceeding, the Commission on appeal will remand the 
proceeding to the Board for consideration of a contention that the 
Commission has determined should have been admitted and thereby prolong 
the proceeding. Consistent with the general principles applied by 
courts and agencies that favor limited interlocutory review, the 
disadvantages of departing from the current practice under Sec.  2.311 
include the potential increase in the Commission's appellate workload 
at the early stage of a proceeding and the attention given to matters 
that it may prove unnecessary to address at all if a party decides not 
to pursue the matter at the conclusion of the proceeding or if further 
developments, such as settlement, obviate the need to address the 
admissibility question. This amendment would not alter a party's 
ability to appeal orders on the question of standing.
Option 2
    The second option would delete Sec.  2.311(d)(1) in order to remove 
the right of parties other than the petitioner to appeal orders 
granting an intervention petition. This would leave all parties with 
the same appellate rights, including the right to seek interlocutory 
review under Sec.  2.341(f)(2). The potential advantage of this option 
is that it would reduce the Commission's appellate workload by removing 
any incentive for parties other than the petitioner to oppose all 
proffered contentions solely to preserve their right to appeal. The 
main disadvantage would be removing the means by which an early 
determination can be made as to the proper admission of some 
contentions.

VII. Section-by-Section Analysis

A. Introductory Provisions--Sections 2.1 Through 2.8

    Section 2.4--Definitions.
    This section would modify the definition of Participant in Sec.  
2.4, which currently applies to individuals or organizations that 
petition to intervene or request a hearing, but are not yet parties. 
The new definition would clarify that any individual or organization--
including States, local governments, and Federally-recognized Indian 
Tribes--that petitions to intervene or requests a hearing shall be 
considered a participant. Further, Federally-recognized Indian Tribes 
do not have to be ``affected'' Federally-recognized Indian Tribes to 
participate in NRC licensing actions. ``Affected'' is reserved for 
Federally-recognized Indian Tribes that seek to participate in the 
high-level waste proceeding; it does not apply to the NRC's other 
licensing actions. The current definition also indicates that States, 
local governmental bodies, or affected Federally-recognized Indian 
Tribes that seek to participate under Sec.  2.315(c) shall be 
considered participants. This section does not grant these governmental 
bodies Sec.  2.315(c) participant status; this status is only obtained 
when the interested governmental body is afforded the opportunity to 
participate in the proceeding by the presiding officer. Governmental 
bodies that have requested Sec.  2.315(c) participant status, but have 
not yet been granted or denied such status by the presiding officer, 
are only entitled to participate in a proceeding as a Sec.  2.4 
participant. This section also would modify the definition of ``NRC 
personnel,'' which contains outdated references to Sec. Sec.  2.336 and 
2.1018; the proposed revision would remove these references.''

B. Subpart A--Sections 2.100 Through 2.111

    1. Section 2.101--Filing of application.
    This section would be amended to correct references to Sec.  
2.101(g), which should reference Sec.  2.101(f). These changes would 
not alter the meaning or intent of this regulation.
    2. Section 2.105--Notice of proposed action.
    This section would be updated to include a reference to the NRC's 
Web site. Paragraph (b) of this section would be updated to clarify 
that the referenced ``notice'' is one that is published in the Federal 
Register, and paragraph (d) would be amended to include a reference to 
the time period included in Sec.  2.309(b).

C. Subpart C--Sections 2.300 Through 2.390

    1. Section 2.305--Service of documents; methods; proof.
    Section 2.305, which currently requires any paper served in an NRC 
proceeding to include a signed certificate of service, would be amended 
to clarify that a signed certificate of service must be filed with any 
document filed with the NRC. Under Sec.  2.304(d)(1) persons submitting 
electronic documents to the NRC through the E-Filing system do not need 
to physically sign their documents; signature with a participant's 
digital ID certificate satisfies the requirement that a document be 
signed.
    Section 2.305(g)(1), which does not currently provide an address 
for service upon the NRC staff when a filing is not being made through 
the E-Filing system and no attorney representing the NRC staff has 
filed a notice of appearance, would be updated to provide participants 
with an address to use in these circumstances.
    2. Section 2.309--Hearing requests, petitions to intervene, 
requirements for standing, and contentions.
    a. Section 2.309(b)--Timing.
    Section 2.309(b), which does not provide a time for answers to 
Sec.  2.205(c) orders, would be amended to clarify that recipients of 
Sec.  2.205(c) orders have the time specified in the order to file 
their answers.
    b. Section 2.309(c) and (f)--Subsequent Submission of Petition/
Request or New or Amended Contentions.
    Section 2.309(c) would be updated to consolidate the nontimely 
filing requirements and to clarify the intent of the regulations. 
Amended Sec.  2.309(c) would incorporate the Sec.  2.309(f)(2)(i) 
through (iii) factors into amended Sec.  2.309(c)(2)(i) through (iii) 
as the factors to be considered in evaluating a filing after the 
deadlines in Sec.  2.309(b). Thus, unlike the current requirement where 
both the Sec.  2.309(c) and Sec.  2.309(f)(2) factors must be 
individually addressed, the proposed amendment incorporates the Sec.  
2.309(f)(2) factors into amended Sec.  2.309(c)(2)(i) through (iii). 
Meeting these three factors would provide sufficient justification for 
the filing after the deadlines in Sec.  2.309(b). Section 
2.309(c)(2)(i) would require the requestor or petitioner to demonstrate 
that the information upon which the new or amended contention is based 
was not previously available. The phrase ``not previously available'' 
in this paragraph means that a requestor or petitioner cannot base a 
contention on a document or a report that does not yet exist. For 
example, if at the time of requestor or petitioner's filing, an agency 
or organization was working on a report scheduled for publication in 
six months, the requestor or petitioner could not anticipate this 
publication and rely on the report in the submission

[[Page 10792]]

of contentions. Also, Sec.  2.309(c)(2)(ii) would require the 
information that supports the filing after the deadlines in Sec.  
2.309(b) to be materially different from information previously 
available. And Sec.  2.309(c)(2)(iii) would require a requestor or 
petitioner to submit this filing in a timely fashion based on the 
availability of the subsequent information. But this interpretation 
does not mean that a petitioner or requestor could not submit a filing 
after the publication of a report, provided that the report contains 
information that meets both the filing criteria in Sec.  2.309(c) and 
the admissibility criteria in Sec.  2.309(f).
    Section 2.309(c)(3) would clarify that any new or amended 
intervention petition must include new or amended contentions if the 
petitioner seeks admission as a party, and requires a petitioner to 
meet the standing and admissibility requirements in Sec. Sec.  2.309(d) 
and (f); a petitioner that has already satisfied the Sec.  2.309(d) 
standing requirements would not have to do so again.
    Section 2.309(c)(4) would require any new or amended contentions 
filed by a party to meet the admissibility requirements in Sec.  
2.309(f), and would clarify that a party or a participant who has 
already demonstrated standing does not need to satisfy the standing 
requirements in Sec.  2.309(d) again.
    Section 2.309(c)(5) would clarify that new or amended contentions 
arising under the National Environmental Policy Act also must meet the 
filing requirements of Sec.  2.309(c)(1) through (c)(2).
    c. Section 2.309(h)--Requirements applicable to States, local 
governmental bodies, and Federally-recognized Indian Tribes seeking 
party status.
    Paragraphs (d)(2)(i) and (ii) apply only to ``affected'' Federally-
recognized Indian Tribes, which is only proper in the context of a 
high-level radioactive waste disposal proceeding. Proposed Sec.  
2.309(h), which is the current Sec.  2.309(d)(2), would be revised to 
clarify that, in the case of Sec.  2.309(h)(1) and (2), any Federally-
recognized Indian Tribe that wishes to participate in any potential 
proceeding for a facility located within its boundaries does not need 
to further establish its standing. Section 2.309(h)(3), which is the 
current Sec.  2.309(d)(2)(iii), would only apply to a high-level waste 
disposal proceeding and would retain the references to affected 
Federally-recognized Indian Tribes; the references in this section 
would mirror the language used in the Sec.  2.1001 definition of Party.
    3. Section 2.311--Interlocutory review of rulings on requests for 
hearings/petitions to intervene, selection of hearing procedures, and 
requests by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.
    Proposed Sec.  2.311(b) would extend the time to file an appeal and 
a brief in opposition to an appeal from ten to 25 days.
    4. Section 2.314--Appearance and practice before the Commission in 
adjudicatory proceedings.
    Proposed Sec.  2.314(c)(3) would extend the time to file an appeal 
to an order disciplining a party from ten to 25 days.
    5. Section 2.315--Participation by a person not a party.
    Proposed Sec.  2.315(c) would clarify that interested States, local 
government bodies, and Federally-recognized Tribes, who are not parties 
admitted to a hearing under Sec.  2.309 and seek to participate in the 
hearing, must take the proceeding as they find it. Consistent with NRC 
case-law, Sec.  2.315(c) participants would not be able to raise issues 
related to contentions or issues that were resolved prior to their 
entry as Sec.  2.315(c) participants in the proceeding--if a State, 
local governmental body, or Federally-recognized Indian Tribe chooses 
to participate in a proceeding late in the process, their participation 
is subject to any orders already issued and should not interfere with 
the schedule established for the proceeding.
    6. Section 2.319--Power of the presiding officer.
    Proposed Sec.  2.319(r) would reincorporate former Sec.  2.1014(h) 
without any changes to the original language or intent. This section 
would require that an admitted contention that constitutes pure issues 
of law, as determined by the presiding officer, must be decided on the 
basis of briefs or oral argument.
    7. Section 2.323--Motions.
    Proposed Sec.  2.323(f) would allow the presiding officer to 
independently, or in response to a petition from a party, certify 
questions or refer rulings to the Commission if the issue satisfies one 
of the two Sec.  2.323(f)(1) criteria. In each case, the presiding 
officer would make the initial determination as to whether the issue or 
petition raises significant and novel legal or policy issues, or if 
prompt decision by the Commission is necessary to materially advance 
the orderly disposition of the proceeding.
    8. Section 2.335--Consideration of Commission rules and regulations 
in adjudicatory proceedings.
    Section 2.335 limits the requests for waivers or exceptions from 
NRC regulations to parties to a proceeding. Proposed Sec.  2.335 would 
clarify that participants to an adjudicatory proceeding, including 
petitioners, may seek a waiver or exception to the NRC's regulations 
for a particular proceeding. This change would adopt the NRC's practice 
of allowing petitions to intervene and requests for hearing to contain 
Sec.  2.335 requests for waivers or exceptions from the NRC's 
regulations.
    9. Section 2.336--General Discovery.
    This section, which currently requires an update within 14 days of 
obtaining or discovering disclosable material, would be amended to 
require the filing of a mandatory disclosure update every 30 days. 
These updates would include all disclosable documents and information 
developed during the period that runs from five business days before 
the last disclosure update to 5 business days before the filing of the 
update. Parties not disclosing any documents or information are 
expected to file an update informing the presiding officer and the 
other parties that no documents or information are being disclosed. The 
duty of mandatory disclosure with respect to new information or 
documents relevant to a contention would end when the presiding officer 
issues a decision on that contention, or as specified by the presiding 
officer or the Commission.
    10. Section 2.340--Initial decision in certain contested 
proceedings; immediate effectiveness of initial decisions; issuance of 
authorizations, permits, and licenses.
    Proposed Sec.  2.340 would clarify that in some circumstances the 
NRC may act on a license, a renewed license, or on a license amendment 
prior to the completion of any contested hearing.
    Paragraphs (a) and (b) concern construction and operating licenses, 
renewed licenses, combined licenses, and amendments to these licenses. 
These paragraphs would be amended to clarify that, in the case of a 
license amendment involving a power reactor, the NRC may complete 
action on the amendment request without waiting for the presiding 
officer's initial decision once the NRC makes a determination that the 
amendment involves no significant hazards consideration. In initial 
power reactor licensing cases and in cases where the NRC has not made a 
determination of no significant hazards consideration, these paragraphs 
would be amended to clarify that the NRC may not act on the application 
until the presiding officer issues an initial decision in the contested 
proceeding.
    Paragraph (c), which deals with initial decisions under 10 CFR 
52.103(g), would be amended to clarify that the presiding officer may 
make findings of

[[Page 10793]]

fact and conclusions of law on the matters put into controversy by the 
parties, and any matter designated by the Commission to be decided by 
the presiding officer. Further, the amended paragraph would clarify 
that matters not put into controversy by the parties shall be referred 
to the Commission for its consideration. The Commission could, in its 
discretion, treat any of these referred matters as a request for action 
under Sec.  2.206 and would process the matter in accordance with Sec.  
52.103(f).
    Paragraphs (d) and (e), which concern manufacturing licenses under 
10 CFR part 52 and proceedings not involving production or utilization 
facilities, would be amended to clarify that the NRC will issue, deny, 
or condition any permit, license, or amendment in accordance with a 
presiding officer's initial decision. These paragraphs also would be 
amended to clarify that the NRC may issue a license amendment before a 
presiding officer's initial decision becomes effective.
    This proposed revision would clarify that in all cases the 
presiding officer is limited to matters placed into controversy by the 
parties, and serious matters not put into controversy by the parties 
that concern safety, common defense and security, or the environment 
and that are referred to, and consideration of which is approved by, 
the Commission.
    11. Section 2.341--Review of decisions and actions of a presiding 
officer.
    a. Extension of time to file a petition for review, answer, and 
reply.
    Proposed Sec.  2.341(b) would extend the time to file a petition 
for review and an answer to a petition from 15 to 25 days, and the time 
to file a reply to an answer from five to ten days.
    b. Petitions for Commission review not acted upon deemed denied.
    Section 2.341 would reincorporate the ``deemed denied'' provision 
of former Sec.  2.786(c), with an additional 90 days for Commission 
review before petitions for review are deemed denied. The additional 90 
days would allow the Commission 120 days of review time before a 
petition for review is deemed denied.
    Similarly, the time for the Commission to act on a decision of a 
presiding officer or a petition for review would be expanded to 120 
days to bring this section into alignment with the new timeline in 
proposed Sec.  2.341(c)(1).
    c. Interlocutory review.
    Section 2.341(f) would allow, but not require, the Commission to 
review certifications or referrals that meet any of the standards in 
this paragraph.
    12. Section 2.346--Authority of the Secretary.
    This proposed section would make explicit the Secretary's authority 
under Sec.  2.346(j), which is currently limited to minor procedural 
matters, to include non-minor procedural matters--such as the unopposed 
withdrawal of construction and operating license applications--which 
would avoid the need for formal Commission orders and affirmation 
sessions to issue procedural directives. Also, the reference in 
paragraph (e) to Sec.  2.311 has been removed because appeals under 
Sec.  2.311 do not have, associated with them, deadlines for Commission 
action.
    13. Sections 2.347 and 2.348--Ex parte communications; Separation 
of functions.
    These sections currently reference Sec.  2.204 demands for 
information, which are not orders and do not entail hearing rights. 
Because demands for information are not adjudicatory matters, the 
restrictions on ex parte communications and the separation of functions 
limitations do not apply. The references to Sec.  2.204 would be 
removed from both sections.

D. Subpart G--Sections 2.700 Through 2.713

    1. Section 2.704--Discovery--required disclosures.
    This section, which currently requires initial disclosures to be 
made within 45 days after the issuance of a prehearing conference order 
following the initial prehearing conference, would be amended to 
require the filing of a mandatory disclosure update every 30 days. 
These updates would include all disclosable documents and information 
obtained up to 5 business days before the disclosure update. Any 
documents or information obtained or developed during the period that 
runs from the last disclosure update to 5 business days before the 
filing of the update would be included in the next update. Parties not 
disclosing any documents or information are expected to file an update 
informing the presiding officer and the other parties that no documents 
or information are being disclosed.
    2. Section 2.705--Discovery--additional methods.
    This section, which currently allows the presiding officer to 
``alter the limits * * * on the number of depositions and 
interrogatories,'' would be amended to remove the impression that these 
rules impose a limit on the number of depositions and interrogatories--
they do not. Instead, the new rule would clarify that the presiding 
officer ``may set limits on the number of depositions and 
interrogatories.''
    3. Section 2.709--Discovery against NRC staff.
    a. Section 2.709(a)(6)--Initial disclosures.
    This new paragraph would require the NRC staff to provide initial 
disclosures within 30 days of the order granting a hearing and without 
awaiting a discovery request. The NRC staff disclosures would include 
all NRC staff documents relevant to disputed issues alleged with 
particularity in the proceedings, including any Office of 
Investigations Report and supporting Exhibits, and any Office of 
Enforcement documents regarding the order. The staff would also be 
required to file a mandatory disclosure update every 30 days. These 
updates would include all disclosable documents and information 
obtained or developed during the period that runs from the last 
disclosure update to 5 business days before the filing of the update. 
Any documents or information obtained or developed during the period 
between the 5 business day cutoff and the update would be included in 
the next update. If the staff does not disclose any documents or 
information, it would be expected to file an update informing the 
presiding officer and the other parties that no documents or 
information are being disclosed. The staff also would be required to 
provide, with initial disclosures and disclosure updates, a privilege 
log listing the withheld documents that includes sufficient information 
to assess the claim of privilege or protected status. These 
requirements parallel the Sec.  2.704 requirements for parties other 
than the NRC staff.
    b. Section 2.709(a)(7)--Form and type of NRC staff disclosures.
    Section 2.709(a)(7) is a new paragraph that would allow the staff 
to satisfy its disclosure obligations for publicly available documents 
by providing the title, date, and NRC ADAMS accession number for the 
document. This change would mirror the procedures now used by parties 
other than the NRC staff to disclose publicly available documents.
    4. Section 2.710--Motions for summary disposition.
    This section would be amended to conform to the proposed amendments 
to Sec.  2.1205, which would require parties to attach a statement of 
material facts to a motion for summary disposition. This proposed 
change would have no effect on the current practice of including a 
statement of material facts with a motion; it would clarify that the 
statement needs to be attached to the motion and does not have to be 
``separate.''

[[Page 10794]]

E. Subpart H--Sections 2.800 Through 2.819

    1. Section 2.802--Petition for rulemaking.
    This section currently allows petitioners for a rulemaking to 
request the suspension of an adjudicatory proceeding to which they are 
a party. This section would be amended to allow any petitioner for a 
rulemaking that is a participant in a proceeding (as defined by Sec.  
2.4) to request suspension of that proceeding.
Subpart L--Sections 2.1200 Through 2.1213
    2. Section 2.1202--Authority and role of NRC staff.
    This section currently requires the NRC staff to include its 
position on the matters in controversy when it notifies the presiding 
officer of its decision on a licensing action, which could be 
incorrectly interpreted as requiring the staff to advise the presiding 
officer on the merits of the contested matters. This amended section 
would clarify the authority and role of the NRC staff in less formal 
hearings; staff notices regarding licensing actions would have to 
include an explanation of why both the public health and safety is 
protected and the action is in accord with the common defense and 
security, despite the ``pendency of the contested matter before the 
presiding officer.''
    3. Section 2.1209--Findings of fact and conclusions of law.
    This section currently does not specify the formatting requirements 
for findings of fact and conclusions of law. Amended Sec.  2.1209 would 
incorporate the Sec.  2.712(c) formatting requirements for findings of 
fact and conclusions of law to ensure that proposed findings of fact 
and conclusions of law clearly and precisely communicate the parties' 
positions on the material issues in the proceeding, with exact 
citations to the factual record.
    4. Section 2.1213--Application for a stay.
    Section 2.1213 does not currently exclude matters limited to 
whether a ``no significant hazards consideration'' determination for a 
power reactor license amendment was proper from the stay provisions. 
Section 50.58(b)(6) prohibits challenges to these determinations; 
section 2.1213 would therefore be amended to exclude from the stay 
provisions matters limited to whether a no significant hazards 
consideration determination was proper.

F. Subpart M--Sections 2.1300 Through 2.1331

    1. Section 2.1300--Scope of subpart M.
    The NRC is proposing to remove Sec.  2.1304 and to amend Sec.  
2.1300 to clarify that the generally applicable intervention provisions 
in subpart C and the specific provisions in subpart M govern in subpart 
M proceedings.
    2. Section 2.1304--Hearing procedures.
    The NRC is proposing to remove Sec.  2.1304 and to amend Sec.  
2.1300 to clarify that the generally applicable intervention provisions 
in subpart C and the specific provisions in subpart M govern in subpart 
M proceedings.
    3. Section 2.1316--Authority and role of NRC staff.
    This section currently allows the NRC staff to submit a simple 
notification at any point in the proceeding to become a party. The NRC 
is proposing to adopt the requirements in Sec.  2.1202(b)(2) and (3), 
which require the NRC staff, within 15 days of the issuance of an order 
granting requests for hearing or petitions to intervene and admitting 
contentions, to notify the presiding officer and the parties whether it 
desires to participate as a party in the proceeding. The staff's notice 
would identify the contentions on which it will participate as a party; 
the staff would be allowed to join the proceeding at a later stage by 
providing notice to the presiding officer, identifying the contentions 
on which it wishes to participate as a party, and making the 
disclosures required by Sec.  2.336(b)(3) through (5).

G. Subpart N--Sections 2.1400 Through 2.1407

    1. Section 2.1403--Authority and role of the NRC staff.
    This section, which is essentially identical to Sec.  2.1202, would 
be amended to mirror the changes to that section.
    This section would also be updated to correct the reference to 
Sec.  2.101(f)(8), which should reference Sec.  2.101(e)(8); this 
change would not alter the meaning or intent of this regulation.
    2. 2.1407--Appeal and Commission review of initial decision.
    Proposed Sec.  2.1407(a) would extend the time to file an appeal 
and an answer to an appeal from 15 to 25 days.

H. Parts 51 and 54

    1. Section 51.4--Definitions.
    This section would be amended to remove an outdated reference to 
the former Atomic Safety and Licensing Appeal Board in the definition 
of NRC Staff. This change would not alter the meaning or intent of this 
regulation.
    2. Section 51.34--Preparation of finding of no significant impact.
    This section would be amended to remove outdated references to 
``Subpart G of Part 2'' and to the former Atomic Safety and Licensing 
Appeal Board. These changes would not alter the meaning or intent of 
this regulation.
    3. Section 51.102--Requirement to provide a record of decision; 
preparation.
    This section would be amended to remove outdated references to 
``Subpart G of Part 2'' and to the former Atomic Safety and Licensing 
Appeal Board. These changes would not alter the meaning or intent of 
this regulation.
    4. Section 51.109--Public hearings in proceedings for issuance of 
materials licensed with respect to a geologic repository.
    This section would be amended to remove an outdated reference to 
the former Atomic Safety and Licensing Appeal Board. This change would 
not alter the meaning or intent of this regulation.
    5. Section 51.125--Responsible official.
    This section would be amended to remove outdated references to 
``Subpart G of Part 2'' and to the former Atomic Safety and Licensing 
Appeal Board. These changes would not alter the meaning or intent of 
this regulation.
    6. Section 54.27--Hearings.
    This section would be amended to replace an outdated reference to a 
30-day period to request a hearing with a reference to the correct 60-
day period to request a hearing. This section would retain the 
provision that in the absence of any hearing requests, a renewed 
operating license may be issued without a hearing upon 30-day notice 
published in the Federal Register.

VIII. Plain Language

    The Presidential memorandum dated June 1, 1998, entitled ``Plain 
Language in Government Writing'' directed that the government's 
documents be written in clear and accessible language. This memorandum 
was published on June 10, 1998 (63 FR 31883). In complying with this 
directive, editorial changes have been made to 10 CFR part 2 to improve 
the organization and readability of the sections being revised. These 
types of changes are not discussed further in this document. The NRC 
requests comments on the proposed rule specifically with respect to the 
clarity and effectiveness of the language used. Comments should be sent 
to the NRC as explained in the ADDRESSES Section of this document.

[[Page 10795]]

IX. 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 is otherwise impractical. In this rule, the NRC is 
approving changes to its procedures for the conduct of hearings in 10 
CFR part 2. This action does not constitute the establishment of a 
government-unique standard as defined in Office of Management and 
Budget (OMB) Circular A-119 (1998).

X. Environmental Impact: Categorical Exclusion

    The proposed rule involves an amendment to 10 CFR part 2, and thus 
qualifies as an action for which no environmental review is required 
under the categorical exclusion set forth in 10 CFR 51.22(c)(1). 
Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this rulemaking.

XI. Paperwork Reduction Act Statement

    This rule does not contain any 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.).

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

XII. Regulatory Analysis

    The proposed rule emanates from the desire to make corrections, 
clarifications, and conforming changes to the NRC's rules of practice 
and to improve the hearing process. Those amendments that merely 
reflect either clarifications or corrections to the adjudicatory 
regulations are not changes to the existing processes. These amendments 
would not result in a cost to the NRC or to participants in NRC 
adjudicatory proceedings, and a benefit would accrue to the extent that 
potential confusion over the meaning of the NRC's regulations is 
removed.
    The more substantial changes suggested in the proposed rule would 
likewise not impose costs upon either the NRC or participants in NRC 
adjudications, but would instead bring benefits. Allowing 30 days for 
the updating of disclosures made under Sec.  2.336(d) would, in fact, 
reduce burdens on the parties. Fairness and equitable treatment would 
be furthered by the changes made to the 10 CFR 2.309 filing provisions 
and to the 10 CFR part 2 discovery provisions. These discovery 
amendments would improve adjudicatory efficiency, as would the 
amendments made to the format requirements for findings in final Sec.  
2.1209.
    The NRC does not believe the option of preserving the status quo is 
a preferred option. Failing to correct errors and clarify ambiguities 
will result in continuing confusion over the meaning of the rules, 
which could lead to the unnecessary waste of resources. Also, 
experience has shown that the agency hearing process can be improved 
through appropriate rule changes. The NRC believes that the proposed 
rule would improve the fairness, efficiency, and openness of NRC 
hearings without imposing costs on either the NRC or on participants in 
NRC adjudicatory proceedings. This constitutes the regulatory analysis 
for the proposed rule.

XIII. Regulatory Flexibility Act Certification

    In accordance with the Regulatory Flexibility Act, as amended, 5 
U.S.C. 605(b), the NRC certifies that this proposed rule would not have 
a significant economic impact on a substantial number of small 
entities. This rule would apply in the context of NRC 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 
Act, 15 U.S.C. 632, within the small business standards set forth in 13 
CFR part 121, or within the size standards established 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.

XIV. Backfit Analysis

    The NRC has determined that the backfit rule does not apply to the 
proposed rule amendments because they do not involve any provisions 
that would impose backfits as defined in 10 CFR Chapter I. Therefore, a 
backfit analysis is not required for this proposed rule.

List of Subjects

10 CFR Part 2

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

10 CFR Part 51

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

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.

    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, the NRC is proposing to 
adopt the following amendments to 10 CFR parts 2, 51, and 54.

PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE

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

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552; 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(f); sec. 102, 
Pub. L 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 
88 Stat. 1248 (42 U.S.C. 5871).
    Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under 
secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954, 
955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). 
Section 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 
U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161 b, i, 
o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended 
(42 U.S.C. 2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat. 1246 
(42 U.S.C. 5846). 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

[[Page 10796]]

U.S.C. 2239). Section 2.301 also issued under 5 U.S.C. 554. Sections 
2.343, 2.346, 2.712, also issued under 5 U.S.C. 557. Section 2.340 
also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 
2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under sec. 
103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. 
Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.800 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. 91-560, 84 Stat. 1472 (42 U.S.C. 2135).

    2. The heading for part 2 is revised to read as set forth above.
    3. In part 2, wherever it may appear, revise the phrase ``Presiding 
Officer'' to read ``presiding officer''.
    4. In Sec.  2.4, paragraph (2) of the definition of ``NRC 
personnel'' and the definition of ``Participant'' are revised to read 
as follows:


Sec.  2.4  Definitions.

* * * * *
    NRC personnel means:
* * * * *
    (2) For the purpose of Sec. Sec.  2.702 and 2.709 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
* * * * *
    Participant means an individual or organization (including a 
governmental entity) that has petitioned to intervene in a proceeding 
or requested a hearing but that has not yet been granted party status 
by an Atomic Safety and Licensing Board or other presiding officer. 
Participant also means a party to a proceeding and any interested 
State, local governmental body, or Federally-recognized Indian Tribe 
that seeks to participate in a proceeding under Sec.  2.315(c). For the 
purpose of service of documents, the NRC staff is considered a 
participant even if not participating as a party.
* * * * *
    5. In Sec.  2.101, paragraphs (b), (d), (f)(2)(i)(D), (f)(2)(ii), 
and (f)(5) are revised to read as follows:


Sec.  2.101  Filing of application.

* * * * *
    (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, which must comply with 
paragraph (f) 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 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 e-mail 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, Office of Nuclear 
Material Safety and Safeguards or Director, Office of Federal and State 
Materials and Environmental Management Programs, as appropriate, 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.
* * * * *
    (d) The Director, Office of Nuclear Reactor Regulation, Director, 
Office of New Reactors, Director, Office of Federal and State Materials 
and Environmental Management Programs, or Director, Office of Nuclear 
Material Safety and Safeguards, as appropriate, will give notice of the 
docketing of the public health and safety, common defense and security, 
and environmental parts of an application for a license for a facility 
or for receipt of waste radioactive material from other persons for the 
purpose of commercial disposal by the waste disposal licensee, except 
that for applications pursuant to part 61 of this chapter, paragraph 
(f) of this section applies to the Governor or other appropriate 
official of the State in which the facility is to be located or the 
activity is to be conducted and will publish in the Federal Register a 
notice of docketing of the application which states the purpose of the 
application and specifies the location at which the proposed activity 
would be conducted.
* * * * *
    (f) * * *
    (2)(i) * * *
    (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 
(f)(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 
these cases, the recipients will be responsible for inserting the 
revised pages. In complying with the requirements of paragraph (f) of 
this section the applicant may not make public distribution of those 
parts of the application subject to Sec.  2.390(d).
* * * * *
    (5) The Director, Office of Nuclear Material Safety and Safeguards 
or Director, Office of Federal and State Materials and Environmental 
Management Programs, as appropriate, will cause to be published in the 
Federal Register a notice of docketing which identifies the State and 
location of the proposed waste disposal facility and will give notice 
of docketing to the governor of that State and other officials listed 
in paragraph (f)(3) of this section and will, in a reasonable period 
thereafter, publish in the Federal Register a notice under Sec.  2.105 
offering an opportunity to request a hearing to the applicant and other 
potentially affected persons.
    6. In Sec.  2.105, the introductory text of paragraphs (a), (b), 
and (d) are revised to read as follows:

[[Page 10797]]

Sec.  2.105  Notice of proposed action.

    (a) If a hearing is not required by the Act or this chapter, and if 
the Commission has not found that a hearing is in the public interest, 
it will, before acting thereon, publish in the Federal Register, as 
applicable, or on the NRC Web site, http://www.nrc.gov, or both, at the 
Commission's discretion, either a notice of intended operation under 
Sec.  52.103(a) of this chapter and a proposed finding that 
inspections, tests, analysis, and acceptance criteria for a combined 
license under subpart C of part 52 have been or will be met, or a 
notice of proposed action with respect to an application for:
* * * * *
    (b) A notice of proposed action published in the Federal Register 
will set forth:
* * * * *
    (d) The notice of proposed action will provide that, within the 
time period provided under Sec.  2.309(b):
* * * * *
    7. In Sec.  2.305, the heading is revised, and paragraphs (c)(4) 
and (g)(1) are revised to read as follows:


Sec.  2.305  Service of documents, methods, proof.

* * * * *
    (c) * * *
    (4) To provide proof of service, any document served upon 
participants to the proceeding as may be required by law, rule, or 
order of the presiding officer must be accompanied by a signed 
certificate of service stating the names and addresses of the persons 
served as well as the method and date of service.
* * * * *
    (g) * * *
    (1) Service shall be made upon the NRC staff of all documents 
required to be filed with participants 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. Service upon the NRC staff shall be by the same or equivalent 
method as service upon the Office of the Secretary and the presiding 
officer, e.g., electronically, personal delivery or courier, express 
mail, or expedited delivery service. If no attorney representing the 
NRC Staff has filed a notice of appearance in the proceeding and 
service is not being made through the E-Filing System, service will be 
made using the following addresses, as applicable: By delivery to the 
Associate General Counsel for Hearings, Enforcement & Administration, 
One White Flint North, 11555-0001 Rockville Pike, Rockville, MD 20852; 
by mail addressed to the Associate General Counsel for Hearings, 
Enforcement & Administration, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; by e-mail to [email protected]; 
or by facsimile to 301-415-3725.
* * * * *
    8. In Sec.  2.309, paragraph (b)(5), (c), (d)(2), and (d)(3) are 
revised, paragraphs (h) and (i) are redesignated as paragraphs (i) and 
(j), respectively, and revised, and a new paragraph (h) is added to 
read as follows:


Sec.  2.309  Hearing requests, petitions to intervene, requirements for 
standing, and contentions.

* * * * *
    (b) * * *
    (5) For orders issued under Sec. Sec.  2.202 or 2.205 the time 
period provided therein.
    (c) Subsequent submission of petition/request or new or amended 
contentions. (1) Determination by presiding officer. Hearing requests, 
intervention petitions, and new or amended contentions filed after the 
deadlines in paragraph (b) of this section, will not be entertained 
absent a determination by the presiding officer that there is good 
cause for its submission after the deadlines in paragraph (b) of this 
section.
    (2) Good cause. To show good cause for a request for hearing, 
petition to intervene, or a new or amended contention filed after the 
deadlines in paragraph (b) of this section, the requestor or petitioner 
must demonstrate that:
    (i) The information upon which the filing is based was not 
previously available;
    (ii) The information upon which the filing is based is materially 
different from information previously available; and
    (iii) The filing has been submitted in a timely fashion based on 
the availability of the subsequent information.
    (3) New petitioner. A hearing request or intervention petition 
filed after the deadlines in paragraph (b) of this section must include 
a specification of contentions if the petitioner seeks admission as a 
party, and must also demonstrate that the petitioner meets the 
applicable standing and contention admissibility requirements in 
paragraphs (d) and (f) of this section.
    (4) Party or participant. A new or amended contention filed by a 
party or participant to the proceeding must also meet the applicable 
contention admissibility requirements in paragraph (f) of this section. 
If the party or participant has already addressed the requirements for 
standing under paragraph (d) of this section in the same proceeding in 
which the new or amended contentions are filed, it does not need to do 
so again.
    (5) Environmental contentions. For a new or amended contention 
arising under the National Environmental Policy Act and based on 
conclusions in an NRC draft or final environmental impact statement, 
environmental assessment, or any supplements relating thereto, the 
party or participant also must show that the data or conclusions in the 
NRC's documents differ significantly from the data or conclusions in 
the applicant's environmental report.
    (d) * * *
    (2) Rulings. In ruling on a request for hearing or petition for 
leave to intervene, the Commission, the presiding officer, or the 
Atomic Safety and Licensing Board designated to rule on such requests 
must determine, among other things, whether the petitioner has an 
interest affected by the proceeding considering the factors enumerated 
in paragraph (d)(1) of this section.
    (3) Standing in enforcement proceedings. In enforcement 
proceedings, the licensee or other person against whom the action is 
taken shall have standing.
* * * * *
    (h) Requirements applicable to States, local governmental bodies, 
and Federally-recognized Indian Tribes seeking party status. (1) If a 
State, local governmental body (county, municipality or other 
subdivision), or Federally-recognized Indian Tribe seeks to participate 
as a party in a proceeding, it must submit a request for hearing or a 
petition to intervene containing at least one admissible contention, 
and must designate a single representative for the hearing. If a 
request for hearing or petition to intervene is granted, the 
Commission, the presiding officer or the Atomic Safety and Licensing 
Board ruling on the request will admit as a party to the 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 
Federally-recognized Indian Tribe. 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.

[[Page 10798]]

    (2) If the proceeding pertains to a production or utilization 
facility (as defined in Sec.  50.2 of this chapter) located within the 
boundaries of the State, local governmental body, or Federally-
recognized Indian Tribe seeking to participate as a party, no further 
demonstration of standing is required. If the production or utilization 
facility is not located within the boundaries of the State, local 
governmental body, or Federally-recognized Indian Tribe seeking to 
participate as a party, the State, local governmental body, or 
Federally-recognized Indian Tribe also must demonstrate standing.
    (3) 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.
    (i) Answers to hearing requests, intervention petitions, and 
requests to admit new or amended contentions after the initial filing. 
Unless otherwise specified by the Commission, the presiding officer, or 
the Atomic Safety and Licensing Board designated to rule on the 
request/petition--
    (1) The applicant/licensee, the NRC staff, and other parties to a 
proceeding may file an answer to a hearing request, intervention 
petition, or a request to admit amended or new contentions after the 
initial filing within 25 days after service of the request or petition. 
Answers should address, at a minimum, the factors set forth in 
paragraphs (a) through (h) of this section insofar as these sections 
apply to the filing that is the subject of the answer.
    (2) Except in a proceeding under Sec.  52.103 of this chapter, the 
requestor/petitioner may file a reply to any answer. The reply must be 
filed within 7 days after service of that answer.
    (3) No other written answers or replies will be entertained.
    (j) Decision on request/petition. (1) In all proceedings other than 
a proceeding under Sec.  52.103 of this chapter, the presiding officer 
shall issue a decision on each request for hearing or petition to 
intervene within 45 days of the conclusion of the initial pre-hearing 
conference or, if no pre-hearing conference is conducted, within 45 
days after the filing of answers and replies under paragraph (i) of 
this section. With respect to a request to admit amended or new 
contentions, the presiding officer shall issue a decision on each such 
request within 45 days of the conclusion of any pre-hearing conference 
that may be conducted regarding the proposed amended or new contentions 
or, if no pre-hearing conference is conducted, within 45 days after the 
filing of answers and replies, if any. In the event the presiding 
officer cannot issue a decision within 45 days, the presiding officer 
shall issue a notice advising the Commission and the parties, and the 
notice shall include the expected date of when the decision will issue.
    (2) The Commission, acting as the presiding officer, shall 
expeditiously grant or deny the request for hearing in a proceeding 
under Sec.  52.103 of this chapter. The Commission's decision may not 
be the subject of any appeal under Sec.  2.311.
    9. In Sec.  2.311, paragraph (b) is revised to read as follows:


Sec.  2.311  Interlocutory review of rulings on requests for hearings/
petitions to intervene, selection of hearing procedures, and requests 
by potential parties for access to sensitive unclassified non-
safeguards information and safeguards information.

* * * * *
    (b) These appeals must be made as specified by the provisions of 
this section, within 25 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 25 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.
* * * * *
    10. In Sec.  2.314, paragraph (c)(3) is revised to read as follows:


Sec.  2.314  Appearance and practice before the Commission in 
adjudicatory proceedings.

* * * * *
    (c) * * *
    (3) Anyone disciplined under this section may file an appeal with 
the Commission within 25 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.
* * * * *
    11. In Sec.  2.315, paragraph (c) is revised to read as follows:


Sec.  2.315  Participation by a person not a party.

* * * * *
    (c) The presiding officer will afford an interested State, local 
governmental body (county, municipality or other subdivision), and 
Federally-recognized Indian Tribe that has not been admitted as a party 
under Sec.  2.309, a reasonable opportunity to participate in a 
hearing. The participation of any State, local governmental body, or 
Federally-recognized Indian Tribe shall be limited to unresolved issues 
and contentions, and issues and contentions that are raised after the 
State, local governmental body, or Federally-recognized Indian Tribe 
becomes a participant. Each State, local governmental body, and 
Federally-recognized Indian Tribe shall, in its request to participate 
in a hearing, 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

[[Page 10799]]

representative shall identify those contentions on which they will 
participate in advance of any hearing held.
* * * * *
    12. In Sec.  2.319, paragraph (l) is revised, paragraph (r) is 
redesignated as paragraph (s), and a new paragraph (r) is added to read 
as follows:


Sec.  2.319  Power of the presiding officer.

* * * * *
    (l) Refer rulings to the Commission under Sec.  2.323(f)(1), or 
certify questions to the Commission for its determination, either in 
the presiding officer's discretion, or on petition of a party under 
Sec.  2.323(f)(2), or on direction of the Commission.
* * * * *
    (r) Establish a schedule for briefs and oral arguments to decide 
any admitted contentions that, as determined by the presiding officer, 
constitute pure issues of law.
* * * * *
    13. In Sec.  2.323, paragraph (f) is revised to read as follows:


Sec.  2.323  Motions.

* * * * *
    (f) Referral and certifications to the Commission. (1) If, in the 
judgment of the presiding officer, the presiding officer's decision 
raises significant and novel legal or policy issues, or prompt decision 
by the Commission is necessary to materially advance the orderly 
disposition of the proceeding, then the presiding officer may promptly 
refer the ruling to the Commission. The presiding officer shall 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 a 
question to the Commission for early review. The presiding officer 
shall apply the criteria in Sec.  2.341(f)(1) in determining whether to 
grant the petition for certification. No motion for reconsideration of 
the presiding officer's ruling on a petition for certification will be 
entertained.
* * * * *
    14. In Sec.  2.335, paragraphs (b), (c), and (e) are revised to 
read as follows:


Sec.  2.335  Consideration of Commission rules and regulations in 
adjudicatory proceedings.

* * * * *
    (b) A participant 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 be 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 
participant 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 participant 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.
* * * * *
    (e) Whether or not the procedure in paragraph (b) of this section 
is available, a participant to an initial or renewal licensing 
proceeding may file a petition for rulemaking under Sec.  2.802.
    15. In Sec.  2.336, the introductory text to paragraph (b) and 
paragraph (d) are revised to read as follows:


Sec.  2.336  General discovery.

* * * * *
    (b) Except for enforcement proceedings initiated under subpart B of 
this part and conducted under subpart G of this part, and 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 must, within 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 
or provide to the extent available (but excluding those documents for 
which there is a claim of privilege or protected status):
* * * * *
    (d) The duty of disclosure under this section is continuing. A 
disclosure update must be made every thirty (30) days after initial 
disclosures. The disclosure update is limited to documents subject to 
disclosure under this section that have not been disclosed in a prior 
update and that are developed, obtained, or discovered during the 
period that runs from the 5 business days before last disclosure update 
to 5 business days before the filing of the update. The duty of 
mandatory disclosure with respect to new information or documents 
relevant to a contention ends when presiding officer issues a decision 
on that contention, or at such other time as may be specified by the 
presiding officer or the Commission.
* * * * *
    16. Section 2.340 is revised to read as follows:


Sec.  2.340  Initial decision in certain contested proceedings; 
immediate effectiveness of initial decisions; issuance of 
authorizations, permits, and licenses.

    (a) Initial decision--production or utilization facility operating 
license. (1) Matters in controversy; presiding officer consideration of 
matters not put in controversy by parties. In any initial decision in a 
contested proceeding on an application for an operating license or 
renewed license (including an amendment to or renewal of an operating 
license or renewed 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 and any matter 
designated by the Commission to be decided by the presiding officer. 
The presiding officer shall also make findings of fact and conclusions 
of law on any matter not put into controversy by the parties, but only 
to the extent that the presiding officer determines that a serious 
safety, environmental, or common defense and security matter exists, 
and the Commission approves of an examination of and decision on the 
matter upon its referral by the presiding officer under, inter alia, 
the provisions of Sec. Sec.  2.323 and 2.341.
    (2) Presiding officer initial decision and issuance of permit or 
license. (i) In a contested proceeding for the initial issuance or 
renewal of a construction permit, operating license, or renewed 
license, or the amendment of an operating or renewed license where the 
NRC has not made a determination of no significant hazards 
consideration, the

[[Page 10800]]

Commission, the Director, Office of Nuclear Reactor Regulation, or the 
Director, Office of New Reactors, as appropriate, after making the 
requisite findings, shall issue, deny, or appropriately condition the 
permit or license in accordance with the presiding officer's initial 
decision once that decision becomes effective.
    (ii) In a contested proceeding for the amendment of a construction 
permit, operating license, or renewed license where the NRC has made a 
determination of no significant hazards consideration, the Commission, 
the Director, Office of Nuclear Reactor Regulation, or the Director, 
Office of New Reactors, as appropriate (appropriate official), after 
making the requisite findings and complying with any applicable 
provisions of Sec.  2.1202(a) or Sec.  2.1403(a), may issue the 
amendment before the presiding officer's initial decision becomes 
effective. Once the presiding officer's initial decision becomes 
effective, the appropriate official shall take action with respect to 
that amendment in accordance with the initial decision. If the 
presiding officer's initial decision becomes effective before the 
appropriate official issues the amendment, then the appropriate 
official, after making the requisite findings, shall issue, deny, or 
appropriately condition the amendment in accordance with the presiding 
officer's initial decision.
    (b) Initial decision--combined license under 10 CFR part 52. (1) 
Matters in controversy; presiding officer consideration of matters not 
put in controversy by parties. In any initial decision in a contested 
proceeding on an application for a combined license under part 52 of 
this chapter (including an amendment to or renewal of combined 
license), the presiding officer shall make findings of fact and 
conclusions of law on the matters put into controversy by the parties 
and any matter designated by the Commission to be decided by the 
presiding officer. The presiding officer shall also make findings of 
fact and conclusions of law on any matter not put into controversy by 
the parties, but only to the extent that the presiding officer 
determines that a serious safety, environmental, or common defense and 
security matter exists, and the Commission approves of an examination 
of and decision on the matter upon its referral by the presiding 
officer under, inter alia, the provisions of Sec. Sec.  2.323 and 
2.341.
    (2) Presiding officer initial decision and issuance of permit or 
license. (i) In a contested proceeding for the initial issuance or 
renewal of a combined license under part 52 of this chapter, or the 
amendment of a combined license where the NRC has not made a 
determination of no significant hazards consideration, the Commission, 
the Director, Office of Nuclear Reactor Regulation, or the Director, 
Office of New Reactors, as appropriate, after making the requisite 
findings, shall issue, deny, or appropriately condition the permit or 
license in accordance with the presiding officer's initial decision 
once that decision becomes effective.
    (ii) In a contested proceeding for the amendment of a combined 
license under part 52 of this chapter where the NRC has made a 
determination of no significant hazards consideration, the Commission, 
the Director, Office of Nuclear Reactor Regulation, or the Director, 
Office of New Reactors, as appropriate (appropriate official), after 
making the requisite findings and complying with any applicable 
provisions of Sec.  2.1202(a) or Sec.  2.1403(a), may issue the 
amendment before the presiding officer's initial decision becomes 
effective. Once the presiding officer's initial decision becomes 
effective, the appropriate official shall take action with respect to 
that amendment in accordance with the initial decision. If the 
presiding officer's initial decision becomes effective before the 
appropriate official issues the amendment, then the appropriate 
official, after making the requisite findings, shall issue, deny, or 
appropriately condition the amendment in accordance with the presiding 
officer's initial decision.
    (c) Initial decision on findings under 10 CFR 52.103 with respect 
to acceptance criteria in nuclear power reactor combined licenses. In 
any initial decision under Sec.  52.103(g) of this chapter with respect 
to whether acceptance criteria have been or will be met, the presiding 
officer shall make findings of fact and conclusions of law on the 
matters put into controversy by the parties, and any matter designated 
by the Commission to be decided by the presiding officer. Matters not 
put into controversy by the parties, but identified by the presiding 
officer as matters requiring further examination, shall be referred to 
the Commission for its determination; the Commission may, in its 
discretion, treat any of these referred matters as a request for action 
under Sec.  2.206 and process the matter in accordance with Sec.  
52.103(f) of this chapter.
    (d) Initial decision--manufacturing license under 10 CFR part 52. 
(1) Matters in controversy; presiding officer consideration of matters 
not put in controversy by parties. In any initial decision in a 
contested proceeding on an application for a manufacturing license 
under subpart C of part 52 of this chapter (including an amendment to 
or renewal of a manufacturing license), the presiding officer shall 
make findings of fact and conclusions of law on the matters put into 
controversy by the parties and any matter designated by the Commission 
to be decided by the presiding officer. The presiding officer also 
shall make findings of fact and conclusions of law on any matter not 
put into controversy by the parties, but only to the extent that the 
presiding officer determines that a serious safety, environmental, or 
common defense and security matter exists, and the Commission approves 
of an examination of and decision on the matter upon its referral by 
the presiding officer under, inter alia, the provisions of Sec. Sec.  
2.323 and 2.341.
    (2) Presiding officer initial decision and issuance of permit or 
license. (i) In a contested proceeding for the initial issuance or 
renewal of a manufacturing license under subpart C of part 52 of this 
chapter, or the amendment of a manufacturing license, the Commission, 
the Director, Office of Nuclear Reactor Regulation, or the Director, 
Office of New Reactors, as appropriate, after making the requisite 
findings, shall issue, deny, or appropriately condition the permit or 
license in accordance with the presiding officer's initial decision 
once that decision becomes effective.
    (ii) In a contested proceeding for the initial issuance or renewal 
of a manufacturing license under subpart C of part 52 of this chapter, 
or the amendment of a manufacturing license, the Commission, the 
Director, Office of Nuclear Reactor Regulation, or the Director, Office 
of New Reactors, as appropriate, may issue the license, permit, or 
license amendment in accordance with Sec.  2.1202(a) or Sec.  2.1403(a) 
before the presiding officer's initial decision becomes effective. If, 
however, the presiding officer's initial decision becomes effective 
before the license, permit, or license amendment is issued under Sec.  
2.1202 or Sec.  2.1403, then the Commission, the Director, Office of 
Nuclear Reactor Regulation, or the Director, Office of New Reactors, as 
appropriate, shall issue, deny, or appropriately condition the license, 
permit, or license amendment in accordance with the presiding officer's 
initial decision.
    (e) Initial decision--other proceedings not involving production or 
utilization facilities. (1) Matters in controversy; presiding officer 
consideration of matters not put in controversy by parties. In a 
proceeding not involving production or utilization facilities, the

[[Page 10801]]

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 any matters designated by the Commission to be decided by the 
presiding officer. Matters not put into controversy by the parties, but 
identified by the presiding officer as requiring further examination, 
must be referred to the Director, Office of Nuclear Material Safety and 
Safeguards, or the Director, Office of Federal and State Materials and 
Environmental Management Programs, as appropriate. Depending on the 
resolution of those matters, the Director, Office of Nuclear Material 
Safety and Safeguards or the Director, Office of Federal and State 
Materials and Environmental Management Programs, as appropriate, after 
making the requisite findings, shall issue, deny, revoke or 
appropriately condition the license, or take other action as necessary 
or appropriate.
    (2) Presiding officer initial decision and issuance of permit or 
license. (i) In a contested proceeding under this paragraph, the 
Commission, the Director, Office of Nuclear Material Safety and 
Safeguards, or the Director, Office of Federal and State Materials and 
Environmental Management Programs, as appropriate, shall issue, deny, 
or appropriately condition the permit, license, or license amendment in 
accordance with the presiding officer's initial decision once that 
decision becomes effective.
    (ii) In a contested proceeding under this paragraph, the 
Commission, the Director, Office of Nuclear Material Safety and 
Safeguards, or the Director, Office of Federal and State Materials and 
Environmental Management Programs, as appropriate, may issue the 
permit, license, or amendment in accordance with Sec.  2.1202(a) or 
Sec.  2.1403(a) before the presiding officer's initial decision becomes 
effective. If, however, the presiding officer's initial decision 
becomes effective before the permit, license, or amendment is issued 
under Sec.  2.1202 or Sec.  2.1403, then the Commission, the Director, 
Office of Nuclear Material Safety and Safeguards, or the Director, 
Office of Federal and State Materials and Environmental Management 
Programs, as appropriate, shall issue, deny, or appropriately condition 
the permit, license, or amendment in accordance with the presiding 
officer's initial decision.
    (f) Immediate effectiveness of certain presiding officer decisions. 
A presiding officer's initial decision directing the issuance or 
amendment of a limited work authorization under Sec.  50.10 of this 
chapter, an early site permit under subpart A of part 52 of this 
chapter, a construction permit or construction authorization under part 
50 of this chapter, an operating license under part 50 of this chapter, 
a combined license under subpart C of part 52 of this chapter, a 
manufacturing license under subpart F of part 52 of this chapter, or a 
license under part 72 of this chapter to store spent fuel in an 
independent spent fuel storage facility (ISFSI) or a monitored 
retrievable storage installation (MRS), an initial decision directing 
issuance of a license under part 61 of this chapter, or an initial 
decision under Sec.  52.103(g) of this chapter that acceptance criteria 
in a combined license have been met, is immediately effective 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.
    (g)-(h) [Reserved]
    (i) Issuance of authorizations, permits, and licenses--production 
and utilization facilities. The Commission, the Director, Office of New 
Reactors, or the Director, Office of Nuclear Reactor Regulation, as 
appropriate, shall issue a limited work authorization under Sec.  50.10 
of this chapter, an early site permit under subpart A of part 52 of 
this chapter, a construction permit or construction authorization under 
part 50 of this chapter, an operating license under part 50 of this 
chapter, a combined license under subpart C of part 52 of this chapter, 
or a manufacturing license under subpart F of part 52 of this chapter 
within 10 days from the date of issuance of the initial decision:
    (1) If the Commission or the appropriate Director has made all 
findings necessary for issuance of the authorization, permit or 
license, not within the scope of the initial decision of the presiding 
officer; and
    (2) Notwithstanding the pendency of a petition for reconsideration 
under Sec.  2.345, a petition for review under Sec.  2.341, or a motion 
for stay under Sec.  2.342, or the filing of a petition under Sec.  
2.206.
    (j) Issuance of finding on acceptance criteria under 10 CFR 52.103. 
The Commission, the Director, Office of New Reactors, or the Director, 
Office of Nuclear Reactor Regulation, as appropriate, shall make the 
finding under Sec.  52.103(g) of this chapter that the acceptance 
criteria in a combined license have been, or will be met, within 10 
days from the date of issuance of the initial decision:
    (1) If the Commission or the appropriate Director has made the 
finding under Sec.  52.103(g) of this chapter that acceptance criteria 
have been, or will be met, for those acceptance criteria which are not 
within the scope of the initial decision of the presiding officer; and
    (2) Notwithstanding the pendency of a petition for reconsideration 
under Sec.  2.345, a petition for review under Sec.  2.341, or a motion 
for stay under Sec.  2.342, or the filing of a petition under Sec.  
2.206.
    (k) Issuance of other licenses. The Commission or the Director, 
Office of Nuclear Material Safety and Safeguards, or the Director, 
Office of Federal and State Materials and Environmental Management 
Programs, as appropriate, shall issue a license, including a license 
under part 72 of this chapter to store spent fuel in either an 
independent spent fuel storage facility (ISFSI) located away from a 
reactor site or at a monitored retrievable storage installation (MRS), 
within 10 days from the date of issuance of the initial decision:
    (1) If the Commission or the appropriate Director has made all 
findings necessary for issuance of the license, not within the scope of 
the initial decision of the presiding officer; and
    (2) Notwithstanding the pendency of a petition for reconsideration 
under Sec.  2.345, a petition for review under Sec.  2.341, or a motion 
for stay under Sec.  2.342, or the filing of a petition under Sec.  
2.206.
    17. In Sec.  2.341, paragraphs (a), (b)(1), (b)(3), (c), and (f)(1) 
are revised to read as follows:


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

    (a)(1) Review of decisions and actions of a presiding officer are 
treated under this section; provided, however, that no party may 
request a further Commission review of a Commission determination to 
allow a period of interim operation under Sec.  52.103(c) of this 
chapter. This section does not apply to appeals under Sec.  2.311 or to 
appeals in the high-level waste proceeding, which are governed by Sec.  
2.1015.
    (2) Within 120 days after the date of a decision or action by a 
presiding officer, or within 120 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 25 days after service of a full or partial initial 
decision by a presiding officer, and within 25 days

[[Page 10802]]

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.
* * * * *
    (3) Any other party to the proceeding may, within 25 days after 
service of a petition for review, file an answer supporting or opposing 
Commission review. This answer may not be longer than 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 10 days of service of any answer. This reply brief 
may not be longer than 5 pages.
* * * * *
    (c)(1) If within 120 days after the filing of a petition for review 
the Commission does not grant the petition, in whole or in part, the 
petition is deemed to be denied, unless the Commission, in its 
discretion, extends the time for its consideration of the petition and 
any answers to the petition.
    (2) If a petition for review is granted, the Commission may 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.
    (3) Unless the Commission orders otherwise, any briefs on review 
may not exceed 30 pages in length, 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 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.
* * * * *
    (f) * * *
    (1) A ruling referred or question certified to the Commission under 
Sec. Sec.  2.319(l) or 2.323(f) may be reviewed if the certification or 
referral raises significant and novel legal or policy issues, or 
resolution of the issues would materially advance the orderly 
disposition of the proceeding.
* * * * *
    18. In Sec.  2.346, paragraphs (e) and (j) are revised to read as 
follows:


Sec.  2.346  Authority of the Secretary.

* * * * *
    (e) Extend the time for the Commission to grant review on its own 
motion under Sec.  2.341;
* * * * *
    (j) Take action on procedural or other minor matters.
    19. In Sec.  2.347, paragraphs (e)(1)(i) and (e)(1)(ii) are revised 
to read as follows:


Sec.  2.347  Ex parte communications.

* * * * *
    (e)(1) * * *
    (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), 2.205(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), 2.205(e), or 2.312.
* * * * *
    20. In Sec.  2.348, paragraphs (d)(1)(i) and (d)(1)(ii) are revised 
to read as follows:


Sec.  2.348  Separation of functions.

* * * * *
    (d)(1) * * *
    (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), 2.205(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 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), 2.205(e), or 2.312.
* * * * *
    21. In Sec.  2.704, paragraph (a)(3) is revised to read as follows:


Sec.  2.704  Discovery-required disclosures.

    (a) * * *
    (3) Unless otherwise stipulated by the parties or directed by order 
of the presiding officer, these disclosures must be made within 30 days 
of the order granting a hearing. A party must 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. The duty of disclosure under this 
section is continuing. A disclosure update must be made every 30 days 
after initial disclosures. The disclosure update must contain any 
information or documents subject to disclosure under this section that 
have not been disclosed in a prior update and that are developed, 
obtained, or discovered during the period that runs from the last 
disclosure update to 5 business days before the filing of the update. 
The duty of mandatory disclosure with respect to new information or 
documents relevant to a contention ends when the hearing with respect 
to that contention has concluded, or at such other time as may be 
specified by the presiding officer or the Commission.
* * * * *
    22. In Sec.  2.705, the introductory text to paragraph (b)(2) is 
revised to read as follows:


Sec.  2.705  Discovery-additional methods.

* * * * *
    (b) * * *
    (2) 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 set limits 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:
* * * * *
    23. In Sec.  2.709, paragraphs (a)(6) and (a)(7) are added to read 
as follows:


Sec.  2.709  Discovery against NRC staff.

    (a) * * *
    (6)(i) In a proceeding arising from an order issued under 
Sec. Sec.  2.202 or 2.205, the NRC staff must, except to the extent 
otherwise stipulated or directed by order of the presiding officer or 
the Commission, provide to the other parties within thirty (30) days of 
the order granting a hearing and without awaiting a discovery request:
    (A) All NRC staff documents relevant to disputed issues alleged 
with particularity in the pleadings, including any Office of 
Investigations report and supporting exhibits, and any Office of 
Enforcement documents regarding the order; and
    (B) A list of all documents otherwise responsive to paragraph 
(a)(6)(i)(A) of this section 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.
    (ii) The duty of disclosure under this section is continuing. A 
disclosure

[[Page 10803]]

update must be made every thirty (30) days after initial disclosures. 
The disclosure update must contain any information or documents subject 
to disclosure under this section that have not been disclosed in a 
prior update and that are developed, obtained, or discovered during the 
period that runs from the last disclosure update to five (5) business 
days before the filing of the update. The duty of mandatory disclosure 
with respect to new information or documents relevant to a contention 
ends when the hearing with respect to that contention has concluded, or 
at such other time as may be specified by the presiding officer or the 
Commission.
    (7) 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 (including 
the ADAMS accession number, when available), the title and a page 
reference to the relevant document, data compilation, or tangible 
thing.
* * * * *
    24. In Sec.  2.710, paragraph (a) is revised to read as follows:


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 20 days after 
the close of discovery. The moving party shall attach to the motion a 
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 20 days after service of the motion. The 
party shall attach to any answer opposing the motion a 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 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 to the motion will be entertained.
* * * * *
    25. In Sec.  2.802, paragraph (d) is revised to read as follows:


Sec.  2.802  Petition for rulemaking.

* * * * *
    (d) The petitioner may request the Commission to suspend all or any 
part of any licensing proceeding to which the petitioner is a 
participant pending disposition of the petition for rulemaking.
* * * * *

Subpart L--Simplified Hearing Procedures for NRC Adjudications

    26. The heading of subpart L is revised to read as set forth above:
    27. In Sec.  2.1202, the introductory text of paragraph (a) is 
revised to read as follows:


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 review of the 
application or matter which is the subject of the hearing and as 
authorized by law, the NRC staff is expected to promptly issue its 
approval or denial of the application, or take other appropriate action 
on the underlying regulatory matter for which a hearing was provided. 
When the NRC staff takes its action, it must notify the presiding 
officer and the parties to the proceeding of its action. That notice 
must include the NRC staff's explanation why the public health and 
safety is protected and why the action is in accord with the common 
defense and security despite the pendency of the contested matter 
before the presiding officer. The NRC staff's action on the matter is 
effective upon issuance by the staff, except in matters involving:
* * * * *
    28. In Sec.  2.1205, paragraph (a) is revised to read as follows:


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 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. The moving 
party must attach a short and concise statement of material facts for 
which the moving party contends that there is no genuine issue to be 
heard, 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.
* * * * *
    29. Section 2.1209 is revised to read as follows:


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 30 days of the close of the hearing or at such other time as the 
presiding officer directs. Proposed findings of fact and conclusions of 
law must conform to the format requirements in Sec.  2.712(c).
    30. In Sec.  2.1213, paragraph (f) is added to read as follows:


Sec.  2.1213  Application for a stay.

* * * * *
    (f) Stays are not available on matters limited to whether a no 
significant hazards consideration determination was proper in 
proceedings on power reactor license amendments.
    31. Section 2.1300 is revised to read as follows:


Sec.  2.1300  Scope of subpart M.

    The provisions of this subpart, together with the generally 
applicable intervention provisions in 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.  2.1304  [Removed]

    32. Section 2.1304 is removed.
    33. In Sec.  2.1316, paragraph (c) is revised to read as follows:


Sec.  2.1316  Authority and role of NRC staff.

* * * * *
    (c)(1) Within 15 days of the issuance of the order granting 
requests for hearing/petitions to intervene and admitting contentions, 
the NRC staff must 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 must notify the presiding officer 
and the parties, and identify the contentions on which it wishes to 
participate as a party,

[[Page 10804]]

and make the disclosures required by Sec.  2.336(b)(3) through (b)(5) 
unless accompanied by an affidavit explaining why the disclosures 
cannot be provided to the parties with the notice.
    (2) Once the NRC staff chooses to participate as a party, it will 
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.
    34. In Sec.  2.1403, the introductory text of paragraph (a) is 
revised to read as follows:


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 review of the 
application or matter that is the subject of the hearing and as 
authorized by law, the NRC staff is expected to promptly issue its 
approval or denial of the application, or take other appropriate action 
on the matter that is the subject of the hearing. When the NRC staff 
takes its action, it must notify the presiding officer and the parties 
to the proceeding of its action. That notice must include the NRC 
staff's explanation why the public health and safety is protected and 
why the action is in accord with the common defense and security 
despite the pendency of the contested matter before the presiding 
officer. The NRC staff's action on the matter is effective upon 
issuance, except in matters involving:
* * * * *
    35. In Sec.  2.1407, paragraphs (a)(1) and (a)(3) are revised to 
read as follows:


Sec.  2.1407  Appeal and Commission review of initial decision.

    (a)(1) Within 25 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.
* * * * *
    (3) Any other party to the proceeding may, within 25 days after 
service of the appeal, file an answer supporting or opposing the 
appeal. The answer may not be longer than 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.
* * * * *

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

    36. 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); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). 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)).
    37. In Sec.  51.4, the definition of NRC staff is revised to read 
as follows:


Sec.  51.4  Definitions.

* * * * *
    NRC staff means any NRC officer or employee or his/her authorized 
representative, except a Commissioner, a member of a Commissioner's 
immediate staff, an Atomic Safety and Licensing Board, a presiding 
officer, an administrative judge, an administrative law judge, or any 
other officer or employee of the Commission who performs adjudicatory 
functions.
* * * * *
    38. In Sec.  51.34, paragraph(b) is revised to read as follows:


Sec.  51.34  Preparation of finding of no significant impact.

* * * * *
    (b) When a hearing is held on the proposed action under the 
regulations in subpart G of part 2 of this chapter or when the action 
can only be taken by the Commissioners acting as a collegial body, the 
appropriate NRC staff director will prepare a proposed finding of no 
significant impact, which may be subject to modification as a result of 
review and decision as appropriate to the nature and scope of the 
proceeding. In such cases, the presiding officer, or the Commission 
acting as a collegial body, as appropriate, will issue the final 
finding of no significant impact.
    39. In Sec.  51.102, paragraph (c) is revised to read as follows:


Sec.  51.102  Requirement to provide a record of decision; preparation.

* * * * *
    (c) When a hearing is held on the proposed action under the 
regulations in part 2 of this chapter or when the action can only be 
taken by the Commissioners acting as a collegial body, the initial 
decision of the presiding officer or the final decision of the 
Commissioners acting as a collegial body will constitute the record of 
decision. An initial or final decision constituting the record of 
decision will be distributed as provided in Sec.  51.93.
    40. In Sec.  51.109, paragraph (f) is revised to read as follows:


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

* * * * *
    (f) In making the determinations described in paragraph (e) of this 
section, the environmental impact statement will be deemed modified to 
the extent that findings and conclusions differ from those in the final 
statement prepared by the Secretary of Energy, as it may have been 
supplemented. The initial decision will be distributed to any persons 
not otherwise entitled to receive it who responded to the request in 
the notice of docketing, as described in Sec.  51.26(c). If the 
Commission reaches conclusions different from those of the presiding 
officer with respect to such matters, the final environmental impact 
statement will be deemed modified to that extent and the decision will 
be similarly distributed.
* * * * *
    41. Section 51.125 is revised to read as follows:


Sec.  51.125  Responsible official.

    The Executive Director for Operations shall be responsible for 
overall review of NRC NEPA compliance, except for matters under the 
jurisdiction of a presiding officer, administrative judge, 
administrative law judge, Atomic Safety and Licensing Board, or the 
Commission acting as a collegial body.

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

    42. 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

[[Page 10805]]

amended, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR, 1995 Comp., 
p.391.
    43. Section 54.27 is revised to read as follows:


Sec.  52.27  Hearings.

    A notice of an opportunity for a hearing will be published in the 
Federal Register in accordance with 10 CFR 2.105 and 2.309. In the 
absence of a request for a hearing filed within 60 days by a person 
whose interest may be affected, the Commission may issue a renewed 
operating license or renewed combined license without a hearing upon a 
30-day notice and publication in the Federal Register of its intent to 
do so.

    Dated at Rockville, Maryland, this 22nd day of February 2011.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011-4345 Filed 2-25-11; 8:45 am]
BILLING CODE 7590-01-P