[Federal Register Volume 85, Number 215 (Thursday, November 5, 2020)]
[Rules and Regulations]
[Pages 70435-70439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24155]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 2
[NRC-2020-0033]
RIN 3150-AK46
Non-Substantive Amendments to Adjudicatory Proceeding
Requirements
AGENCY: Nuclear Regulatory Commission.
ACTION: Direct final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
regulations to revise and clarify the agency's rules of practice and
procedure to reflect current Atomic Safety and Licensing Board Panel
practice, Commission case law, and a decision of the Supreme Court of
the United States and to enhance consistency within the NRC's
regulations.
DATES: This final rule is effective January 19, 2021, unless
significant adverse comments are received by December 7, 2020. If the
direct final rule is withdrawn as a result of such comments, timely
notice of the withdrawal will be published in the Federal Register.
Comments received after this date will be considered if it is practical
to do so, but the NRC is able to ensure consideration only for comments
received on or before this date. Comments received on this direct final
rule will also be considered to be comments on a companion proposed
rule published in the Proposed Rules section of this issue of the
Federal Register.
ADDRESSES: You may submit comments by any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0033. Address
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407;
email: [email protected]. For technical questions, contact the
individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
Email comments to: [email protected]. If you do
not receive an automatic email reply confirming receipt, then contact
us at 301-415-1677.
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
For additional direction on obtaining information and submitting
comments, see ``Obtaining Information and Submitting Comments'' in the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Ian Irvin, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001;
telephone: 301-287-9193; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Obtaining Information and Submitting Comments
II. Rulemaking Procedure
III. Background
IV. Discussion
V. Plain Writing
VI. National Environmental Policy Act
VII. Paperwork Reduction Act Act
VIII. Congressional Review Act
I. Obtaining Information and Submitting Comments
A. Obtaining Information
Please refer to Docket ID NRC-2020-0033 when contacting the NRC
about the availability of information for this action. You may obtain
publicly available information related to this action by any of the
following methods:
[[Page 70436]]
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0033.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's PDR
reference staff at 1-800-397-4209, at 301-415-4737, or by email to
[email protected]. The ADAMS accession number for each document
referenced (if it is available in ADAMS) is provided the first time
that it is mentioned in this document.
Attention: The Public Document Room (PDR), where you may
examine and order copies of public documents, is currently closed. You
may submit your request to the PDR via email at [email protected] or
call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday
through Friday, except Federal holidays.
B. Submitting Comments
The NRC encourages electronic comment submission through the
Federal Rulemaking website (https://www.regulations.gov). Please
include Docket ID NRC-2020-0033 in your comment submission.
The NRC cautions you not to include identifying or contact
information that you do not want to be publicly disclosed in your
comment submission. The NRC will post all comment submissions at
https://www.regulations.gov as well as enter the comment submissions
into ADAMS. The NRC does not routinely edit comment submissions to
remove identifying or contact information.
If you are requesting or aggregating comments from other persons
for submission to the NRC, then you should inform those persons not to
include identifying or contact information that they do not want to be
publicly disclosed in their comment submission. Your request should
state that the NRC does not routinely edit comment submissions to
remove such information before making the comment submissions available
to the public or entering the comment into ADAMS.
II. Rulemaking Procedure
Because the NRC considers this action to be non-controversial, the
NRC is using the ``direct final rule procedure'' for this rule. This
amendment to the rule will become effective on January 19, 2021.
However, if the NRC receives significant adverse comments on this
direct final rule by December 7, 2020, then the NRC will publish a
document that withdraws this action and will subsequently address the
comments received in a final rule as a response to the companion
proposed rule published in the Proposed Rules section of this issue of
the Federal Register. Absent significant modifications to the proposed
revisions requiring republication, the NRC will not initiate a second
comment period on this action.
A significant adverse comment is a comment where the commenter
explains why the rule would be inappropriate, including challenges to
the rule's underlying premise or approach, or would be ineffective or
unacceptable without a change. A comment is adverse and significant if:
(1) The comment opposes the rule and provides a reason sufficient
to require a substantive response in a notice-and-comment process. For
example, a substantive response is required when:
(a) The comment causes the NRC to reevaluate (or reconsider) its
position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a
substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously
addressed or considered by the NRC.
(2) The comment proposes a change or an addition to the rule, and
it is apparent that the rule would be ineffective or unacceptable
without incorporation of the change or addition.
(3) The comment causes the NRC to make a change (other than
editorial) to the rule.
For detailed instructions on filing comments, please see the
ADDRESSES section of this document.
III. Background
The NRC's regulations governing the conduct of adjudicatory
proceedings before the agency are contained in part 2 of title 10 of
the Code of Federal Regulations (10 CFR), ``Agency Rules of Practice
and Procedure.'' Periodically, the NRC has amended these rules,
including adopting changes in 2004 to enhance efficiency; in 2012 to
promote fairness, efficiency, and openness; and in 2016 to reflect
technological advances and current agency practice. Since the last
update to the agency's rules of practice and procedure, the NRC has
identified additional provisions that should be updated to reflect
technological advances and current agency practice. This direct final
rule makes those updates and clarifies that any administrative law
judge designated to preside over an NRC adjudication must be appointed
by the Commission consistent with the Supreme Court decision in Lucia
v. Securities and Exchange Commission (138 S. Ct. 2044 (2018)).
IV. Discussion
Appointment of Administrative Law Judges
This direct final rule revises Sec. 2.313(a) to clarify that any
Administrative Law Judge (ALJ) designated to preside in a 10 CFR part 2
proceeding must be appointed by the Commission, consistent with the
Supreme Court's decision in Lucia v. Securities and Exchange
Commission. Part 2 permits the use of an ALJ as presiding officer in an
NRC adjudication, although the agency does not currently employ any
ALJs (members of the Atomic Safety and Licensing Board Panel are not
ALJs but are administrative judges whose appointments are already
approved by the Commission). In addition, this direct final rule
updates the definition of ``administrative law judge'' in Sec. 2.4,
which cites an outdated section of the Administrative Procedure Act, by
citing to the correct statutory authority for the appointment of ALJs.
Timely Renewal
This direct final rule revises Sec. 2.109 by adding new paragraph
(e), which provides that if an Independent Spent Fuel Storage
Installation licensee submits a renewal application at least 2 years
before the license expires, the existing license will continue in
effect until a final decision is reached on the application. New
paragraph (e) provides consistency between Sec. Sec. 2.109 and
72.42(c) of the NRC's regulations. Conforming changes are made to Sec.
2.109(a) to reflect the addition of new paragraph (e).
Orders
This direct final rule revises Sec. 2.202 by redesignating
paragraph (a)(3) as paragraph (a)(3)(i) and adding a new paragraph
(a)(3)(ii), which clarifies that a person other than the recipient of
an order under that section who may be adversely affected by the order
must meet the requirements of Sec. 2.309 when requesting a hearing.
Section 2.202(a)(3)(i) is revised to clarify that the recipient of an
order has the right to demand a hearing on all or part of the order
within 20 days of the date of the order.
Motions
This direct final rule revises Sec. 2.323 to clarify that the
deadlines for general motions do not apply to motions for summary
disposition.
[[Page 70437]]
Evidentiary Exhibit Submission Requirements
This direct final rule updates the evidentiary exhibit submission
requirements to reflect the current practices of using the E-Filing
system to submit exhibits unless the Commission or presiding officer
grants an exemption permitting an alternative filing method or unless
the filing falls within the scope of Sec. 2.302(g)(1). This direct
final rule revises Sec. Sec. 2.337(d) and 2.711(h) to require that
information referenced through hyperlinks must be submitted in its
entirety, either in the exhibit or in a separate exhibit, if a party
wants that information included in the evidentiary record.
Separation of Functions
This direct final rule revises the separation of functions
provision to include employees in the Office of Commission Appellate
Adjudication in Sec. 2.348(b)(2). The rule generally prohibits
communications between NRC officers or employees engaged in
investigative or litigating functions in the proceeding or in a
factually related proceeding with respect to a disputed issue in that
proceeding. The rule also sets forth various types of communications
that are permissible. The direct final rule adds employees in the
Office of Commission Appellate Adjudication to the list of Commission
adjudicatory employees covered by the exception in paragraph (b)(2) to
the general prohibition set forth in paragraph (a).
Deposition Transcripts in Subpart G Proceedings
This direct final rule revises Sec. 2.706(a)(5) for forwarding
deposition transcripts to the Commission consistent with the agency's
E-filing rules. This revision requires the party that took the
deposition to promptly transmit an electronic copy of the deposition to
the Secretary of the Commission for entry into the electronic docket.
Part 2 Subpart L Model Milestones
This direct final rule makes a conforming change to the Subpart L
Model Milestones in appendix B to 10 CFR part 2 to replace ``late-filed
contentions'' with ``new or amended contentions filed after the
deadline.'' The NRC issued a final rule in 2012, titled ``Amendments to
Adjudicatory Process Rules and Related Requirements'' (77 FR 46562), to
discontinue using the terms ``late-filed'' or ``nontimely'' with regard
to such contentions and instead use ``new or amended contentions filed
after the deadline.'' The current Subpart L Model Milestones refer to
``late-filed contentions'' in three places. This direct final rule
updates this language to ``new or amended contentions filed after the
deadline'' consistent with the 2012 final rule.
This direct final rule also revises the Subpart L Model Milestones
in appendix B to 10 CFR part 2 to separate the model milestone for
filing proposed new or amended contentions filed after the deadline and
the model milestone for filing motions for summary disposition on
previously admitted contentions. This change is made for clarity. New
or amended contentions filed after the deadline would continue to be
due within 30 days after issuance. Motions for summary disposition on
previously admitted contentions would continue to be due within 30 days
of the issuance of the SER and any necessary NEPA document.
V. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and well-organized
manner. The NRC has written this document to be consistent with the
Plain Writing Act as well as the Presidential Memorandum, ``Plain
Language in Government Writing,'' published June 10, 1998 (63 FR
31883).
VI. National Environmental Policy Act
The NRC has determined that this final rule is the type of action
described in 10 CFR 51.22(c)(1). Therefore, neither an environmental
impact statement nor environmental assessment has been prepared for
this final rule.
VII. Paperwork Reduction Act
This final rule does not contain a collection of information as
defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the document requesting
or requiring the collection displays a currently valid OMB control
number.
VIII. Congressional Review Act
This direct final rule is a rule as defined in the Congressional
Review Act (5 U.S.C. 801-808). However, the Office of Management and
Budget has not found it to be a major rule as defined in the
Congressional Review Act.
List of Subjects in 10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Confidential business information,
Freedom of information, Environmental protection, Hazardous waste,
Nuclear energy, Nuclear materials, Nuclear power plants and reactors,
Penalties, Reporting and recordkeeping requirements, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendments to 10 CFR part 2:
PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 2 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81,
102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42
U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201,
2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy
Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846);
Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42
U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act
(5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy
Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
Section 2.205(j) also issued under 28 U.S.C. 2461 note.
0
2. In Sec. 2.4, revise the definition of ``Administrative Law Judge''
to read as follows:
Sec. 2.4 Definitions.
* * * * *
Administrative Law Judge means an individual appointed by the
Commission pursuant to 5 U.S.C. 3105 to conduct proceedings subject to
this part.
* * * * *
0
3. In Sec. 2.109, revise paragraph (a) and add paragraph (e) to read
as follows:
Sec. 2.109 Effect of timely renewal application.
(a) Except for the renewal of licenses identified in paragraphs (b)
through (e) of this section, if at least 30 days before the expiration
of an existing license authorizing any activity of a continuing nature,
the licensee files an application for a renewal or for a new license
for the activity so authorized, the existing license will not be deemed
to have
[[Page 70438]]
expired until the application has been finally determined.
* * * * *
(e) If the licensee of an Independent Spent Fuel Storage
Installation (ISFSI) licensed under subpart C of part 72 of this
chapter files a sufficient application for renewal under Sec. 72.42 of
this chapter at least 2 years before the expiration of the existing
license, the existing license will not be deemed to have expired until
the application has been finally determined.
0
4. In Sec. 2.202, redesignate paragraph (a)(3) as paragraph (a)(3)(i)
and revise the newly redesignated paragraph, and add paragraph
(a)(3)(ii) to read as follows:
Sec. 2.202 Orders.
(a) * * *
(3)(i) Inform the licensee or any other person to whom the order
was issued of their right, within twenty (20) days of the date of the
order, or within such other time as may be specified in the order, to
demand a hearing on all or part of the order, except in a case where
the licensee or other person to whom the order was issued has consented
in writing to the order;
(3)(ii) State that a request for a hearing by any other person who
may be adversely affected by the order must be made within twenty (20)
days of the date of the order, or within such other time as may be
specified in the order, and must meet the requirements of Sec. 2.309;
* * * * *
0
5. In Sec. 2.313, revise paragraph (a)(1) to read as follows:
Sec. 2.313 Designation of presiding officer, disqualification,
unavailability, and substitution.
(a) * * *
(1) An Atomic Safety and Licensing Board appointed under Section
191 of the Atomic Energy Act of 1954, as amended, or an administrative
law judge appointed by the Commission pursuant to 5 U.S.C. 3105, for a
hearing conducted under subparts G, J, K, L, or N of this part; or
* * * * *
0
6. In Sec. 2.323, revise paragraphs (a)(2) and (c) to read as follows:
Sec. 2.323 Motions.
(a) * * *
(2) Presentation and disposition. All motions must be addressed to
the Commission or other designated presiding officer. All motions,
other than motions for summary disposition, must be made no later than
ten (10) days after the occurrence or circumstance from which the
motion arises. All written motions must be filed with the Secretary and
served on all parties to the proceeding.
* * * * *
(c) Answers to motions. For all written motions, other than motions
for summary disposition, within ten (10) days after service of the
motion, or other period as determined by the Secretary, the Assistant
Secretary, or the presiding officer, a party may file an answer in
support of or in opposition to the motion, accompanied by affidavits or
other evidence. The moving party has no right to reply, except as
permitted by the Secretary, the Assistant Secretary, or the presiding
officer. Permission may be granted only in compelling circumstances,
such as where the moving party demonstrates that it could not
reasonably have anticipated the arguments to which it seeks leave to
reply.
* * * * *
0
7. In Sec. 2.337, revise paragraph (d) to read as follows:
Sec. 2.337 Evidence at a hearing.
* * * * *
(d) Exhibits. Exhibits must be filed through the agency's E-Filing
system, unless the presiding officer grants an exemption permitting an
alternative filing method under Sec. 2.302(g)(2) or (g)(3) or unless
the filing falls within the scope of Sec. 2.302(g)(1) as not being
subject to electronic transmission. When an exhibit is not filed
through the E-Filing system, the presiding officer may permit a party
to replace with a true copy an original document admitted into
evidence. Information that a party references through hyperlinks in an
exhibit must be submitted by that party, in its entirety, either as
part of the exhibit or as a separate exhibit, for that information to
be included in the evidentiary record.
* * * * *
0
8. In Sec. 2.348, revise paragraph (b)(2) introductory text to read as
follows:
Sec. 2.348 Separation of functions.
* * * * *
(b) * * *
(2) Communications to or from Commissioners, members of their
personal staffs, employees of the Office of Commission Appellate
Adjudication, Commission adjudicatory employees in the Office of the
General Counsel, and the Secretary and employees of the Office of the
Secretary, regarding--
* * * * *
0
9. In Sec. 2.706, revise paragraph (a)(5) to read as follows:
Sec. 2.706 Depositions upon oral examination and written
interrogatories; interrogatories to parties.
(a) * * *
(5) When the testimony is fully transcribed, the deposition must be
submitted to the deponent for examination and signature unless he or
she is ill, cannot be found, or refuses to sign. The officer shall
certify the deposition or, if the deposition is not signed by the
deponent, shall certify the reasons for the failure to sign. The
deposing party shall promptly transmit an electronic copy of the
deposition to the Secretary of the Commission for entry into the
electronic docket.
* * * * *
0
10. In Sec. 2.711, revise paragraph (h) to read as follows:
Sec. 2.711 Evidence.
* * * * *
(h) Exhibits. Exhibits must be filed through the agency's E-Filing
system, unless the presiding officer grants an exemption permitting an
alternative filing method under Sec. 2.302(g)(2) or (g)(3) or unless
the filing falls within the scope of Sec. 2.302(g)(1) as not being
subject to electronic submission. When an exhibit is not filed through
the E-Filing system, the presiding officer may permit a party to
replace with a true copy an original document admitted into evidence.
Information that a party references through hyperlinks in an exhibit
must be submitted by that party, in its entirety, either as part of the
exhibit or as a separate exhibit, for that information to be included
in the evidentiary record.
* * * * *
0
11. In appendix B to part 2, under section II, revise the table ``Model
Milestones [10 CFR Part 2, Subpart L]'' to read as follows:
Appendix B to 10 CFR Part 2--Model Milestones To Be Used by a Presiding
Officer as a Guideline in Developing a Hearing Schedule for the Conduct
of an Adjudicatory Proceeding in Accordance With 10 CFR 2.332.
* * * * *
II. * * *
[[Page 70439]]
Model Milestones
[10 CFR part 2, subpart L]
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Within 140 days of publication Presiding officer decision on
of notice in Federal Register. intervention petitions and
admission of contentions.
Within 55 days of presiding Presiding officer to set
officer decision granting intervention initial schedule for
and admitting contentions. proceeding, based on staff
schedule for issuing draft and
final SERs and any necessary
NEPA document.
Within 30 days of issuance of Proposed new or amended
SER and any necessary NEPA document. contentions filed after the
deadline on SER and necessary
NEPA documents due.
Within 30 days of issuance of Motions for summary disposition
SER and any necessary NEPA document. on previously admitted
contentions due.
Within 85 days of issuance of Presiding officer decision on
SER and NEPA document. admission of proposed new or
amended contentions filed
after the deadline and motions
for summary disposition;
presiding officer sets
schedule for remainder of
proceeding.
Within 14 days after presiding All parties complete updates of
officer decision on new or amended mandatory disclosures.
contentions filed after the deadline.
Within 115 days of issuance of Motions for summary disposition
SER and NEPA document. due.
Within 155 days of issuance of Written direct testimony filed.
SER and NEPA document.
Within 175 days of issuance of Evidentiary hearing begins.
SER and NEPA document.
Within 90 days of end of Presiding officer issues
evidentiary hearing and closing of initial decision.
record.
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* * * * *
Dated October 21, 2020.
For the Nuclear Regulatory Commission.
Margaret M. Doane,
Executive Director for Operations.
[FR Doc. 2020-24155 Filed 11-4-20; 8:45 am]
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